The labor panorama in Mexico is undergoing a transformation process, and the reform to the Federal Labor Law is the epicenter of these changes, particularly for workers of digital platforms such as Didi, Uber, InDrive and Rappi. Ricardo Martínez Rojas and Claudio Martínez Santistevan, specialized lawyers, explain how this reform could create an opening for new forms of work, even paving the way for other sectors such as content creators.
The Concept of Subordination and the Change Toward Income
Ricardo Martínez Rojas, founding partner of De la Vega & Martínez Rojas, brings attention to the fundamental change in the employment relationship introduced by the reform. Instead of being based on subordination, as is the case in traditional office or factory jobs, the model shifts to an income-based model. “What matters now is the net salary received by the worker each month”, he says. If a platform worker is able to earn at least the net general minimum wage, they are considered to be workers and gain access to social security benefits, even if this is not their constant income. This change has profound implications, particularly in terms of coverage for work-related accidents.
“What matters now is the net salary received by the worker each month”
— Ricardo Martínez Rojas, founding Partner of the De La Vega & Martínez Rojas Law Firm
Work in digital platforms is primarily characterized by the flexibility that it offers employees. There is no direct subordination relationship, as in traditional jobs in which the employer has total control over working hours and tasks. Platform workers, like Uber drivers or Rappi delivery people, are free to decide when, where and how to conduct their work. This poses a new challenge for the legal framework, which historically has been based on subordination as one of the fundamental pillars of the employment relationship
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In this new scheme, what matters is the income generated by the worker. If a person reaches an income that is equivalent to the net general minimum wage, then they are considered to be workers. The reform, however, has a facet that is even more innovative: if the worker has a work-related accident while performing their work, even if they have not reached the minimum net income for that month, the platform will be held responsible, and the worker will have the right to social security coverage.
Social security: Who is the employer?
The most important point of this reform is that, even if the worker does not always receive a fixed salary, they have the right to labor-risk coverage if they have an accident while working for one of these platforms. Thus, if an Uber driver has an accident while working, even if they have not reached the threshold of the minimum wage, the platform will be accountable and will cover the social security costs. This change seeks to protect nearly one million people that work under this scheme.
A key aspect introduced by the reform is who is considered to be the employer.In the traditional scheme, the employer is the company that the employee works for, and the employment relationship is based on direct subordination. But in the context of digital platforms, the platform itself, such as Uber or Didi, is considered to be the employer. This means that if a platform worker has an accident while performing a task for the platform, the platform becomes their employer for social security purposes.
The Role of the Employer and Transparency in Algorithms
Claudio Martínez Santistevan, associate at the same Firm, adds a key point relating to the technology behind these platforms. “The employer is not the platform itself, but the person that manages the digital platform. And even though there is no direct subordination as in traditional jobs, there is what we call algorithmic subordination”, he explains. This concept refers to the control that platform algorithms exerts over the workers, from the assignment of tasks to monitoring their performance.
Algorithmic subordination is a relatively new phenomenon that has emerged with the growth of digital platforms. In this new model, the employer does not give direct orders about what to do; the worker is supervised and directed by an algorithm that manages the workload and assignments. For example, platforms like Uber or Didi assign routes and schedules to their conductors through algorithms, which limits the capability of the workers to decide when and at what time to perform their work. Even though workers can choose their shifts, the decisions made by the algorithm have a considerable influence on their workflow.
Martínez also mentions that, in terms of transparency, platforms have to disclose the manner in which their algorithms affect workers, something that could change the way in which platforms manage their workers. The reform to the Federal Labor Law establishes that employers have the obligation of being transparent in their algorithms. This means that workers must be able to understand the way in which tasks are assigned to them and how the decisions that affect their work performance are made.
“The employer is not the platform itself, but the person that manages the digital platform. And even though there is no direct subordination as in traditional jobs, there is what we call algorithmic subordination.”
— Claudio Martínez Santistevan
Content Creators and the Future of the Labor Legislation
The debate is not limited to Uber drivers or Rappi delivery people. Martínez Rojas mentions that in countries like Germany, similar laws are already being applied to content creators, who also operate within digital platforms. In Mexico, the reform could pave the way for content creators such as YouTubers to receive the same benefits as transportation platform workers.
In fact, the intervention of digital platforms such as YouTube poses an interesting question: if a content creator spends a significant part of their time generating content, should they be considered as workers with labor rights? The ILO has acknowledged digital platforms as a form of intermediation, which means that any person that uses a platform for generating income must have access to the labor rights that are granted to traditional workers.
Challenges and Gaps in the New Law
While the reform is a major step toward the regulation of work in platforms, it also poses several practical challenges. One of them is how to implement unionization, given that, as explained by Martínez Santistevan, the nature of platform jobs complicates unionization. “There is no physical workplace, and the employment relationship changes constantly”, he points out.
Additionally, the problem of the calculation of net incomes and potential algorithmic discrimination are issues that still need to be addressed to ensure that workers’ rights are fully complied with. The law also establishes that platforms must be clear in regard to net incomes, which could lead to discrepancies between the money received by the worker and the money that is destined for operating expenses, such as vehicle maintenance or platform commissions.
The Future of Digital Labor Legislation
The reform is also laying the groundwork for a greater inclusion of platform workers in social security, an aspect that could become a model that is applicable to other sectors. In Germany, as mentioned by the lawyers, YouTubers are already being unionized, which opens a new perspective on the way in which content creators could be treated in Mexico in terms of labor.
In conclusion, the reform to the Federal Labor Law seeks to adapt legislation to the realities of digital economy, but there is still much to be done to ensure that digital platform workers enjoy full and proper protection. Will Mexico be next in acknowledging content creators as platform workers? Time will tell, but this change to the legislation could be just the beginning.
