Aplicativos de transporte e o controle por algoritmos: repensando o pressuposto da subordinação jurídica

Abstract

As an outcome of the continuous development of information and communication technology,Big Data and internet of things, Uber, 99 and Cabify have arisen. These companies operate asprivate transport service and are a new sort of business venture that use electronic platforms toconnect poles of supply and demand. Uber-like drivers, as a rule, are not under the protectionof Labor Law, since they are considered self-employed who work assuming the business risksthat are involved in transport services on-demand. We intend to reveal the actual nature of thework that they carry out: are they indeed self-employed, or are they employees of suchcompanies? We also study these novel working arrangements through the examination of:terms and conditions agreements presented to drivers before starting in those electronicplatforms; testimonies heard from ex-Uber drivers in an investigation launched andundertaken by Labor Public Attorneys Office; data obtained from interviews with driverswho work in Belo Horizonte. Considering the characteristics of Uber-like organizationalstructures, we conclude that their drivers are kept under algorithm-based controls, providingservices to an employer. In order to verify whether are present the requirements presuppositions studied and built by jurists for establishing employment relationshipbetween companies and their drivers, this work analyses: judicial precedents of RegionalLabor Court of the 3rd Region; sole judicial precedent of a Brazilian Court (Regional LaborCourt of the 2nd Region) that has recognized an employment relationship in such case; judicialprecedents of foreign courts. Due to divergent precedents, mainly those regarding legalsubordination, we propose critical theory of the Law based upon notions of economicdependence and work for an employer (or as a non-self-employed). Then, we conclude thatUber-like drivers should be considered as employees of electronic platforms to which theyprovide services.