ZHAO Hongmei*

 

Abstract: Under the employment model of online car-hailing platforms, the extension of working hours and increase of labor intensity for practitioners are driven by the orders from these platform companies and labor-related third parties. Also, they are more attributable to the internal driving force of practitioners themselves who hope to have more orders and earn more. It is impossible to apply the regulation system of the existing labor law to protect the rights and interests of employees in terms of working hours and labor intensity. The author suggests that the state should make special labor legislation to make the following targeted provisions: Online car-hailing platform companies and labor-related third parties that implement labor management and control over practitioners shall, on the premise of abiding by labor standards and industry rules, set various reasonable indicators of working hours and labor intensity through rules and take effective technical measures to control these two dimensions, so that practitioners can avoid serious overwork. Besides, by encouraging the provision of certain convenience for practitioners to take intermittent breaks, jointly building a compatibility system for different online car-hailing platforms, and establishing relevant operating rules, we can restrain practitioners from being seriously overworked. This is actually a multi-cooperative boosting legislative regulation approach.

 

Keywords: online car-hailing platform · practitioners · working hours · labor intensity · legislative regulation

 

 

In 2020, the number of flexible employees (hereinafter referred to as “practitioners”) who provide services via online platforms reached 84 million.¹The lack of protection of the rights and interests of these practitioners in terms of limits on their working hours and labor intensity has become a hot topic of social concern in China. On the one hand, some online platform companies point to the high incomes the practitioners can make. For example, according to a research report released by an online food delivery platform company, it’s not uncommon for full-time food delivery workers (also known as “riders”) to earn more than RMB 10,000 a month. Some of the highest-paid food delivery workers can even earn RMB 30,000 a month.² Others point out that such high incomes are obtained at the cost of the practitioners’ working ultra-long hours and with excessive and unreasonable intensity. According to a research report released by an online food delivery platform company, in 2018, the riding mileage of its longest riding food delivery employee was 78,000 kilometers, equivalent to nearly twice the circumference of the Earth.³ In September 2020, the article Take-out Riders Trapped in the System in the magazine Portrait went viral on social media. It revealed the practitioners’ excessive labor intensity.⁴ The fact that the labor intensity reaches the practitioners’ physical limits causes great physical damage and leads to accidents and occupational injuries. Although it seems right and reasonable to get more pay for more work and become rich by working harder, and China obviously won’t unfairly deprive people of the opportunity to get more pay for more work,⁵ but any labor should not be so excessive that it causes harm to human health. According to the requirement of the “decent work” put forward by the International Labour Organization (ILO) in the report of the 87th International Labour Conference in 1999, only safe work is decent.⁶ Some scholars believe that the practitioners are in a disadvantaged position in their relationships with the online platform companies and are extremely vulnerable to problems like ultra-long working hours that damage their physical and mental health. From the perspective of rights protection, the practitioners should enjoy all basic human rights. From the perspective of labor law, the protected rights of the practitioners are mainly social rights in the sense of international human rights law.⁷ These rights include reasonably limiting practitioners’ working hours and labor intensity to safeguard their well-being. Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) ratified by China clearly states: “The States Parties to this covenant recognize that everyone has the right to enjoy just or favourable working conditions, and in particular shall ensure: ... (d) reasonable limitations on resting, leisure, and working hours...”⁸

 

Ensuring reasonable working hours and labor intensity of the practitioners has become the focus of national and local policies in China. On July 16, 2021, eight government authorities, including the Ministry of Human Resources and Social Security (MOHRSS), jointly issued the Guiding Opinions on Protecting the Labor Rights and Interests of Workers Employed in New Forms (No. 56 [2021] document issued by the MOHRSS). It states that government authorities should improve the work and rest system, promote the industry to clearly define the labor quota standard, and scientifically stipulate the workload and labor intensity of workers. Government authorities should also urge companies to formulate and revise the rules and calculation methods that directly influence the rights and interests of workers, such as those regarding the working hours of online car-hailing platform practitioners. This document also requires relevant government authorities in all regions to earnestly meet the requirements and work out specific measures to be taken. On July 19, 2021, the All-China Federation of Trade Unions (ACFTU) issued the Opinions on Effectively Protecting the Labor Rights and Interests of Workers Employed in New Forms (No. 12 [2021] document issued by the ACFTU). On July 26, 2021, seven government authorities, including the State Administration for Market Regulation (SAMR) and the Cyberspace Administration of China (CAC), jointly issued the Guiding Opinions on Defining the Responsibilities of Online Food Delivery Platforms to Effectively Protect the Rights and Interests of Food Delivery Employees (No. 38 [2021] document issued by the SAMR and the CAC). Subsequently, the following provinces, autonomous regions, and municipalities directly under the Central Government issued specific measures to be taken to implement the No. 56 [2021] document issued by the MOHRSS, and a lot more will follow: on September 5, 2021, the Employment Leading Group of Beijing (ELGB) issued the Several Measures on Promoting the Healthy Development of New Employment Forms (No. 3 [2021] document issued by the ELGB); on September 28, 2021, eight government authorities including the Shandong Provincial Human Resources and Social Security Department (SPHRSSD) jointly issued the Opinions on Implementing the Protection of the Labor Rights and Interests of Workers Employed in New Forms (No. 15 [2021] document issued by the SPHRSSD); on October 12, 2021, eight government authorities including the Zhejiang Provincial Human Resources and Social Security Department (ZPHRSSD) jointly issued the Zhejiang’s Measures on Implementing the Protection of the Labor Rights and Interests of Workers Employed in New Forms (No. 56 [2021] document issued by the ZPHRSSD); on October 19, 2021, eight government authorities including the Fujian Provincial Human Resources and Social Security Department (FPHRSSD) jointly issued the Fifteen Measures for Implementing the Guiding Opinions of Eight Government Authorities Including the MOHRSS on Protecting the Labor Rights and Interests of Workers Employed in New Forms (No. 2 [2021] document issued by the FPHRSSD); on October 28, 2021, eight government authorities including the Shanxi Provincial Human Resources and Social Security Department (SPHRSSD) jointly issued the Plan for Implementing the Guiding Opinions of Eight Government Authorities on Protecting the Labor Rights and Interests of Workers Employed in New Forms (No. 59 [2021] document issued by the SPHRSSD); on October 29, 2021, 11 government authorities including the Chongqing Municipal Human Resources and Social Security Department (CMHRSSD) jointly issued the Opinions on Implementing the Protection of the Labor Rights and Interests of Workers Employed in New Forms (No. 38 [2021] document issued by the CMHRSSD).

 

The above-mentioned China’s national and local policies are essential to ensure practitioners’ enjoy reasonable working hours and labor intensity. However, China still needs to pay attention to the legal protection in the context of building a law-based China. Due to the unique characteristics of the employment model of online platforms, most of the legal relationships between online platform companies or labor-related third parties and the practitioners are difficult to be identified as labor relations.⁹ Therefore, in the form of labor service or cooperation, the “new” platform economy bypasses the regulation of all existing labor laws.¹⁰ The regulation of existing labor laws cannot ensure reasonable working hours and labor intensity of online car-hailing platform practitioners. We need to find out if the state must legislate against excessive working hours and the labor intensity of the practitioners. This paper analyzes and explains the necessity of implementing targeted legislative regulation on the working hours and labor intensity of the practitioners, indicates the problems to be solved and corresponding ideas, and puts forward specific suggestions on the legislative regulation.

 

 

According to the first sentence of Paragraph 1, Article 2 of the German Hours of Work Act, German scholars believe that hours of work refer to the time from the start of work to the end of work, excluding rest periods.¹¹ Scholars in China’s Taiwan believe that working hours generally refer to “the time during which the worker is restrained” and include stand-by time, but not rest periods.¹² Long working hours usually mean that workers are bound for a long time and consume a lot of effort. Yet, in the labor relationship employment model, there are also circumstances in which workers “are dawdling over their jobs” without working hard.

 

In the labor relationship employment model, employers monopolize the working hours of workers and assign work tasks to them during this period. Therefore, working hours are a very important concept in labor law. “Working hours are the time dimension of the existence of labor relations and the time scale for workers to earn a living and maintain physical and mental health and their family lives.”¹³ The working hours system is the most critical part of modern labor law, which starts by restricting working hours. Since 1890, one of the core demands of labor movements around the world has been the desire of workers to work eight hours a day, which is one of the topics of the first session of the International Labour Organization.¹⁴ However, working eight hours a day is a benefit in working hours obtained for traditional industrial workers on assembly lines against the background of the second industrial revolution. Over the past few decades, the practice of exploring working hour systems in developed countries has been diversified. Today, the once-dominant standard working hour system in many places — eight hours a day and 40 hours a week — is replaced by increasingly diverse, flexible, and non-standard ones.¹⁵ So it is a topic worthy of serious discussion whether it is still suitable for regulating the working hours of workers in China today.¹⁶ However, in comparison to the aforementioned changes in working hours, the changes in working hours of the platform practitioners discussed below pose a far greater challenge to the applicability of the existing labor laws.

 

In the employment model of online platforms, platform companies and labor-related third parties generally don’t monopolize the working hours of the practitioners because they focus on the result of whether the practitioners complete their specific order tasks or not. This employment model is task-oriented (on-demand labor services), autonomous, and intermittent. The practitioners’ income is calculated by the number of orders instead of working hours, so efficiency and ability are the most important factors.¹⁷ As some scholars have analyzed, in the manufacturing industry, the labor is often a part of the entire production chain and it is difficult to be separated from the corresponding machinery equipment and production organization; while in the service industry, the labor is easier to be segmented and the employment is more flexible, so the demand for flexible working hours increases significantly.¹⁸ What’s more, “time adaptation”, which means the balance between the practitioners’ working hours and their living time, is more of a match between their individual claims of rights and needs and between their goals and available resources.¹⁹ This leads to the fact that the extension of the practitioners’ working hours is driven by the orders from these platform companies and labor-related third parties. Also, they are more attributable to the internal driving force of the practitioners themselves who hope to have more orders and earn more. In other words, even if online platform companies and labor-related third parties are willing to restrict the working hours of the practitioners, the practitioners are not necessarily willing to reduce their working hours. They may even hope to obtain higher income by extending their working hours. It is impossible to apply the working hour regulation system of the existing Labor Law to protect the labor rights and interests of the practitioners in terms of working hours. Therefore, it is necessary to find out how the online platform companies and labor-related third parties attempt to control the working hours of the practitioners; and implement targeted legislative regulations on the working hours of the practitioners.

 

Beijing’s document Several Measures on Promoting the Healthy Development of New Employment Forms (No. 3 [2021] document issued by the ELGB) states: “Beijing should support companies to improve labor rules and regulations about working hours, rest periods, and vacations in accordance with laws for new employment forms such as online, home, and project-based jobs.” Another example is Article 17 of Zhejiang’s Measures on Implementing the Protection of the Labor Rights and Interests of Workers Employed in New Forms (No. 56 [2021] document issued by the ZPHRSSD). Both of them are good examples of policy intervention that has found the special laws and indicators and are worthy of reference for legislative regulation.

 

Shandong’s document Opinions on Implementing the Protection of the Labor Rights and Interests of Workers Employed in New Forms (No. 15 [2021] document issued by the SPHRSSD) states: “Companies should implement the national regulations on employees’ working hours, national holidays, and the paid annual leave. When the business is busy, on the premise of protecting the right to health of workers employed in new forms, working hours can be extended as appropriate but should not exceed the legal overtime limit; when the business is not busy, rest methods such as centralized holidays and job rotation can be used.” This is an example of policy intervention that reflects the fact that the policymaker hasn’t yet found the special laws and indicators. Now that the practitioners are categorized into the new, flexible employment form, how can it be possible to protect their rights and interests in working hours by implementing the national regulations on employees’ working hours, national holidays, and paid annual leave? Since the statutory standard working hour system in the labor relationship and the comprehensively calculated working hour system are not applicable to the practitioners, there are no such “overtime work” circumstances. Since the practitioners are categorized into informal employment (especially in the “crowdwork”²⁰ model), when there are few customer orders and a platform company is not busy, how can it be possible to arrange centralized holidays and job rotation? In this case, the practitioners are actually in a state of underemployment with no income. As some scholars argue, it is infeasible to simply apply existing labor laws and rules to employment in the platform economy.²¹

 

This paper believes that to implement targeted legislative regulation on working hours of the platform practitioners, we need to incorporate important universal indicators (see below) representing working hours into the scope of the Labor Standard Law and ask the platform companies and labor-related third parties to set reasonable rules and take effective technical measures in order to ensure reasonable working hours of the practitioners.

 

 

In the labor relationship employment model, employers monopolize the working hours of workers and assign work tasks to them during this period. They usually organize workers to conduct their work in a fixed workplace. Therefore, they cab uniformly arrange work breaks for those workers who are continuously engaged in high-intensity labor. For example, Article 35 of “Labor Standard Law” in Taiwan states that workers should have at least 30 minutes of rest time for each period of four hours of continuous work. However, if the shift system is used or the work is continuous or urgent, the employer may allocate other rest periods within the working hours.²² The Special Working Hours Management Regulation (Draft for Comment) issued by the MOHRSS and the former Legislative Affairs Office of the State Council (LAOSC) on May 8, 2012 states: Under the premise of ensuring normal production and operation, if the daily working hours exceed four hours, companies should ensure that workers should enjoy a rest period of no less than 20 minutes, and the rest periods should be included in the working hours.²³ This regulation was not promulgated and implemented in the end. The aforementioned provision that “companies should ensure that workers enjoy no less than 20 minutes of rest if the daily working hours exceed four hours” is indeed too absolute and generalized because it is only necessary to uniformly arrange work breaks for workers who are continuously engaged in high-intensity labor (especially workers engaged in heavy manual work).

 

In the employment model of the online platforms, the practitioners’ income is calculated by the number of orders rather than working hours. In order to obtain higher incomes, the practitioners voluntarily keep accepting assignments. This may lead to long or ultra-long work periods and high labor intensity. Suppose the platform companies and labor-related third parties implement labor management and control over the practitioners who provide online services. In that case, they should assume the responsibility to reasonably set rules on the maximum duration of each continuous, high-intensity order-taking period for the practitioners and achieve the aforesaid control reasonably through technical means. Some online platform companies have already actively fulfilled this corporate responsibility, providing a reference for setting the aforementioned legal obligations. For example, on September 4, 2018, the ride-hailing company Didi officially announced the introduction of the fatigue reminder function. The fatigue reminder function will be triggered when the continuous service time reaches three hours. In this case, the system automatically switches to the rest mode for 20 minutes.²⁴ It’s worth noting that it is only necessary for the online platform companies and labor-related third parties to provide such a function if the practitioners continuously provide services with high labor intensity because otherwise, the practitioners do not necessarily need to intermittently rest. Article 17 of the No. 56 [2021] document issued by the ZPHRSSD states: “Platform companies should give full play to their advantages in data technology and reasonably restrict the online working hours of the workers. For those who work continuously for more than four hours, companies should set a rest time of no less than 20 minutes.” The aforementioned regulation fails to consider that work breaks are only necessary when the practitioners are constantly providing high-intensity online service. It depends on specific industries and employment situations to define “high-intensity.” For example, although online food delivery is labor-intensive during the continuous process of food delivery, the problem with intensive orders and high labor intensity only occurs during the two peak hours of lunch and dinner. If workers are often in the state of waiting for orders while staying online, this is equivalent to taking intermittent breaks. However, suppose food delivery workers are also in a continuous delivery state beyond the two peak hours. In that case, it is still necessary to control the maximum duration of each continuous order-taking period. Therefore, the Fujian Labor Union Labor Law Supervision Notice asks online food delivery platform companies “to improve the order dispatching mechanism, optimize the delivery route, reduce labor intensity, and fully consider safety factors. For those workers who continuously deliver food for more than four hours, the system should send a fatigue reminder, and no orders should be dispatched to them within 20 minutes thereafter.”²⁵

 

For the above-mentioned part, this paper gives the following legislative regulation suggestions: First, the platform companies and labor-related third parties should set reasonable rules on the maximum duration of each continuous, high-intensity order-taking period for the practitioners. Second, online car-hailing platform companies and labor-related third parties should take effective technical measures to enable the app to automatically switch to a suspension state when each continuous, high-intensity order-taking period exceeds the time limit so that the practitioners are forced to observe rest time.

 

 

In the labor relationship employment model, employers monopolize the working hours of workers and assign work tasks to them during this period. The Labor Law focuses on the control of working hours and stipulates the maximum daily and weekly working hours and the maximum daily and monthly overtime hours under the standard working hour system. According to Article 36 of the Labor Law and Article 3 of the Regulations of the State Council on Working Hours of Employees revised by the State Council in 1995, eight hours a day and 40 hours a week are normal working hours under the so-called standard working hour system in China. According to Article 41 of the Labor Law, the employer may extend the working hours after consultation with the trade union and the workers due to the needs of production and operation, but the extended working hours generally should not exceed one hour per day; for special reasons, under the premise of ensuring the health of workers, the extended working hours shall not exceed three hours per day and 36 hours per month. For the non-standard working hour system, the Labor Law’s control of working hours is very weak.²⁶ Flexible, non-standard working hour systems such as the irregular working hour system have unpredictable working schedules, which causes unpredictable results. As a result, those workers under the non-standard working hour systems get paid less or work longer than full-time workers under the standard working hour system. This exacerbates the inequality problem in the labor market.²⁷

 

In the employment model of the platform economy, platform companies and labor-related third parties generally don’t monopolize the working hours of the practitioners because they focus on the result of whether the practitioners complete their specific order tasks or not. The practitioners’ income is calculated by the number of orders instead of working hours. Rather than saying that practitioners work long or extra-long hours in order to obtain high income, it is better to say that the large number of orders they voluntarily take cause their actual working hours to be long or extra-long. Most of the ultra-high-income practitioners are those who take orders for 15 hours or more every day. This “breaks the moral limits and the pure physical limits on workdays. Thus the time it takes for human bodies to stay healthy is occupied.”²⁸ Therefore, the legislation should regulate each day’s maximum total duration in which the practitioners take orders. Suppose the platform companies and labor-related third parties implement labor management and control over the practitioners who provide online services. In that case, they are obliged to set reasonable rules about the maximum duration of each day’s order-taking period for the practitioners on the premise of complying with the following important fundamental labor standard indicators. They should achieve the aforesaid control reasonably through technical means.

 

This paper advises the platform companies to set each day’s maximum total duration in which the practitioners take orders to be no more than 11 hours instead of eight hours. The reasons are that: first, in the labor relationship employment model, up to three hours of overtime in addition to eight hours of work is legal for the standard working hour system; while in the platform economy employment model, there is no such thing as overtime. Second, this maximum total duration does not include the time occupied waiting for orders, when the labor intensity of the practitioners is low. From the perspective of protecting the physical and mental health of the practitioners, it is reasonable that the maximum duration should not exceed 11 hours. No one can disregard what Marx denounced as: “working days are prolonged to an unnatural extent so that workers’ lifespans are shortened,” “capital does not care about workers’ lifespans. Its only concern is maximizing the use of labor in a single working day.”²⁹ Some platform companies have already actively fulfilled this corporate social responsibility, which provides a reference for setting the aforementioned legal obligations. For example, on September 4, 2018, Didi officially announced the fatigue reminder function. A fatigue reminder will be triggered when the accumulative billing duration reaches ten hours. Then the driver needs to rest for more than six hours in a row to reset the accumulative billing duration before proceeding to take orders.³⁰ According to a survey of dozens of online car-hailing drivers in Beijing in the past two years, when the accumulative billing duration reaches ten hours, the drivers often feel extremely fatigued because, in addition to the ten hours, there are also online waiting times during which they often drive on the road, rather than stop and rest as it is difficult to park their cars or the parking fee is high in central areas of the large city. This paper advises the platform companies to set each day’s maximum total duration in which the practitioners take orders to be no more than 11 hours, which is already a relatively loose requirement. On the premise of abiding by this fundamental labor standard, online car-hailing platform companies and labor-related third parties may further reasonably set each day’s maximum total duration in which the practitioners take orders. For example, Didi set this duration as no more than ten hours.

 

The relevant legislative regulation suggestions put forward in this paper are: First, the platform companies and labor-related third parties should reasonably set rules about each day’s maximum total duration in which the practitioners take orders. This maximum total duration should not be more than 11 hours. Second, the platform companies and labor-related third parties should take effective technical measures to enable their apps to automatically switch to a suspension state when each day’s total duration in which the practitioners take orders exceeds the time limit.

 

 

In the labor relationship employment model, some working hours of the workers are calculated as overtime hours because the standby time is not deducted. German scholars believe that preparation, standing by, and readiness upon request are not completely considered labor activities, but they are actually related to the definition of working hours.³¹ China’s current laws and regulations still haven’t accurately recognized standby time as part of working hours. Some scholars believe that, in general, the standby time at workplaces should be considered as being part of working hours,³² as no matter what state of labor intensity workers are in, they cannot use their time as they wish. Even if they are in a relatively idle state at work, they still spend time realizing the employers’ interests under their arrangements.³³ Additionally, one more important working hour-related indicator to pay attention to is the minimum rest period between two working days. The German Hours of Work Act regulates the minimum rest period between two working days. According to Paragraph 1, Article 5 of the German Hours of Work Act, the uninterrupted rest period between two working days should be at least 11 hours. In those more special fields such as ride-hailing or food deliveries, this minimum rest period can be temporarily reduced to ten hours provided that a commutative rest period can be arranged within one month or four weeks so that the minimum interval reaches 11 hours on average. According to sub-paragraph 3, Paragraph 1, Article 7 of the German Hours of Work Act, this minimum rest period can be temporarily reduced to nine hours through agreement in the form of a collective contract, provided that the average minimum interval of 11 hours can be achieved by arranging commutative rest within the agreed period.³⁴ The current laws in China do not stipulate the minimum rest period between two working days.

 

The platform economy employment model is characterized by fragmented working hours and the a combination of work and rest. Many practitioners tend to voluntarily extend their online time in order to improve their chances of obtaining orders by increasing the waiting time for orders. Increasing the waiting time for orders should not simply be regarded as extending working hours. If the waiting time for orders is excluded, then it is unlikely that the working hours of practitioners will be ultra-long. Some researchers believe that the practitioners’ order-taking time only accounts for 46 percent of their non-assignment work time, that is, more than half of their time is spent waiting on the roadside or driving on the road without a passenger or delivery. Such non-working time is sometimes more than the actual working time spent providing the ordered service.³⁵ Other researchers highlight the obvious “rush hour effect” of online food delivery platforms, in which lunch and dinner time are the peak hours for food delivery workers to take orders. While at other times, the unpredictability of orders often means ultra-long “standby time.”³⁶ Although the actual delivery time of a food delivery worker may be less than four hours per day, their actual online time is as long as more than ten hours a day. Most of the time, they are in the state of “waiting for orders.” The traditional continuous working hours are broken up into unpredictable fragmented working hours. During the time of waiting for orders, the practitioners are not in a state of complete rest, but have a certain amount of physical and energy consumption. The extra-long waiting time for orders is actually one of the contributors to the excessive overwork of the practitioners. Most of the ultra-high-income platform practitioners are online for 15 hours or more each day. Some of them only take a short break during the waiting time period when there are few orders. They only have a short sleep and rest time or even forgo such rest time. They are taking orders or waiting for orders most of the time during their working day. Therefore, legislation should regulate the practitioners’ maximum online waiting time for orders, maximum time taking orders, and maximum service time. Suppose platform companies and labor-related third parties implement labor management and control over the practitioners who provide online services. In that case, they are obliged to set reasonable rules on the practitioners’ maximum online waiting time for orders, maximum time of taking orders, and maximum service time on the premise of complying with the following important fundamental labor standard indicators. They should achieve the aforesaid control through reasonable technical means.

 

This paper advises relevant authorities to set the fundamental labor standard on the minimum interval of the practitioners going online between two days to be no less than eight hours because under normal circumstances, people should enjoy at least a solid eight hours of rest for eating, sleeping, and leisure. According to the findings of a survey conducted by some medical experts, lack of sleep is closely related to poor health. In the survey of a specific target group’s main health symptoms of below-par health, it found that lack of sleep or poor sleep quality accounted for the largest proportion of the main symptoms of the above-mentioned survey respondents, suggesting that sleep deprivation is a significant contributor to a sub-healthy brain and body.³⁷ The University of Warwick in the United Kingdom worked with researchers from the Medical School of the University of Naples Federico II in Italy to conduct a systematic analysis of the relevant data of 16 prospective studies in countries such as the United Kingdom and the United States in order to study the relation of sleep duration to the death rate. The study, whose tracking periods ranged from 4 to 25 years, involved 1,382,999 people and recorded 112,566 deaths. The analysis results showed a direct link between constant short sleep duration (less than 6 hours per day) and premature death. People who sleep less than six hours a day are 12 percent more likely to die prematurely than those who sleep between six and eight hours a day.³⁸ “Capital’s answer to these questions is: the working day is 24 hours minus a few hours of rest. Without this time off, the workforce simply cannot go back to work.”³⁹ “Working hours are inversely proportional to rest time or vacations... The more hours you work, the less time you have for rest and vacation; however, you must reduce your working hours if you want to increase rest and vacation time.”⁴⁰ This paper sets the minimum interval of practitioners going online between two days to be no less than eight hours, which is already a relatively short requirement. Based on this fundamental labor standard, the online platform companies and labor-related third parties may further reasonably set rules about the minimum interval of practitioners going online between two days. For example, they may further set this to be no less than nine or ten hours. Didi’s rule is that when the accumulative billing duration of a driver reaches ten hours, a fatigue reminder will be triggered. Then the driver needs to rest for more than six hours in a row⁴¹. This paper believes that six hours is too short.

 

The relevant legislative regulation suggestions put forward in this paper are: First, online platform companies and labor-related third parties should set reasonable rules about the practitioners’ maximum online waiting time for orders, maximum time of taking orders, and maximum service time. They should also set the minimum interval of practitioners going online between two days to be no less than eight hours.

 

Second, the platform companies and labor-related third parties should take effective technical measures to enable the app to automatically switch to an offline state for practitioners when the minimum interval of practitioners going online between two days is less than eight hours.

 

 

Labor intensity refers to the actual physical and mental efforts used to complete certain work tasks during certain working hours, including but not limited to the degree of work pressure and labor density. High labor intensity indicates that the labor process is tense and busy, and the labor density is high.

 

In the traditional labor relationship employment model, employers monopolize the working hours of workers and assign work tasks to them during this period. Therefore, working hours and labor intensity are closely related to each other. When the law makes it difficult for employers to extend their working hours, they try to increase labor intensity; when there are circumstances in which workers “are dawdling over their jobs” without working hard, employers will try to fix this by increasing labor intensity. Marx succinctly pointed out in Das Kapital: “Forced shortening of working days greatly promotes the development of productive forces and savings in production conditions. It also forces workers to increase the labor consumed within the same period, increase the tension of the workforce, and fill the gaps in labor time more closely”; “A more intensive work day produces more products than a less intensive work day of the same number of working hours.”⁴² China’s Labor Law focuses on the control of working hours under the standard working hour system rather than the control of labor intensity. It only restricts labor quotas in the piecework system, which lacks effective control over the labor quota reasonably determined by employers. The significant changes in the labor intensity of the platform practitioners pose a far greater challenge to the applicability of the existing Labor Law.

 

In the employment model of platform economy, the income of the platform practitioners is calculated by the number of orders rather than working hours. This leads to an increase in the labor intensity of the practitioners. Even if the platform companies and labor-related third parties do not impose any restrictions on the labor intensity of the practitioners, the latter won’t dawdle over their jobs because doing so does not benefit them at all. They often proactively seek higher income by increasing their labor intensity (taking orders intensively). Another reason is that the platform companies and labor-related third parties often use point systems based on factors such as the number of customer approvals received and the rejection rate encouraging the incentive schemes for the practitioners. The higher point level you are at, the higher probability of taking better orders you’ll have. Thus you’ll have more opportunities to increase your income.⁴³ The control of labor intensity is inherently weak is in China’s Labor Law, so basically, there is no law regarding reasonable labor intensity of the platform practitioners. Therefore, it is necessary to find out how the platform companies and labor-related third parties attempt to control the labor intensity of the practitioners and implement targeted legislative regulations.

 

The No. 2 [2021] document issued by the FPHRSSD states: “Companies should reasonably formulate the rest system that matches the work tasks and the labor intensity of the workers in light of the actual situation so as to ensure the physical and mental health of their workers.” The No. 38 [2021] document issued by the CMHRSSD states: “Industrial authorities should... urge platform companies to optimize rules and calculation methods, set fatigue reminders, and avoid excessive labor intensity.” These are all good examples of policy intervention in an attempt to find out special laws and indicators and are worthy of reference for legislative regulation.

 

Article 18 of the No. 56 [2021] document issued by the ZPHRSSD states: “Companies should reasonably determine the labor quota in accordance with the national legal working hour system... More than 90 percent of the employees of the same position in the company should be able to complete the determined labor quota within the legal working hours.” This is an example of policy intervention, which reflects that the policymaker hasn’t yet found the special laws and indicators which should be avoided in legislative regulation. According to Article 37 of the Labor Law, for work ers whose salaries are based on piecework, employers should reasonably determine their labor quota and the piece rate standard in accordance with the standard working hour system. Since the practitioners are not paid according to the standard working hour system, employers cannot reasonably determine their labor quota, a labor intensity indicator, based on the standard working hour system. Therefore, the labor intensity indicator discussed below should not be referred to as the “labor quota” based on the concept of existing labor laws.

 

This paper believes that indicators representing the labor intensity of the platform practitioners cannot be unified due to the huge differences in the specific employment models employed by the platform companies, and labor-related third parties. The fact that practitioners often complete multiple order tasks at the same time makes it truly difficult to determine their actual labor intensity. Legislative regulation should not include fundamental labor standards. In the future, authorities can try to promote collective negotiation to establish industry-specific rules, but this is very difficult and may not be realistic in the short term. Once industry-specific rules are established, employers must not violate them. More important, the authorities should ask the platform companies and labor-related third parties to reasonably set rules and take effective technical measures to ensure the reasonable labor intensity of the practitioners.

 

 

In the labor relationship employment model, employers monopolize over working hours of workers and assign work tasks to them during this period. A worker needs to complete a certain work task assigned by the employer within a certain period. If the time is tight and the task is arduous, the worker may feel pressured and stressed. However, the Labor Law focuses on the control of working hours, especially the working hours under the standard working hoursystem. Since the time it takes different workers to complete a certain work task cannot be uniformly quantified in a specific labor relationship, it does not involve the control of the time it takes to complete a single work task. Such control can be interpreted as the employer’s autonomous right in terms of employment.

 

In the platform economy employment model, platform companies and labor-related third parties generally don’t monopolize the working hours of the practitioners. In this model, instead of using the traditional labor-management and control methods, companies use algorithm-based incentives to encourage the practitioners to keep providing online services. The practitioners’ income is calculated by the number of orders rather than working hours. In order to be in an advantageous position in the competition with their competitors, platform companies need to meet the needs of consumers, such as timely deliveries to the maximum extent, so they require the practitioners to complete orders as soon as possible within a standardly quantified short period of time. For example, the marketing slogan of an online food delivery platform is “XX Take-out delivers everything fast.” If the required time to complete each order is too short, the delivery worker often feels pressured, stressed, and is therefore more likely to have an accident. The advent of algorithms makes it possible to place strict demands on the time to complete a single order task. “In modern society, the essence of algorithms is nothing but a human-computer interaction decision, which is not mysterious or value-neutral.”⁴⁴ For example, in the field of online food deliveries, the algorithms estimate the delivery time based on factors like the length of the route, the traffic conditions, and the weather conditions. The delivery worker is under the limit of the estimated delivery time which is getting shorter and shorter. For example, the maximum delivery time for orders with a certain distance has changed from 50 minutes to 35 minutes, 30 minutes, and 28 minutes. Under this evaluation system of the platform, late delivery results in fines for the food delivery workers that reduces their incomes, and puts them under huge mental pressure. Food delivery workers can do nothing but speed, run a red light, and travel on the wrong side of the road to avoid being late and meet the ever-demanding delivery time requirement specified by the platform. The act of ignoring traffic rules is a result of an “inverse algorithm”, which is used by them as a last resort to battle against the system algorithms. It directly results in a sharp increase in the number of traffic accidents. However, the time estimated using the algorithms is not necessarily accurate. For example, the route identification is mostly determined by straight-line distance, and the estimated time doesn’t take into account factors such as the restaurant’s cooking time, the road conditions along the route, whether it is necessary to climb stairs, and the time it takes to wait for elevators.⁴⁵ Therefore, the authorities should implement legislative regulation against unrealistically short periods in which platform companies demand the practitioners to complete each order. Online car-hailing platform companies and labor-related third parties should assume the legal obligation to further reasonably set rules on the time it takes for the practitioners to complete each order to avoid excessively short estimated time. What’s more, they should reasonably control the “time points” and “periods” for completing each order through technical means. The No. 38 [2021] document issued by the SAMR and the CAC states: “By means of adopting the ‘medium algorithm’ to replace ‘the strictest one’, platform companies should relax the delivery time limit as appropriate.” The No. 2 [2021] document issued by the FPHRSSD states: “Platform companies should improve their assessment mechanism, optimize algorithm rules, and must not use the ‘strictest algorithm’ as an assessment requirement.” Some platform companies have already actively fulfilled this corporate social responsibility, which provides a reference for setting the aforementioned legal obligations. For example, in September 2020, Meituan issued a statement saying that while providing users with on-time delivery service for each take-out food order, the Meituan dispatch system would give the delivery workers eight minutes of flexible time for waiting for elevators and slowing down a bit at intersections. It would keep optimizing the system to ensure that food delivery workers have enough time for safe driving. Meanwhile, it would upgrade the appeal function for the delivery workers. Late deliveries and complaints due to special circumstances such as bad weather and accidents will not affect the workers’ assessment and income if the appeals and complaints are verified as justified. Another example is that in November 2021, Meituan announced that it would disclose the “estimated delivery time” algorithm and the “order dispatching” algorithm of its take-out delivery platform to the public; flexible supplementary time and subsidies would be provided for food delivery workers in scenarios such as special weather and delivery difficulties.⁴⁶

 

For the above-mentioned part, this paper gives the following legislative regulation suggestions: First, online car-hailing platform companies and labor-related third parties should reasonably set rules about the duration of each order taken by the practitioners from the beginning to the end of the service. Such rules must not violate industry rules (if any). Second, the platform companies and labor-related third parties should take effective technical measures such as improving their algorithms and taking extreme weather and other special circumstances into account in order to prevent the practitioners from feeling pressured and stressed due to the overly short duration of each order from its beginning to the end of the service so as to reduce the probability of accidents.

 

 

In the labor relationship employment model, employers monopolize over working hours of workers and assign work tasks to them during this period. Within a certain period, a worker may take multiple work tasks assigned by the employer at the same time. If the time is tight and the tasks are arduous, the worker may feel pressured and stressed. However, the Labor Law focuses on the control of working hours and does not involve the regulation of completing multi-tasks at the same time.

 

In the employment model of the platform economy, platform companies and labor-related third parties generally don’t monopolize the working hours of the practitioners because they focus on the result of whether the practitioners complete their specific orders or not. The practitioners’ income is calculated by the number of orders completed instead of working hours. In order to improve the labor efficiency and obtain higher income, the practitioners hope that platform companies give multiple order tasks to them at the same time. However, during the process of providing online services, the practitioners usually feel pressured and stressed due to too many orders. What’s more, this may lead to accidents. Meituan stipulates that each delivery worker can take a maximum of 12 orders at a time, and the system will automatically stop dispatching orders to those who have already taken 12 orders. However, in severe weather, its order dispatching system is prone to crash. In this case, human intervention is required to adjust the orders. As a result, the number of orders taken by each delivery worker is doubled. A delivery worker may take up to 26 orders at the same time.⁴⁷⁽⁴⁷⁾ When the labor intensity reaches the physical limit, overwork causes great physical harm and may even cause sudden death.⁴⁸ Extreme fatigue may result in weakened attention, which leads to traffic accidents and other occupational injuries. Therefore, the authorities should have legislative regulations on the practitioners taking multiple orders simultaneously. Suppose the platform companies and labor-related third parties implement labor management and control over the practitioners who provide online services. In that case, they are obliged to set reasonable rules about the total number of orders taken by a practitioner at the same time within a certain time period and the interrelation between them so as to avoid dispatching too many orders to the practitioner or creating confusion among the orders. They should achieve the aforesaid control reasonably through technical means. In fact, some platform companies have already actively fulfilled this corporate social responsibility, which provides a reference for setting the aforementioned legal obligations. For example, in November 2021,according to Ele.me, if the weather in an area is extremely bad, Ele.me will shut down its delivery service in the area to ensure the safety of the food delivery workers.⁴⁹

 

For the above-mentioned part, this paper gives the following legislative regulation suggestions: First, platform companies and labor-related third parties should reasonably set rules about the total number of orders taken by a practitioner at the same time within a certain period and the interrelation between them. Such rules must not violate industry rules (if any). Second, the platform companies and labor-related third parties should take effective technical measures such as improving their algorithms and taking extreme weather and other special circumstances into account in order to prevent the practitioners from feeling pressured and stressed due to too many orders having to be completed at the same time within a certain period so as to prevent orders being confused and to reduce the probability of accidents.

 

 

In the labor relationship employment model, practitioners may voluntarily take many orders and tasks, leading to excessive labor intensity. In actual practice, platform companies tend to unrestrictedly dispatch more or better orders (commonly known as “profitable orders” within the platform economy community) to those practitioners who have a high degree of “adhesiveness”, which causes overwork. This situation needs to be fixed to some extent. Therefore, there should be legislative regulation on the maximum number of orders that taken by a practitioner or their amount of work measured in other ways. Suppose the platform companies and labor-related third parties implement labor management and control over the practitioners who provide online services. In that case, they are obliged to set reasonable rules about the maximum number of orders taken by a practitioner within a day, a week, and a month or the maximum amount of labor measured in other ways (such as the accumulated mileage) so as to avoid dispatching too many orders to a practitioner or prevent the practitioner from taking too many orders or tasks. They should achieve the aforesaid control reasonably through technical means. The No. 38 [2021] document issued by the SAMR and the CAC states: “Platform companies should improve their order dispatching mechanism, optimize distribution routes, reasonably determine the order saturability, and reduce the labor intensity.” It is worth noting that from the survey of an online food delivery platform company in 2021, it was found that in terms of online food delivery, there is no direct proportional correlation between the number of orders taken by a food delivery worker and the high labor intensity. The several orders taken by the worker may be take-out food from the same restaurant ordered by multiple employees of the same organization at the same time (although the probability of this circumstance is not high). Therefore, it needs a better mechanism to calculate the maximum number of orders taken, but this doesn’t mean that it is unnecessary to control the maximum number of orders taken.

 

For the above-mentioned part, this paper gives the following legislative regulation suggestions: First, the platform companies and labor-related third parties should set reasonable rules on the maximum number of orders taken by a practitioner within a day, a week, and a month or the maximum amount of labor measured in other ways. Second, the platform companies and labor-related third parties should take effective technical measures to enable their app to automatically switch to a suspension state when the number of orders taken by a practitioner within a day, a week, and a month or the amount of labor measured in other ways exceeds the maximum limit.

 

 

 

In the labor relationship employment model, employers monopolize the working hours of workers and assign work tasks to them during this period. They usually organize workers to conduct their work in a fixed workplace. Therefore, they will usually arrange uniform work breaks for workers engaged in high-intensity labor (workers are humans, not machines).

 

In the platform economy employment model, platform companies and labor-related third parties generally don’t monopolize the working hours of the practitioners because they focus on whether the practitioners complete their specific order tasks or not. What’s more, they don’t organize workers to conduct their work in a fixed workplace. Therefore, it is impossible to uniformly arrange work breaks for those practitioners who provide online services. Some researchers pointed out: “Most of the regulation tools used by the government still take the form of command and control, lacking inducement measures and means of social self-regulation. The government’s complete regulation is considered to be inefficient management with huge fiscal expenditure.”⁵⁰ The author also believe that in addition to the mandatory function, the legal system in modern society also provides a stable governance structure with various (including incentive) norms and rules. Through this governance structure, members of the society can plan and manage their own social lives while seeking advantages and avoiding disadvantages.⁵¹ Therefore, the government should encourage the platform companies and labor-related third parties to ensure practitioners take intermittent breaks during the process of providing online services. Different platform companies, labor-related third parties, and labor unions should cooperate to promote the sharing of facilities. Then all of them can make use of the rest stations, and the government should commend this. The No. 3 [2021] document issued by the ELGB states: “relevant authorities should mobilize companies and all sectors of society to help the workers employed in new forms solve the difficulties in resting, meals, parking, and charging in between their work.” Some platform companies have already actively fulfilled this corporate social responsibility, indicating that it is feasible to set this incentive measure in the legislative regulation. For example, in July 2020, Ele.me announced it will work with 26,000 offline stores in 120 cities to launch the “Rider Fortress” plan and include additional more than 6,000 offline stores into the lineup, allowing Ele.me delivery riders to rest temporarily and enjoy light meals and water.⁵² Ele.me is also working with the All-China Federation of Trade Unions to establish Blue Rider Stations and set aside exclusive areas for riders to rest. Some rider stations provide free hot drinks, discounted meals, and mobile phone battery charging.⁵³ Another example is Meituan. It worked with more than 2,200 restaurants around China to provide food delivery workers with long-term exclusive discounted meals and free meals during holidays. It also provides food delivery workers with exclusive privileges such as discounts for movies, parks, and karaoke.⁵⁴

 

For the above-mentioned part, this paper gives the following legislative regulation suggestions: The government should encourage the platform companies and labor-related third parties to make it convenient for the practitioners to take intermittent breaks in the process of providing online services. The government should commend platform companies and labor-related third parties for cooperation and sharing.

 

 

In the labor relationship employment model, although employers monopolize the working hours of workers and usually organize workers to conduct their work in a fixed workplace, the eight-hour work day system is regarded as a way to provide wage earners with adequate income and non-work time.⁵⁵ If the worker is not satisfied with the labor remuneration obtained for the working hours monopolized by the employer, they are likely to choose to obtain additional income by taking part-time jobs in other atypical labor relations.⁵⁶ Therefore, part-time jobs have long existed.

 

In the platform economy employment model, the platform companies and labor-related third parties generally don’t monopolize the working hours of the practitioners exclusively because they focus on the whether the practitioners complete their specific order tasks or not. What’s more, they don’t organize workers to conduct their work in a fixed workplace. The practitioners’ income is calculated by the number of orders rather than working hours, which provides great convenience for people to work part-time anytime, anywhere. Part-timers account for a large proportion of the practitioners, including online car-hailing drivers and food delivery workers. According to the results of the survey Meituan Rider Employment Report During the COVID-19 Pandemic in 2019 and 2020 released by Meituan Research Institute, 58.8% of the riders surveyed did the delivery work for less than four hours per day on average⁵⁷. This shows that part-time jobs are actually the typical work style of the “crowdwork” practitioners. Such practitioners often do the same job (for example, working as both a Meituan food delivery worker and an Ele.me Fengniao Logistics food delivery worker) or different jobs (for example, working as both a Meituan food delivery worker and a “Flash Delivery” rider) on different online car-hailing and takeout platforms.

 

As mentioned earlier, some platform companies have taken effective technical measures to control the working hours and labor intensity of severely overworked practitioners. However, measures taken by an individual platform company cannot control practitioners’ total time of taking orders and waiting for orders on different online car-hailing platforms. Thus, there is no effective control over the overwork of practitioners. According to field research, some car-hailing drivers (car owners) have registered on multiple car-hailing platforms. When their Didi application switches to a suspension state because of the fatigue reminder, they proceed to take orders on other car-hailing platforms, and the daily cumulative time of taking orders can be as long as 14-15 hours. Therefore, the excessive overwork of practitioners as a result of taking and waiting for orders on different online car-hailing platforms can only be truly restrained by enabling the labor administrative authorities of the State Council and other administrative authorities to strengthen communication and cooperation with enterprise federations, industry associations, and the platform companies, leading them to build a compatible internet system across the platforms, and establishing relevant operating rules for all. For example, when a practitioner’s daily cumulative time of taking orders exceeds a certain time, the compatible internet system encompassing all the platforms will respond so that all the platforms force the practitioner to go offline at the same time. This requires all practitioners to use their ID numbers for real-name authentication and perform face recognition when receiving orders so that they cannot take orders online by entering other practitioners’ ID numbers.⁵⁸ Otherwise, the control measure is useless.

 

Paragraph 2, Article 69 of the Electronic Commerce Law states: “The government takes measures to promote the establishment of a public data sharing mechanism to facilitate e-commerce operators to use public data according to the laws.” The above-mentioned provision provides a reference for the legislative regulation on the co-built compatible system across online car-hailing platforms. The development of modern internet information technologies such as big data and the internet of things makes it possible to co-build such a system in the future. Some researchers believe that big data refers to collecting data that cannot be perceived, acquired, managed, processed and served by using traditional IT technology and software and hardware tools within a limited time. Big data brings new opportunities for tapping the hidden value and new challenges in effectively organizing and managing this data. Today, the business community and even government departments have become highly interested in this research field.⁵⁹ Some researchers have pointed out: “The internet of things in a broad sense can be seen as the integration of information space with physical space. It digitalizes and connects everything and achieves efficient information interaction between objects, between objects and people, and between people and the real environment. Through new service models, it integrates various information technologies into social behaviors and takes the comprehensive application of these technologies in human society to a whole new level. ”⁶⁰

 

For the above-mentioned part, this paper gives the following legislative regulation suggestions: The labor administrative authorities of the State Council and other administrative authorities should strengthen communication and cooperation with enterprise federations, industry associations, and the platform companies in order to restrain the excessive overworking of practitioners as a result of taking and waiting for orders on different platforms by co-building a compatible internet system that encompasses all the platforms and establishing relevant operating rules. Unlike other legislative regulation proposals in this paper, which are realistically feasible, this legislative regulation proposal is forward-looking and will be feasible as the supporting technologies for the co-built compatible system platforms become a reality.

 

 

In 2018, the Standing Committee of the 13th National People’s Congress listed the “Fundamental Labor Standard” as one of the category-3 legislative planning projects⁶¹. Relevant research institutions and scholars are working on drafting and collecting suggestions for the Labor Standard Law.⁶² As some researchers believe, this work is very likely to be in the current Labor Standard Law framework. The internal flexibility will include the protection of the labor rights and interests of practitioners in its scope of application. As a non-standard labor relationship, it aims to achieve the legislative purpose by exempting the application of some general labor standard provisions or making special regulations for standard labor exceptions.⁶³ Now, we need to answer an important question. In this paper, what is the relationship between the above-mentioned targeted regulations made by the government as special labor legislation (hereinafter referred to as “the above-mentioned targeted regulations”) and the labor standards established by the Labor Standard Law? The author believes that only a small part of the above-mentioned targeted regulations can be classified as labor standards, such as restricting the duration of taking orders to be no more than 11 hours per day and restricting the minimum interval of going online between two days to be no less than eight hours. Most of the other content are not part of the labor standard. The reason is as follows.

 

First of all, if we admit that the “Labor Standard Law refers to the basic law that the government compulsorily stipulates the minimum standards of labor conditions,”⁶⁴there is indeed a legal basis and practical significance to have a certain correlation between the reasonable restrictions on the working hours and labor intensity of practitioners and the labor standard. However, in the history of coordinating labor relations in continental law countries and regions, an institutional system of state coercion, collective autonomy and private autonomy has been formed. Labor conditions such as working hours and labor intensity can be determined by fundamental labor standards, collective contracts and labor contracts.⁶⁵ This paper believes that fundamental labor standards are only a part, not the whole, of the legal system for setting labor conditions. The setting of “decent” labor conditions for practitioners’ working hours and labor intensity can also use other legal tools such as collective negotiation and enterprise self-discipline.

 

Second, the above-mentioned targeted regulations from the first and the second part of this paper have an obvious feature in terms of the wording, that is, they mostly state that the online platform companies and labor-related third parties “should reasonably set rules... Such rules must not violate industry rules” and “… should take effective technical measures to enable…”. This goes for the third part, that is, to encourage the platform companies and labor-related third parties to seek solutions by making use of the cooperation between government authorities and all stakeholders. None of them follow the rigid legislative principle of the Labor Standard Law, which mandates minimum standards of working conditions through legislation, but follows an elastic, flexible legislation principle. This is actually an approach to legislative regulation that boosts multi-party cooperation. In “many regulatory policies, regulatory agencies have promoted and motivated market entities to conduct self-regulation and cooperative regulation, which avoids the problems caused by laissez-faire market-ism or comprehensive government control”⁶⁶. The basic idea of this approach to legislative regulation is that the government only implements necessary and reasonable legislative regulation. In other words, the legislation itself only determines the basic direction of regulation, not the specific rules. Industry organizations establish the specific rules through collective negotiation with companies in accordance with the basic direction of the legislation and industry rules. Some researchers point out: “the concept of social self-regulation is seen as a solution to the long-standing deficiency of government’s command-type regulation of social processes... In China, social self-regulation is often expressed as ‘self-discipline’ or ‘industry self-discipline’...”⁶⁷ The subject of social self-regulation can be companies and industry organizations or other non-governmental organizations. “Their interest lies above all in the system’s efficiency they build. Such efficiency means preventing the government from imposing special obligations that have nothing to do with their interest and separating self-rational behaviors.”⁶⁸

 

There are at least two options: the first one is based on the reliance on traditional paths. It uses the standards of the Labor Law to strictly set the minimum standards for practitioners’ working hours and labor intensity. It mainly uses labor inspection, and the deterrence of administrative penalties, to force the platform companies and labor-related third parties not to violate the Labor Law standards. This constraint can only be achieved by relying on strong external legal coercion, but “it still needs to be remembered that punishment itself is a price, a kind of evil”⁶⁹. The second one is based on recognizing the legislative regulation approach of boosting multi-party cooperation. Instead of the Labor Law being used to strictly set the minimum standards for practitioners’ working hours and labor intensity, it is preferable to introduce specialized labor legislation that sets legal obligations for the platform companies and labor-related third parties, requiring them to set their own rules within a fair and reasonable legal framework and then restrain practitioners in accordance with the rules (which is very important) while consciously restraining themselves. Should the platform companies and labor-related third parties refuse to perform the aforementioned legal obligations, they would be in violation of the law, and would assume legal responsibilities. When they do not fulfill the aforementioned legal obligations to the appropriate extent (for example, they do not do well in setting and implementing the rules), the government and industry organizations can pressure them by providing administrative guidance and industry persuasion and mandatorily disclosing their social responsibility information.⁷⁰ In Japan, administrative guidance means “administrative authorities can achieve the intended administrative purpose satisfactorily and flexibly without ordering or coercive measures, without causing friction or resistance, and at the same time ensure the opportunity for the companies to assert their own opinions.”⁷¹ In Germany, industry persuasion under the premise of an employers’ alliance means “accomplishing a task that is almost impossible in the name of the government in liberal democracies... which means to make the pluralism work as a principle of constitutional order construction.”⁷² The good effect of mandatorily disclosing social responsibility information mainly includes “establishing a good image,” “consolidating brand status,” “attracting investors” and “attracting and retaining employees.” These will bring longterm and indirect benefits to companies.⁷³ This constraint can be achieved by merely relying on weak external legal coercion. As legal entities that should assume corporate social responsibilities,⁷⁴ the platform companies and labor-related third parties should and are able to conduct social self-regulation by reasonably setting and implementing rules, and actively cooperating with the government and industry organizations.

 

(Translated by JIANG Yu)

 

* ZHAO Hongmei ( 赵红梅 ), Professor at the Civil, Commercial and Economic Law School (CCELS) of China University of Political Science and Law (CUPL) and Academic Leader of the social law discipline at CUPL. This paper is the final result of the general topic of the National Rule of Law and Law Science Theoretical Research Project launched by the Ministry of Justice of the PRC, “Challenges Posed by the Sharing Economy to Labor Law and Social Insurance Law and Corresponding Solutions” (19SFB2050), and the funded result of the “CUPL Emerging Discipline Creation and Construction Program”.

 

1. The State Information Center, “China Sharing Economy Development Report (2021)”, The official website of the National Development and Reform Commission (NDRC).

 

2. Ele.me Fengniao Logistics, “Take-out Riders Insight Report 2018”, The Chinese Internet Information Website.

 

3. Meituan Research Institute, “The New Youth in the New Era: Take-out Riders Research Report 2018”, The Chinese Internet Information Website.

 

4. Lai Youxuan, “Take-out Riders Trapped in the System”.

 

5. Golden Lonnie, “A Purpose for Every Time: The Timing and Length of the Work Week and Implications for Worker Well-Being”, Connecticut Law Review 4 (2010): 1187.

 

6. ILO Official Site, “Report of the Director-General: Decent Work”.

ilo.org/public/english/standards/relm/ilc/ilc87/rep-i.htm; ILO Official Site, “Topics: Decent work”.

 

7. Lu Haina, “Protection of the ‘Third Class Workers’ in the Platform Economy from the Perspective of Social Rights”, Human Rights 1 (2020): 106-112.

 

8. United Nations, “International Covenant on Economic, Social and Cultural Rights (ICESCR)”, The National People’s Congress website.

 

9. This is hotly discussed in existing studies in the academic community and there are different understandings. Wang Qian, “Review of the Theoretical Research on the Labor Relation Identification in Sharing Economy Employment”, Journal of China University of Labor Relations 2 (2020).

 

10. Isabelle Douglin et al., Platform Economy and International Trends in Labor Legislation, trans. Tu Wei (Beijing: China Workers Press, 2020), 37.

 

11. Raymond Walterman, German Labor Law, trans. Shen Jianfeng (Beijing: Law Press China, 2014), 340.

 

12. Taiwan Labor Law Society, Interpretation of the Labor Standard Law — Review of the Past Two Decades of Implementation and the Outlook (Beijing: Sharing Publishing Co., Ltd., 2009), 360.

 

13. Wang Tianyu, “The Jurisprudential Restatement and Normative Structuring of Working Hours”, Law Review 6 (2021): 78.

 

14. Gerhard Bosch, “Working Time: Tendencies and Emerging Issues”, International Labour Review 2, vol. 138 (1999): 131.

 

15. Berg Peter et al., “Working-Time Configurations: A Framework for Analyzing Diversity across Countries”, The Journal of Work and Policy 3, vol. 67 (2014): 805.

 

16. Zhao Hongmei, “On the Defects, Value, Function, and Improvement of China’s Working Hour System”, Global Law Review 1 (2020): 41.

 

17. Ban Xiaohui, “Labor Law Regulation on Task-Based Employment in the “Part-time Job Economy”, Law Review 3 (2019): 111. Tian Silu, “Subordinate Labor Theory in the Era of Industry 4.0”, Law Review 1 (2019): 83.

 

18. Wang Qian, “On the Reform of China’s Special Working Hour System: Between Flexibility and Security”, Law Review 6 (2020): 94.

 

19. Yvonne Lott, “Working-time Flexibility and Autonomy: A European Perspective on Time Adequacy”, European Journal of Industrial Relations 3, vol. 21 (2015): 260.

 

20. The concept of crowdwork refers to a platform organizing mode based on I nternet information technology, that is, a large number of scattered work tasks are outsourced by the online platform to a large number of unspecified practitioners and completed through their competition. Jeremias Prassl and Martin Risak, “Uber, Taskrabbit, and Co. Platforms as Employers? Rethinking the Legal Analysis of Crowdwork”, Comparative Labor Law and Policy Journal 8, vol. 37 (2016): 622.

 

21. Wang Tianyu, “Is Online Labor Service a Challenge to Labor Law?” China Law Review 6 (2018): 123-124.

 

22. Huang Chengguan, et al., Sharing’s Six Laws — Labor Law (Beijing: Sharing Publishing Co., Ltd., 2019), A-401.

 

23. The Ministry of Human Resources and Social Security (MOHRSS), “Explanation on the ‘Special Working Hours Management Regulation (Draft for Comment)’”.

 

24. “Didi Launches Fatigue Reminder Function so that Practitioners Are Unable to Take Orders If the Accumulated Travel Time Exceeds the Time Limit”, Sohu.com.

 

25. Fujian Provincial Federation of Trade Unions Labor Law Supervision Committee (FPFTULLSC), “Fujian Labor Union Labor Law Supervision Notice” (No. 5 [2021] document issued by the FPFTULLSC), Fujian Daily, August 26, 2021.

 

26. In terms of the legislative leniency, China’s standard working hour system is opposite to those special working hour systems. The former is too strict and rigid, while the latter is too flexible and loose. Zhao Hongmei, “On the Defects, Value, Function, and Improvement of China’s Working Hour System”, 43.

 

27. Berg Peter et al., “Working-Time Configurations: A Framework for Analyzing Diversity across Countries”, 810.

 

28. Karl Marx, Das Kapital, vol. 1 (Beijing: People’s Publishing House, 2004), 306.

 

29. Ibid., 306-307.

 

30. “Didi Launches Fatigue Reminder Function so that Practitioners Are Unable to Take Orders If the Accumulated Travel Time Exceeds the Time Limit”, Sohu.com.

 

31. Wolfgang Doipler, German Labor Law, trans.Wang Qian (Shanghai: Shanghai People′ s Publishing House, 2016), 190-192.

 

32. Sun Guoping, “Identification of Disputes on Standby Time in Labor Law”, Law Science 5 (2012): 47.

 

33. Wang Tianyu, “The System Structure and Legislative Improvement of Fundamental Working Hour Standard”, Science of Law 1 (2016): 128.

 

34. Wolfgang Doipler, German Labor Law, 190 -193.

 

35. Zhang Chenggang, “The Status Quo of Employment and Labor Relation of Workers on Sharing Economy Platforms — A Survey Based on Multiple Platforms in Beijing”, Journal of China University of Labor Relations 3 (2018): 67

 

36. Sun Ping, “Digital Labor under the Algorithmic Logic: A Study on Food Delivery Workers in the Platform Economy”, THINKING 6 (2019): 5.

 

37. Wang Xiuyun, et al., “The effect of sleep deprivation on the formation of sub-health and related mechanisms”, Tianjin Journal of Traditional Chinese Medicine 2 (2006): 110.

 

38. Liu Haiying, “Neither too long nor too short sleeping time is good for your health”, Science and Technology Daily, May 6, 2010.

 

39. Karl Marx, Das Kapital, 305-306.

 

40. Sun Guoping, “Contemplation on ‘Death by Overwork’ in Comparative Law”, Contemporary Law Review 1 (2010): 24.

 

41. “Didi Launches Fatigue Reminder Function so that Practitioners Are Unable to Take Orders If the Accumulated Travel Time Exceeds the Time Limit”, Sohu.com.

 

42. Karl Marx, Das Kapital, 471-472 and 599.

 

43. For example, Didi regularly launches reward activities such as “Morning Peak Order Reward,” “Noon Peak Order Reward,” and “Evening Order Reward.” The basic rule is that you can get additional income incentives once you complete a certain number of orders within the specified time period and maintain a certain “Dispatch Success Rate.” “Didi’s Order Reward, A Race Against Time”, Chai Hao, Sohu.com.

 

44. Ding Xiaodong, “On the Legal Regulation of Algorithms”, Chinese Social Sciences Today 12 (2020): 158.

 

45. Lai Youxuan, “Take-out Riders Trapped in the System”.

 

46. Wang Ziyang, “Meituan Provides Its Riders around China with Winter Subsidy of RMB 1.6 Billion”, Beijing News.

 

47. Lai Youxuan, “Take-out Riders Trapped in the System”.

 

48. A more professional definition of sudden death from overwork is that the excessive physical and mental load during the labor process and the continuous accumulation of fatigue cause the exacerbation of existing diseases such as hypertension or arteriosclerosis and finally lead to sudden death. Sun Guoping, “Contemplation on ‘Death by Overwork’ in Comparative Law”, 122.

 

49. “Ele.me Provides Nearly A Million Pieces of Cold-proof Equipment for the Riders and Increases Subsidies for Winter Orders”, Sina.com.

 

50. Gao Qinwei, “Social Self-regulation and the Task of Administrative Laws”, China Legal Science 4 (2015): 96.

 

51. Ibid., 84.

 

52. Ou Zhikui, “26,000 Stores Nationwide Quickly Respond to Provide ‘Rider Stations’ for Take-out Riders to Rest”, Southcn.com.

 

53. Zhang Yanli, “The First 100 Rider Stations Debut in Shenzhen Longhua for Take-outRiders and Online Car-hailing Practitioners”, NetEase.

 

54. “Meituan Works with 2,200 Stores Nationwide to Establish Rider Service Stations and Provide Exclusive Discounted Meals for Riders”, IFENG.COM.

 

55. Berg Peter et al., “Working-Time Configurations: A Framework for Analyzing Diversity across Countries”, 808.

 

56. Zhao Hongmei, “On the Defects, Value, Function, and Improvement of China’s Working Hour System”, 56.

 

57. “3.987 Million Riders Earned an Income from Meituan in 2019 — 336,000 New Riders Joined the Company During the COVID-19 Pandemic”, Xinhuanet. 

 

58. Some European researchers believe that practitioners use their usernames and passwords to log in to online car-hailing platforms, but it is difficult to prevent them from allowing third parties to do so. Isabelle Douglin et al., Platform Economy and International Trends in Labor Legislation, 117.

 

59. Zhang Yin, et al., “Current Situation and Outlook of Big Data Application”, Journal of Computer Research and Development 50 (2013) (Supplement): 216-217.

 

60. Sun Qibo, et al., “Internet of Things: A Research Overview of the Concept, the Architecture and Key Technologies”, Journal of Beijing University of Posts and Telecommunications 6 (2010): 3.

 

61. The Standing Committee of the National People’s Congress, “Legislative Planning of the Standing Committee of the 13th National People’s Congress”, The National People’s Congress website.

 

62. Jiang Anjie, “The Seminar on Labor Standard Law Expert Suggestion Draft (Renmin University of China Edition) Is Held”, legaldaily.com.cn.

 

63. Wang Wenzhen and Li Wenjing, “The Impact of Platform Economic Development on Labor Relations in China”, China Labor 1 (2017): 11.

 

64. Lin Fengbao and Liu Bangdong, Labor Standard Law (Taipei: San Min Book co., Ltd, 2015), 9.

 

65. Shen Jianfeng, “Scope, Normative Structure and Private Law Effect of Labor Standard Law”, Chinese Journal of Law 2 (2021): 79.

 

66. Ding Xiaodong, “The Platform Revolution, the Part-time Job Economy and the New Thinking in Labour Law”, Global Law Review 4 (2018): 97. The article differs from this paper in that: The article only advocates that the government should encourage online car-hailing platform companies to independently and effectively protect practitioners. Ibid.,97-98. However, this paper advocates that the government should use legislative regulation to require online car-hailing platform companies and labor related third parties to effectively protect the rights and interests of practitioners’ working hours and labor intensity.

 

67. Gao Qinwei, “Social Self-regulation and the Task of Administrative Laws”, 74.

 

68. Eberhard Schmidt Assmann, “Regulated Self-Regulation — As a Component to Construct Administrative Law System,” in Public Law Study, vol. 20, trans. Jin Jian (Hangzhou: Zhejiang University Press, 2021), 278.

 

69. Jeremy Bentham, Introduction to Morality and Legislative Principles, trans, Shi Yinhon (Beijing: The Commercial Press, 2000), 241.

 

70. Article 58 of the Personal Information Protection Act states: “Personal information processors that provide important Internet platform services, have a large number of users, and have complex business types shall perform the following obligations: ... (4) Periodically publish social responsibility reports on personal information protection and accept social supervision. ”

 

71. MUROI Tsutomu, Modern Japanese Administrative Law, trans. Wu Wei (Beijing: China University of Political Science and Law Press, 1995), 150.

 

72. Raymond Walterman, German Labor Law, 402-403.

 

73. Yang Yi and Shen Hongtao, “Chinese Companies’ Understanding and Practice of Social Responsibility Information Disclosure”, Journal of Audit and Economics 4 (2008): 54.

 

74. Some researchers believe that online car-hailing platforms have the social function of gathering resources and services and belong to the “quasi-public goods”; online car-hailing platform companies have the role of “social persons.” Xiao Hongjun, “Responsible Platform Leadership: Structural Governance of the Co-destruction of Platform Value”, China’s Industrial Economics 7 (2020): 183.