O elemento fático-jurídico da subordinação frente ao avanço da tecnologia: o surgimento da subordinação algorítmica

Abstract

The purpose of this work is to present the reader with an analysis about the characterization of the employment relationship between app drivers and their respective applications, analyzing the Uber application and the aspect of subordination more carefully. Sees as problematic the unobserved existence of the employment relationship between the application and the driver, which gives the company exacerbated freedom and leaves the worker excessively unprotected. It analyzes only the legal issues of focus, ignoring political and sociological issues and investigating purely the facts regarding the law in the case. In this way, it investigates the presence of the subordination relationship from a doctrinal analysis about the classic concepts of subordination in Labor Law and a factual and jurisprudential analysis of the nascent concept of “Algorithmic Subordination”, bringing main aspects that can place Uber and similar as Employers or, as they are currently defined, as service providers responsible for connecting the driver to the customers. The research defined in the delimitation exposed above will therefore be compared with the observation of reality from the framework of the main characteristics of the activity carried out by drivers linked to the applications, with a focus on the Uber application. The devices made available by the company itself were also observed to verify the existence or non-existence of the factual-legal element of subordination, analyzing the Community Code and the Terms of Use of the application under a labor and analyst bias. It also uses as a methodology the analysis of news about the protection of this group in other states and Judgments issued by the Regional Labor Courts of Minas Gerais and Rio de Janeiro, in addition to Judgments pronounced by the Superior Labor Court itself. Aiming to bring a more complete analysis of the phenomenon of “work uberization”, it brings a historical-cultural context and describes the environment in which these applications were born, as well as the conditions with which they most benefit, in terms of unemployment and country's economic instability. Therefore, it concludes that there is an employment relationship between the Uber application and its drivers. It is seen that the advancement of technology brings numerous advantages in terms of reducing the operating cost of companies and an ease never seen before to control the journey of its employees, but without the legislation to contain it, it perceives its advances at the expense of the unprotected workers. So, it is perceived that they do not fit into any common employment relationship, having their peculiarities in the otherness and in the eventuality, which must be respected through the creation of a law thought out and adequate for the specific situation. The created law needs to be careful not to slow down technological development in the country and not to excessively burden the subject companies, so that it is beneficial for the worker without negatively influencing the social body as a whole.