The recent ruling by the Employment and Labour Relations Court regarding the employment status of content moderators has ignited significant debate and scrutiny. While the ruling determined that Meta (formerly named Facebook) should be classified as the employer of these moderators, it is crucial to explore the alternative view that supports Meta’s position. By delving into the arguments put forth by Meta and considering certain factors overlooked in the court ruling, a more comprehensive understanding of this complex issue emerges.

Meta’s assertion that the content moderators had entered into contracts with Sama, a third-party firm, should not be hastily dismissed as an attempt to evade labour law obligations. Outsourcing certain operations to local firms is a common practice among global corporations, enabling them to streamline processes and tap into local expertise. By engaging Sama as a separate entity responsible for recruitment, training, and human resources management, Meta can focus on its core business of providing a platform and establishing content moderation standards. This division of labour does not automatically make Meta the employer of the content moderators.

The court ruling placed significant emphasis on Meta’s ownership of the digital workspace and its provision of tools and resources to content moderators. However, it is important to recognise that these aspects can be seen as part of the contractual arrangement between Meta and Sama, rather than as indicators of a direct employment relationship. These elements do not inherently imply control over the working conditions or employment status of the content moderators.

To comprehend the dynamics at play, it is essential to consider the nature of the work performed by content moderators. They are responsible for reviewing and moderating user-generated content according to Facebook’s community guidelines. While Meta establishes the standards and provides performance metrics, the actual moderation work is carried out by the content moderators themselves. They exercise independent judgment and make decisions based on the guidelines provided. This level of autonomy and discretion suggests a relationship of service provision rather than direct employment.

Addressing mental health hazards associated with content moderation is crucial, but it should not automatically lead to the conclusion that Meta is the employer of the moderators. Appropriate regulations and guidelines can be implemented to safeguard the well-being of content moderators within the outsourcing arrangement. Protecting their mental health does not necessarily imply that Meta assumes the role of an employer.

The classification of Meta as the employer of content moderators carries weighty implications, both legally and economically. This determination has the potential to create a ripple effect throughout the digital economy and hinder companies’ ability to engage in global outsourcing practices. Imposing direct employment obligations and the associated legal complexities could discourage foreign investments and impede the growth of the digital economy.

While the court ruling considered factors that may support the employer-employee relationship between Meta and the content moderators, it is crucial to recognise the contractual arrangements and division of labour between Meta and Sama. These elements form the foundation of Meta’s position, asserting that they are not the direct employer of the content moderators. It is vital to avoid unintended consequences that could adversely affect the digital economy and global outsourcing practices.

The ruling has injected significant uncertainty and cost implications into the realm of Business Process Outsourcing (BPO) companies and their clients. By granting judges the power to unilaterally modify contracts, the ruling undermines the reliance on established labour laws. This decision not only impacts Meta but also reverberates across all foreign and local companies that have outsourced their services to BPOs.

The ruling effectively imposes employment obligations on these companies, exposing them to the risk of facing mass lawsuits. Consequently, foreign companies may opt to invest in jurisdictions with more favourable legal conditions, resulting in a significant loss of job creation within the ICT sector.

Recognising the significance of the BPO sector, the Kenya National Bureau of Statistics highlights its crucial role within the broader ICT industry. This sector not only offers abundant employment opportunities but also plays a pivotal role in youth job creation. Projections indicate that the BPO sector has the potential to generate over 250,000 jobs, contributing more than 10% to the country’s GDP.

In light of these implications, it is essential to carefully consider the long-term consequences of categorising Meta as the employer of content moderators. Balancing the protection of workers’ rights with the promotion of a conducive business environment is vital as we navigate the evolving landscape of the digital era.