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You have read in the press that more and more employees are becoming self-employed. In fact, your company is considering hiring a freelancer to save on contribution costs?
Savings. Your company needs to hire a worker. And to save on social security costs, you have thought of hiring a self-employed person to take on the cost of your contributions. Warning: Are you aware that this may be illegal? What you need to know?
Fraud by law
The signs. If your company uses a self-employed person and the relationship between the two parties has the characteristics of an employment relationship, your employee is a "bogus self-employed person". Note. The following are the signs that determine the existence of an employment relationship between the two parties (even if they have signed a commercial contract):

  • Dependency. You control the freelancer's tasks, give him orders and set his timetable. Well, this shows that the freelancer is just another subordinate. Attention! If on top of that you pay him a more or less fixed salary and give him the same holidays as the rest of the staff, the dependency becomes even clearer.
  • Secondment. Another note that proves the existence of an employment relationship is that you assume the benefits and risks derived from the self-employed person's work. Note. This is the case, for example, if you hire a salesperson who uses your company's infrastructure and tools (such as a mobile phone and a vehicle).

Consequences. If these conditions are met, the commercial contract will be fraudulent and the self-employed person will be considered as another permanent employee of the company. If he/she is in this situation, the "false self-employed" will be able to claim:

  • Social security contributions for the previous four years. Attention! You must pay both the employer's contribution and the employee's contribution. This is subject to a surcharge of 20%.
  • The uncollected differences in salary compared to the salaries set by the collective agreement for your professional group.
  • You will receive compensation for unfair dismissal if you decide to terminate the employment relationship. Attention! In addition, you will have to count seniority from your first day in the company.

It is a TRADE
Precautions. If your company has a self-employed worker who is economically dependent (the TRADE, which are those self-employed workers whose income comes from a single payer for more than 75%), could also incur these liabilities Attention! Nor think that the fact of having signed a TRADE contract avoids the figure of "false self-employed". Therefore:

  • Make sure that the self-employed provide their services with their own resources, and separately from their employees. Make a note. Do this, for example, if you work on your own premises with your own equipment.
  • Let them organise their own timetable and their own way of working (without prejudice to the fact that they will set a timetable for the delivery of orders). Attention! In this regard, you should know that the TRADE is entitled to 18 days' holiday (at your expense, of course).
  • Although your company pays you at least 75% of your income, your income will depend on the result of your work (such as sales made or units produced). He therefore bears the risk, and the payment is likely to vary from month to month.

If you are contracting out tasks to a freelancer, let the freelancer organise his or her own schedule. Also, make sure that the freelancer uses his own infrastructure and equipment.
(Via DNA. Francis Lefebvre-El Derecho)