Are you a “falso autónomo” (“false” self-employed)?
Although the persecution of false freelancers, by the Labor Inspectorate, has intensified in recent times, there are still many entrepreneurs who encourage covering up an employment relationship with a false business relationship. The main reasons why entrepreneurs promote this type of fraudulent relationships are the following:
1. First, the Social Security costs of an employee with a salary of € 1,500 can be around € 500-600, while if the same job is done by the same person, but registered in RETA self-employed, the minimum fee amounts to € 283, with which the economic benefit is almost 50% (usually the employer offers to defray the cost of the self-employed payments, although it does not apply).
2. The holidays. The wage-earner is entitled to paid vacations, the “false self-employed” not. If he works charges and if he does not work does not charge, so that the employer also achieves considerable cost savings.
3. The dismissal. The dismissals are always complicated and expensive, inconveniences that with a “false” self-employed person the employer saves, because at the moment that he wants to do without his services he simply has to terminate the service provision contract.
The objective of this post is to differentiate an employment relationship (employer-employee) from a business relationship (entrepreneur-self-employed) and for this, we are based on the legal definition of employed worker found in art. 1.1 of the Workers’ Statute and which mentions the four defining notes:
– DEPENDENCE (or subordination)
The major interpretative difficulties lie in the notes of alienation and dependence, and in the analysis of both aspects of the employment relationship, the Supreme Court Judgment of November 26, 2012, focuses on establishing the following criteria to differentiate an employment relationship from a commercial relationship.
1. Two written contracts with the same content can cover up an employment relationship or a service lease contract of art. 1544 of the Civil Code. The name given to the contract by the parties (that the signed contract is called “work contract” or “service lease”) is not decisive.
2. Dependence is the situation of the worker subject, even in a flexible and non-rigid or intense way, to the organizational and governing sphere of the company. It is the integration in the governing and disciplinary circle of the entrepreneur, that is, the provision of services within the scope of organization and direction of another person, physical or legal. The Supreme Court explains that the most common signs of dependence are:
a) Assistance to the employer’s workplace or to the workplace designated by him.
b) Submission to schedule.
c) Personal work performance, compatible in certain services with an exceptional regime of substitutions.
d) The insertion of the worker in the work organization of the employer, who is responsible for scheduling his activity.
e) As a reverse of the previous one, the absence of the worker’s own business organization.
3. The alienation consists of the anticipated transfer of the fruits or of the patrimonial utility of the work of the worker to the employer, which in turn assumes the obligation to pay the salary independently of the obtaining of benefits. The signs of alienation are:
a) The delivery to the employer by the worker of the products made or the services performed.
b) The adoption by the employer and not the worker of decisions concerning market relations or relations with the public, such as pricing or rates, selection of clients, an indication of people to attend.
c) The fixed or periodic nature of work remuneration.
d) The calculation of the remuneration or the main concepts of the same according to a criterion that keeps a certain proportion with the borrowed activity, without the risk and without the special profit that characterize the activity of the entrepreneur or the free exercise of the professions.
In summary, if you are a freelancer and you have signed a commercial or service lease agreement with an employer and in the relationship you have with him there is one or more of these indications that we have just related, you could be a “false self-employed”, that is to say, the relationship with the employer should be of employment and not commercial.