The Union of Professionals and Self-Employed Workers (UPTA) estimates that there are currently around 230,000 people working in
a false self-employed
situation. This figure represents 96% of economically dependent self-employed workers (TRADE).
After this figure there are doubts that in this post we will solve, in addition to clarifying the sanctions to which a company is exposed when hiring its workers as false self-employed.
What is a fake freelancer?
A false self-employed person is the worker whose subsistence depends on a single payer, which factually makes them employees of the same.
However, through this figure, the company tries to save itself by registering its employees in the Social Security.
By not registering them, the company avoids paying the contributions,which are one of the most voluminous items in the accounting of any company. Thus, it is the worker himself who must enter them, as well as VAT and Personal Income Tax.
To make matters worse, by not being registered as an employee, the worker loses other rights, such as paid holidays and breaks or leave. In addition, other rights are affected, such as the reservation of a job in certain circumstances or the definition of the work accident, more restrictive in the case of the self-employed.
It should be noted that a false self-employed person is not the same as an economically dependent self-employed (TRADE).
The TRADE is a freelancer who collects 75% or more of his income from the same client. Therefore, the legislation offers greater protection than that corresponding to an ordinary self-employed.
This protection includes some elements such as rest days, holidays and holidays (although they are not paid) or a concept of occupational accident very similar to that applied to the employed worker. They are also protected against the cessation of activity
attributable to the client.
In short, the false self-employed is an employee who works in fraud of law.
In this sense, it is considered that it is the company that is breaking the law, by avoiding hiring a labor employee as appropriate.
Main consequences of hiring as a false self-employed
Social Security contributions represent around 30% of what a worker receives. That is, when a company pays 1500 euros of salary to a worker, approximately 500 euros are invested in contributions, while the worker receives about 1000 euros.
Obviously, preventing the entry of these sums into the public coffers has only one name: fraud. Companies that choose to hire false freelancers incur social infractions.
This has procedural relevance,since the contract that binds a self-employed worker (RETA) or TRADE with the company or professional to whom it provides services is of a commercial nature. Therefore, disputes are settled in civil seats, where the autonomy of the will prevails.
However, at the moment when it is determined that the company has committed a social infraction, it will be resolved at the registered office. And in this order, guarantee principles such as in dubio pro operarioprevail, which will facilitate the victory of the worker, as a weak part of the relationship.
After all, in order for the relationship to be excluded from the social order, the ’employment notes’ cannot be present:
In this case, each of the work notes concurs, so the false self-employed person is legally considered an employee.
Consequently, the company that proceeded to hire him in this way acts in fraud of law, which may lead to sanctions.
Penalty for false self-employed
The infraction for hiring a false self-employed person can be sanctioned with fines of between 3126 and 10 000 euros. This sanction is applied for each worker who is in an irregular situation.
In addition, contributions are intended for the payment of Social Security benefits. Which means that it will claim its income, so the company will have to pay all the fees paid and not prescribed plus the corresponding surcharges.
Social Security contributions expire in four years, and surcharges range from 10 to 35%. However, in these cases the circumstances usually concur so that the surcharge to be applied is 35%.
In addition, the worker could demand:
- That he be recognized as a permanent employee in the company.
- That the difference between what was charged and what is established in the agreement be paid, when this is greater.
- That the corresponding severance payis paid, if any.
How to avoid penalties for false self-employed
Obviously, the best way to avoid a penalty for false self-employment is not to hire any worker in these circumstances.
The RETA or TRADE must use its own means and tools, so it is advisable to avoid any appearance of dependence.
This includes granting discretionary access at the company’s premises, granting you credentials, business cards, uniforms or corporate email addresses, and setting you hours or presence in the office.
Companies must be very careful when carrying out this type of practice. The consequences for hiring as a false self-employed person are serious, since the law tries to protect workers deprived of their rights.