The Case Of False Self-employed

The concept of false self-employed is used to define the self-employed worker who carries out the activities according to one employed, that is, one on the staff. It is a strategy used by some companies that generally has the objective of reducing their costs.

Since the onset of the crisis, the existence of false self-employed has become popular. This figure, as I said before, has been used by companies to reduce the costs of their staff by trying to evade the contributions of their workers.

In reality, having a self-employed person performing the activities of a staff member is a legal fraud with serious consequences for the offending company.

Next, we will study the conditions suffered by false self-employed workers to facilitate their identification and understand the context.

What is a fake freelancer and how to identify it?

To date, there is no legal definition of the concept. The false self-employed are workers registered in the Special Regime for Self-Employed Workers (RETA), but who provide their services to a company as if they were regular workers.

In order to understand the situation in which false self-employed workers work, it is possible to resort to the Workers’ Statute. The following characteristics are developed in it:

• The company determines the salary that the employee receives.
• The employed person abides by the guidelines set by the company. That is, it does not perform its functions autonomously.

• The worker uses the means of production or the business strategies of the company with which he works.

The false self-employed are workers who abide by the guidelines set by the company and who use the company’s means of production. In addition, your salary is relatively fixed. It depends on the person’s working hours, but always within the margins established by the company.

Therefore, although they are considered autonomous, they do not have autonomy in their work. They are people who depend on the guidelines imposed by the company and act as staff employees. It is a contradictory situation that seriously damages the employment situation of those who live it.

Specifically, because employed workers have a series of rights that false self-employed workers do not enjoy. Precisely because they are not considered as employed workers.

What is the legality of the situation?

Legally what matters is not what the documents say. Reference should be made to the typical “contracts are what they are, and not what workers say they are.” At the end of the day, the so-called self-employed person is working under the requirements and conditions of an employed person. Therefore, we are facing a fraud against two public bodies : Treasury and Social Security, since we are taxing differently than we should.

Companies use these false freelancers to avoid assuming the labor costs derived from hiring workers. We are facing a significant legal fraud, companies that use false freelancers can be sanctioned with fines of between 600 and 6000 euros.

What are the real downsides to the fake freelancer?

The false self-employed, being considered self-employed, are not subject to the Workers’ Statute or the working conditions established by the corresponding Collective Bargaining Agreement. Which means that you will not have a minimum wage, or paid vacations, paid leave, time reductions and other benefits regulated by the agreement.

In the same way, every self-employed person has the obligation to register and contribute to the self-employed regime. Also the obligation to submit VAT returns. The false self-employed must meet both conditions.

In addition, if the case arises, the false self-employed person will not be entitled to unemployment benefit. Unless you have contributed on your own account. Finally, in case of ceasing the provision of services, you may not request compensation or notice periods, except prior and express agreement.

This illegal situation is easily demonstrable. Thus, the worker seen in it can easily claim. The company will be sanctioned for not having registered the worker and the worker will be able to claim the contributions of the last four years.

In the event that the false self-employed person decides to end this situation, they can file a complaint with the Social Courts or with the Labor Inspectorate.

Economically dependent self-employed workers

To solve this problem, the contract for economically dependent self-employed workers (TAED) was created. This is a contract to which freelancers who generate 75% or more of their income through a single client can adhere.

Although at first glance it may seem like a legalization of the figure of the false self-employed, it does give some benefits to these workers :

• Right to collect unemployment benefits.
• Maternity leave.
• Right to 18 days of unpaid vacation.

Here we ask ourselves: is this the right solution for the problem we are facing? The TAED does not offer many benefits either, it prevents you from subcontracting to another worker and you continue to pay the self-employment and Social Security fees.

We see in this way that both the figure of the economically dependent self-employed worker and that of the false self-employed person are figures that must be taken into account when signing a contract with a company. We are talking about figures from which many companies, such as Glovo or Deliveroo, (with open cases with the law for this reason), benefit at the expense of the rights of their employees.