Employee-like person
An employee-like person is primarily a worker who is an independent entrepreneur , but is economically dependent on a client , even if he is not personally dependent due to a lack of integration into a company organization (unlike an employee ). The classification has consequences in terms of labor and social law . Employee-like persons within the meaning of this definition (e.g. freelance journalists who work for a specific editorial team) are not bogus self-employed .
The "employee-like person" is a term of labor law, while the "employee-like self-employed person" is a term of pension insurance law.
Differentiation from employees
The main type of employee-like person is differentiated from those officially considered “employees” by the degree of personal dependency. Employee-like persons are not personally dependent to the same extent as employees due to their lack of integration into a company organization and essentially free time determination. In place of personal dependency and being bound by instructions , there is the characteristic of economic dependence . In addition, the economically dependent must also be in need of social protection in a comparable manner to an employee in terms of his overall social position.
According to Section 2 No. 1 to 8, the aforementioned features apply to home workers and commercial agents who, due to contractual agreements or due to the scope of their activity, can only work for one entrepreneur. This also applies to teachers and lecturers such as fitness trainers, aerobics trainers, golf instructors, tennis instructors and driving instructors, as well as nurses, midwives and "artists" within the meaning of the Artists' Social Insurance Act (KSVG). Anyone who is economically dependent on a service or work contract or a similar legal relationship and performs their services or work personally and essentially without the cooperation of employees is therefore - like an employee - in need of social protection.
Occupations such as artists, writers, employees of sound and television broadcasting can also be included, especially single-company representatives with low incomes.
Compulsory pension insurance
According to Section 2 Clause 1 No. 9 SGB VI, self-employed persons in various professions, for example
- do not employ an employee subject to compulsory insurance and
- work permanently and essentially only for one client.
Anyone who does not employ an employee who is subject to social security contributions must ensure that he makes more than 1/6 of the turnover with a second client in the calendar year in the same field of activity. This does not apply to self-employed people who carry out two different independent activities (for example as a musician and personal trainer).
Exemption from compulsory pension insurance
An exemption from compulsory pension insurance is possible upon application. On the one hand, you can apply for exemption from compulsory pension insurance for the first three years as a start-up. On the other hand, according to Section 6, Paragraph 1a, Clause 1, No. 2 SGB VI, there is an unlimited possibility of exemption after reaching the age of 58 if, after previously exercising self-employment, insurance is required for the first time in accordance with Section 2, Clause 1 No. 9 SGB VI. There is no statutory compulsory insurance if the self-employed person has exceeded the mandatory limits and the age limit and was previously privately insured. The statutory social security would no longer accept the person as a member.
National
Germany
Various legal regulations extend the applicability of protective provisions of labor law to employee-like persons of the first type.
- According to § 5 Abs. 1 ArbGG (Labor Court Act) the way to labor jurisdiction is opened for employee-like persons.
- They are also entitled to the statutory (paid) minimum vacation according to § 2 BUrlG (Federal Vacation Act) of 24 working days (based on the six-day week).
- According to various state law provisions, employee-like persons are also entitled to educational leave.
- According to § 12a TVG (collective bargaining agreement law), the terms of employment of employee-like persons can be regulated by collective agreements. Such collective agreements exist mainly for freelance journalists at broadcasting companies.
The Dismissal Protection Act and the special termination provisions of Section 17 of the Maternity Protection Act and the Ninth Book of the Social Security Code (SGB IX) do not apply .
For the contractual relationship of a commercial agent who only works for an entrepreneur, minimum working conditions can also apply according to § 92a (Commercial Code).
Workers in a workshop for disabled people
Employees in the work area of a workshop for disabled people generally have a legal relationship with the workshops similar to that of an employee ( Section 221 (1) SGB IX ). This applies to disabled people who, due to the type or severity of the disability, cannot, cannot yet or cannot yet be employed again on the general labor market ( Section 219 (1) SGB IX ). You only need to provide a minimum amount of economically usable work ( Section 219 (2), Section 220 of Book IX of the Social Code).
see also: Workshop for disabled people # Legal status of workshop employees and its consequences
Austria
In Austria, the term is regulated in Section 51 (3) of the Labor and Social Court Act (ASGG). Despite the formal independence, the Employee Liability Act (DNHG), the Bail Protection Act (KautSchG) and other labor law standards, such as the ASGG, apply here.
literature
Germany:
- Nicole Neuvians: The employee-like person. Writings on social and labor law , vol. 205, Berlin 2002
Individual evidence
- ↑ Felser.de Rechtsanwälte und Fachanwälte accessed June 19, 2017
- ↑ Sabine Wendt: Unsecured employment relationships as a result of the expansion of employee-like employment of disabled people beyond the area of recognized WfbM . Discussion forum on rehabilitation and participation law . April 30, 2013
- ↑ Federal Association of Workshops for Disabled People (BAGWfbM): Develop an understanding of remuneration: BAG WfbM in exchange with the Federal Association of Self-Help for the Disabled. V. . 5th June 2014
- ^ Chamber of workers and employees Styria: Employment contract law. AK Infoservice, edition 2013 (undated), chapter Employee-like persons (§ 51 Abs. 3 ASGG) , p. 30 ( pdf ( memento of the original from February 23, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this note. , beruferkammer.at).
- ↑ Employee-like self-employment. Austrian Chamber of Commerce, wko.at (especially on the problem of commercial agents)
