Freelancer

from Wikipedia, the free encyclopedia

Freelancers ( english freelancer ) are in labor independent workers , by virtue of a free service or work contract orders run personally own and usually without employees of the client to be.

Germany

The terms entrepreneur / employer / employee / self-employed / freelancer are not always easy to distinguish from one another. The legal status of freelancers depends largely on their actual employment . Decisive for their differentiation are the degree of personal ( the employer's right of direction ) or economic dependency ( wages ), the involvement in an external work organization , the choice of working hours or place of work and the commitment to external instructions .

Especially in the professional groups of gastronomy , the transport industry , advertising and media in the broadest sense, especially in the artistic and cultural field, in journalism or information technology , but increasingly also in technical professions, there are often freelancers. Freelancers who work in virtual teams, also called e-Lancer (of English electronic ). Here the entrepreneur can reduce his entrepreneurial risk by employing freelancers through lower personnel costs , no social contributions and a lack of protection against dismissal . The creation of the freelancer is therefore primarily for business reasons. The responsible media managers in companies see free journalism as an indispensable regulator in their cost management .

Synonymous with the free or freelance employees , the terms are freelancers or fees force used in English, the term is contractor usual. The English term freelancer was coined by Sir Walter Scott (1771-1832), who used it in his novel Ivanhoe as a term for medieval mercenaries (English lance; in German ' lance ').

Legal issues

The legal question about the status of freelance workers first gained importance in January 1982, when the Federal Constitutional Court (BVerfG) had to rule on previous judgments of the Federal Labor Court (BAG) on freelance workers of the WDR . In addition to permanent employees, the broadcasting corporations employ numerous “freelancers” who do not have employee status and accordingly do not enjoy protection against dismissal under labor law. The group of people managed as freelancers is very diverse. It ranges from the authors and composers who are not or hardly integrated into the operational production processes, to the journalistic-editorial team, who often work in teams with other reporters and realisers, producers of documentaries, features and other program contributions, directors , actors , speakers , presenters, From the cameramen and image directors assigned to the production area to the make- up artists , costume designers and film editors , as well as the more commercial and organizational production managers, production managers and props managers . The activities of freelance workers largely overlap with those that are carried out in this way or similarly by permanent employees.

They are self-employed persons with a service contract within the meaning of § 611 BGB . The rules of labor law do not apply to them. However, they can be “ persons similar to employees ” so that in some cases labor law provisions apply ( Section 12a TVG ). An employee-like person falls e.g. B. according to § 2 BUrlG under the Federal Holiday Act with the result that she has a right to paid leave from the sole client according to § 1 BUrlG. In terms of labor courts they are considered employees ( Section 5 (1) ArbGG ). A lecturer who is allowed to determine both his working hours and his place of work is a freelancer. Fee-based teachers are freelance workers if the work content and working hours have been regulated in an individual contract and thus withdrawn from the employer's right to issue instructions.

Sales tax treatment

For sales tax, the decisive factor is whether the freelancer is an employee or an entrepreneur. This also applies to wage tax (employees) and income tax through Section 18 EStG and Section 15 EStG. An employee is someone who is subject to instructions and who has to work according to external guidelines. This usually corresponds to the fixed payment by hours etc. The employer cannot deduct any input tax from the employee's invoices, but the employee owes the sales tax shown in an invoice. The employer is also not in good faith, as he knows the employment conditions on site and the employee's submission to instructions.

Social security problems

The classification in social security law can differ from the tax classification. In the case of employees, the employer may have to pay the social security contributions retrospectively. It is therefore worthwhile to provide evidence and, if necessary, a so-called status determination as to whether there is an employment relationship bound by instructions or a self-employed activity without integration in the foreign company.

Contractual relationship and payment

The amount of the remuneration in connection with the origin of the remuneration plays a decisive role in the economic dependence of freelance workers. An indication of freelance workers is, among other things, that they are paid less than half of the salary by one person on average in accordance with Section 12a (1) No. 1b TVG , or that they work for more than one client . If they receive more than half, they have the legal status of employee-like persons.

Unlike workers where the employer in addition to the salary nor the wage costs contributes, the consultant will receive in Germany only a contractually agreed fee (depending on the area of work and remuneration or Gage called). From this remuneration, he has to bear all costs related to his professional activity ( operating expenses and taxes ) himself; there are no employer contributions .

Freelance workers can be paid by the hour or at a flat rate to complete an order. The former is usually regulated by a fee or service contract, the latter by a work contract . In its theoretical form, a service contract does not contain any specific proof of success, but in particular no obligation to rework. This is only implemented in the case of special forms of service contract, such as employment contracts or service contracts with managing directors. In the case of contracts with independent service providers, payments are generally only made when certain interim targets or acceptance tests have been reached, or the billable expense is signed in advance, similar to what is usually the case with craftsmen. This, often unconscious, mixture of service and work contracts is one of the most common forms of accounting.

Delimitations

Self-employment presupposes that it is neither a matter of “employee-like persons” ( e.g. § 92a HGB ; single-company commercial agent ) or § 12a TVG (freelancers for radio and television companies who are economically dependent and comparable to an employee in need of social protection), or home workers or house traders ( § 2 HAG ). An employee is someone who, based on a private employment contract in the service of another, is obliged to perform instructions-bound, externally determined work in personal dependency (right of direction) and is integrated into an external work organization. Bogus self-employment exists, for example, when a freelance employee performs the same tasks as an employee and receives direct instructions from a manager . Other indications of bogus self-employment include a permanent job in the office, your own telephone number and / or company email address or regular bills of the same amount.

Freelancers must not be confused with freelancers who include the independent scientific , artistic , literary , teaching or educational activity, the independent professional activity of doctors, dentists, veterinarians, lawyers, notaries, patent attorneys, surveyors, engineers, architects, commercial chemists, auditors , Tax consultants, advisory economists and business economists, sworn accountants, tax agents, non-medical practitioners, dentists, physiotherapists, journalists, photo reporters, interpreters, translators, pilots and similar professions ( Section 18 (1) No. 1 EStG ).

function

Freelance workers are often highly qualified and specialized in certain tasks (e.g. as programmers , journalists , lecturers , museum curators , musicians , lecturers , interpreters and translators ). Personal independence is characteristic of a freelance worker. The freelancer is relatively free in the structuring of his working conditions and formally not directly subject to the instructions of the client in terms of time, location or technical aspects. It is usually not integrated into the client's organizational structure.

“Fixed free”, “generalists” and self-employed similar to employees

Freelancers who continuously receive jobs are often referred to as “permanent freelancers”. For example in media professions, e.g. For example, with publishers, there is still another subtype, namely the “blanket lists”, who make contributions on certain topics for a lump-sum monthly fee. The suspicion of bogus self-employment is obvious in such constellations. In mid-2015, German customs investigated M. DuMont Schauberg . The Axel Springer Verlag has made a voluntary disclosure in February, 2015. In 2014, Spiegel Online dismissed all freelancers who had worked for the medium for at least two years, and has since limited corresponding activities to this duration.

On the other hand, some media have systematically converted their “permanent freelancers” into permanent employees since 2014 and thus resolved the conflict in favor of the employees. The Süddeutsche Zeitung announced in December 2015 that it was permanently discontinuing the blanket lists included in the editorial work in the online and print editors. In contrast, the Berliner Tagesspiegel canceled the jobs of all freelancers in November 2015, and jobs already written remained unpaid. This demonstrates the increased professional risk of freelance workers if they are self-employed with a high level of dependency on one or a few clients.

The legislature has defined the self-employed , similar to an employee , who is subject to increased dependency and essentially has only one client. Self-employed persons similar to employees are subject to mandatory pension insurance.

Advantages and disadvantages

For freelancers

Working as a freelancer has the advantage of not being bound by instructions like an employee. So the working hours can be divided freely. Depending on the technical possibilities, work can partly be carried out from your own home or at any location.

An essential characteristic of freelance work is the opportunity to work for several clients. Whether this is used, in particular, whether at the same time or one after the other, is independent of this, and the freelancer can freely decide according to market opportunities and time. This is in contrast to the employee's duty of loyalty, who as a rule has to make his work available without restriction to an employer, at least subject to his consent.

Just as the employee is dependent on his employer, the freelancer submits to market developments and customer wishes, but the working and meeting relationship is different. In terms of creditworthiness , it can mean a restriction because often no steady income can be proven. The freelancer bears the full cost of his office and business equipment as well as insurance for professional liability , illness and retirement benefits himself.

Since freelancers are not employees, they also do not have the rights of an employee, in particular they are not entitled to paid vacation (except for those who are similar to employees ) and to continued payment in the event of illness .

The time management plays a major role. The spectrum ranges from freelancers, who can work much shorter hours than the average worker and have a lot of free time, to those who offer their work around the clock, depending on their personality and market situation.

There is no protection against dismissal as there is for employees. On the other hand, a freelancer is bound to the respective contract and obliged to fulfill it, in extreme cases also to compensation for non-fulfillment .

For the client

Freelance workers are often deployed when there are staff shortages , but permanent employees would not be profitable in the long term due to the high fixed costs . Freelance workers are much more flexible. There is no protection against dismissal, as they are usually only contractually bound for a specific order or project. In contrast to the statutory or collectively regulated contracts with an employee, the employer or client can freely design the conditions in individual cases.

By using freelancers, the knowledge of the permanent employees can be brought up to date. Companies can benefit from the experience that freelancers have gained in other companies.

The disadvantage is that freelancers are only permanently available for long-term contracts. Many smaller tasks in day-to-day operations that would otherwise be entrusted to an employee can hardly be done by freelancers because it would be too tedious and expensive to hire someone specifically for them.

Another disadvantage is the sometimes lack of familiarity with the company. For example, some freelancers first have to familiarize themselves with the company or a specific project before they can achieve their full potential in the area.

Austria

In Austria there are several possible types of employment for freelancers:

In addition to the classic commercial companies, typically self-employed without their own employees, three other forms have been created in recent years to prevent bogus self-employment , i.e. the shifting of social burdens onto the working people through special contractual structures (circumvention agreements). All these forms are now compulsorily insured, but the social benefits are not as extensive as for employees (but can be supplemented by additional offers). In addition, both the social insurances and the chambers, but also the tax office, are increasingly scrutinizing whether there is a real employee relationship. In particular, the free service contracts (around 50,000) have been decreasing since then, but the work contracts are increasing.

According to a member survey by the private  employees' union (GPA-DJP), only 55 percent assess their employment contract as correct, over 16 percent suspect legal inconsistencies (the rest do not know). According to this, only 29 percent of men and 14 percent of women can negotiate the fee themselves. Now that the problem of social benefits has been largely brought under control, earnings themselves are currently likely to be the problem, as there is no equivalent to the minimum wage or collective agreement for work and service contracts .

Switzerland

In Switzerland , a freelancer is a person who carries out assignments for a company without being integrated into the company like an employee. The working model of freelance work is chosen from the employee's point of view as a flexible form of work and by the company because of fluctuations in demand and for the purpose of reducing costs . Often it remains unclear whether labor or contract law is applicable. In terms of social security law, freelancers are often qualified as employees, which occasionally leads to disputes between the client and freelance employee with regard to the premium payable (conflict between contract law and social security law).

See also

literature

  • Horst Henrici: The legal protection for bogus self-employed . Dissertation, Bremen 2001. Driesen, Taunusstein 2002. ISBN 3-936328-02-1 .
  • Thomas Matzner, Ruth Stubenvoll: IT freelancer . dpunkt.verlag, Heidelberg 2013. ISBN 978-3-89864-813-4 .

Web links

Individual evidence

  1. ^ Siegfried Weischenberg / Hans J. Kleinsteuber / Bernhard Pörksen, Handbuch Journalismus und Medien , 2005, p. 73
  2. ^ Chambers Harrap dictionary. December 2010, accessed July 23, 2011 .
  3. ↑ BVerfG, decision of January 13, 1982, Az .: 1 BvR 848 et al = BVerfGE 59, 231
  4. ↑ BAG, judgment of August 11, 2015, Az .: 9 AZR 98/14
  5. ↑ Harald Schliemann (Ed.), Labor Law in the BGB: Commentary , 2002, § 611 Rn. 265
  6. ↑ BAG, judgment of March 27, 1991, Az .: 5 AZR 134/90
  7. ^ BAG, judgment of October 30, 1991, Az .: 7 ABR 19/91
  8. ^ The temporary workers of journalism. In: taz , July 6, 2015.
  9. ^ Bogus self-employment in journalism. Suddenly hired. In: Daily newspaper , January 21, 2016.
  10. ↑ NDR: Tagesspiegel releases free people
  11. ↑ Self-employed, bogus self-employed, self-employed similar to employees . General legal questions - R25. IHK Saarland, October 2015 ( ihk.de [accessed November 8, 2018] leaflet).
  12. ↑ Independent service contract (under labor law). Concept - delimitations - claims under labor law. ( Memento from February 21, 2015 in the Internet Archive ) Austrian Chamber of Commerce, wko.at / labor law and social law / labor law / forms of employment.
  13. ↑ Service contract - free service contract - work contract. Federal Ministry of Finance → For employees and pensioners .
  14. ↑ a b Number of freelance workers continued to fall. and union: fewer, but still too many freelance workers. In: Der Standard , July 30, 2013.