Bogus self-employment

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The bogus self- awakened on the labor market to warrant the self when in fact an employment relationship exists.

General

Whether someone is an employee , employee-like person , freelancer , freelancer , self-employed , bogus self-employed or entrepreneur has significant legal consequences for him and his client / employer . These relate to the labor law , social law , social security law and tax law .

New forms of work enable the use of legal structuring options such as the development of platform-based work, for example in the gig economy , in which small orders are awarded to freelancers at short notice , for example with the delivery service ( Takeaway.com and its subsidiary Lieferando in Germany) or with driving services such as Uber and MyTaxi . You can also contribute to bogus self-employment.

Since the determination of dependent employment, among other things, results in additional taxes, in particular the employer contributions, the German legislature today regards bogus self-employment as a form of undeclared work . Since the underlying legal terms are very vague and are interpreted differently by the social security agencies and courts, a reliable distinction between permissible self-employment and employment subject to social insurance is not possible at the start of the contract, except in the case of gross abuse.

While the concept of bogus self-employment is increasingly disappearing from the political debate (apart from those affected), it has been replaced by another term. Since around 2012, the term contract for work and services or “abuse of contracts for work and services” has been increasingly used in the political debate in Germany and was also part of the 2013 coalition agreement between the CDU / CSU and the SPD. The focus is primarily on the relocation of the former core activities of a company to other companies, often with the accompanying massive relocation of former employees to these service contract companies .

Public opinion

The public perception of bogus self-employment, also in politics, differs significantly from the legal situation. In the public perception, there are mainly the following criteria that are mentioned for bogus self-employment:

  • only one client over a longer period of time,
  • no employee (solo self-employed or solo entrepreneur),
  • works primarily on the premises of the client and
  • pays no statutory social contributions, but into private security systems.

The fact that people with the qualifications of judges can be subject to the same misjudgments as laypeople shows the uncertainty particularly clearly. The criteria mentioned only play a very subordinate role in legal audits. To this day it is legally, at least in principle, irrelevant whether the self-employed person works for this client for one day or three decades. If the first two criteria are permanently met, the self-employed person in Germany is only required to take out pension insurance, but can be legally self-employed under the law. On the other hand, whether he is bogus self-employed is largely independent of other criteria, e.g. B. the test of independence from instructions or free allocation of time and place. The work on the client's premises is taken into account, but only marginally. This leads to the fact that supposedly self-employed, to which the above criteria do not apply, can be classified as pseudo-self-employed.

The Deutsche Rentenversicherung Bund, for example, considers the number of clients to be irrelevant, and checks each individual contractual relationship independently, although this contradicts both the general understanding of the law and earlier legal stipulations. This is justified by the fact that employees can also have several employment relationships.

In contrast to the public assumption, (the risk of) pseudo self-employment, more precisely the determination of dependent employment, is not a characteristic of the self-employed, but a characteristic of the circumstances that the client creates in the specific assignment. The request to a self-employed person to be commissioned that he should please provide evidence that he is not bogus self-employed is therefore without any basis. In contrast to the legal situation in the Netherlands, for example, there is no general certification or examination under specifically German law. Since each order is viewed separately, the client essentially determines whether the conditions are met, for example whether he tries to make rules that run counter to the free time management. Conversely, this means that the existence of bogus self-employment in one case by no means completely negates the independence of the person concerned.

Legal issues

Through the employment of workers in the service of another under is § 611a BGB to job performance obligation bound by instructions, heteronomous work in personal dependence. The right to issue instructions can concern the content, implementation, time and place of the activity. Those who are not essentially free to organize their activities and determine their working hours are bound by instructions . The degree of personal dependency also depends on the nature of the respective activity. To determine whether there is an employment contract, an overall view of all circumstances must be made. If the actual implementation of the contractual relationship shows that it is an employment relationship, the designation in the contract is irrelevant.

Affected are three largely independent legal areas : the Social Insurance Law , the Labor Law and Tax Law . Social law plays the greatest role, especially in connection with status assessment procedures or social security examinations . In particular, the determination of pseudo self-employment in social law, i.e. the obligation to make social security payments (for both parties), does not directly result in an employment relationship within the meaning of labor law.

Social security law

Section 7 (1) SGB ​​IV defines employment as non-self-employed work, especially in an employment relationship. Clues for employment are an activity according to instructions and an integration into the work organization of the instructor. Employment in the sense of social security law isdefined as dependent work , in particular in an employment relationship , inaccordance with Section 7 (1) SGB IV. From the reference “in particular in an employment relationship” it can be concluded that it is always an employment relationship when an effective employment relationship has been established. The decisive feature thatturnswork into employment in terms of social security is not self-employment. However, this characteristic is not defined in more detail, but is made moreconcretethrough the extensive case law of the BSG on the question of the existence of an employment through other characteristics.

The main characteristic feature of dependent employment is personal dependency. When establishing the status of an employee, the BSG assumes the main characteristic of the employee's personal dependence on the employer , with personal dependency being practically used synonymously with non-self-employment. In the opinion of the BSG, all circumstances of the individual case must be taken into account. The overall picture of the respective work performance is always decisive, taking into account the traffic view. A lack of independence is mainly characterized by the fact that there is no possibility of disposing of one's own workforce or that the external control of the activity characterizes the employment relationship. There is no own permanent establishment and no essentially freely organized work. Someone does not bear any entrepreneurial risk or is integrated into a company. A company is to be understood as any - and not just a commercial - work organization , e.g. B. the presence of a supervisor who regulates the work process. If the contractor is bound to only one contracting party ( exclusivity ) or if the work is performed exclusively in the name and for the account of the client , the situation is more like an employee. This also applies if the contractor has to submit to an extensive contract of the client without any room for maneuver of his own, or if order and monitoring systems are designed in such a way that ongoing control (e.g. via an operational radio system) is possible for the client at any time.

Legal development

From 1999 until the amendment to the Social Security Code in 2003, pseudo self-employment according to Section 7 (4) SGB ​​IV was assumed if at least three of the following five criteria were met:

  • essentially and in the long term - around five sixths of sales - is traded for one client
  • the self-employed does not employ any employees subject to social insurance
  • the client has such activities carried out regularly by his dependent employees
  • the self-employed does not show any typical entrepreneurial characteristics
  • the activity corresponds to its external appearance according to the activity previously carried out for the same client in an employment relationship.

From 2003, Section 7 (4) SGB IV only stated that people who applied for a start-up grant in accordance with Section 421 (1) SGB ​​III would be refutably assessed as self-employed for the duration of their funding. With effect from July 1, 2009, paragraph 4 was deleted without replacement.

In March 2017, the 12th Senate of the Federal Social Court (BSG) introduced the amount of the fee for the self-employed relative to the earnings of employees as a new criterion. The amount of the fee is therefore a “weighty” criterion / indicator for real independence (in the specific case, this was 40 euros to 41.50 euros per hour of care). However, the amount of the fee is only an indication to be taken into account in the overall assessment, which is why excessive requirements must not be placed on the comparability of the activities under consideration or the comparison of the respective fees or fees.

The Federal Social Court also specified its case law on binding instructions. Of these are transfers of considerable weight required. Occasional instructions as well as the already irrelevant subject-related instructions cannot jeopardize independence.

Even the agreement of a fixed hourly fee would not necessarily speak in favor of dependent employment when it comes to pure services and due to the peculiarities of the service to be rendered, a success-related fee is regularly excluded.

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 (freelance workers for radio and television companies who are economically dependent and comparable to an employee in need of social protection) nor to Home workers or house traders ( Section 2 HAG). Freelance workers are self-employed people with a service contract within the meaning of Section 611 BGB. The rules of labor law do not apply to them. Freelancers practice a scientific , artistic , literary , teaching or educational activity independently, including, for example, 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 auditors, tax agents, alternative practitioners, dentists, physiotherapists, journalists, photo reporters, interpreters, translators, pilots and similar professions ( Section 18 (1) No. 1 EStG ).

An entrepreneur can also be someone who has no employees (such as a commercial agent ); An employer can be someone without being an entrepreneur (a retiree employs domestic staff ). The resident doctor is self-employed, but not an entrepreneur, because the practice of medicine is not considered a trade ( Section 6 GewO ), but it is the employer of medical assistants . Normally, however, the employer is also the company owner and labor law is the company's internal law .

The demarcation to the employee has always concerned the legislature , the specialist literature and the case law. These deal, among other things, with the legal question of whether someone is subject to the instructions of another due to the management law or not (labor law) or whether he earns income from self-employed work or income from self-employed work (tax law).

Workers who, owing to a private law employment contract in the service of another for power is required in personal dependence bound by instructions, externally imposed work and is incorporated in a foreign work organization. The real business content shows whether there is a contract for work , a service or an employment relationship. Mandatory legal regulations for employment relationships cannot be waived by contracting parties giving their employment relationship a different name; a salaried employee does not become a contractor by imposing a guarantee of success. If the agreement and actual implementation contradict each other, the latter is decisive.

criteria

The federal courts , especially the Federal Labor Court (BAG) and the Federal Social Court (BSG) have developed criteria on the basis of which bogus self-employment can be assessed. Indications for self-employment are:

The more someone works independently and independently of third parties, the more likely it is to be self-employed.

The legal regulations applicable in Germany have been revised several times. After a classification was initially carried out in 1999 based on specific specific circumstances, it is now only regulated in Section 7, Paragraph 1, Clause 2 of SGB ​​IV : “Indications for employment are an activity according to instructions and an integration into the work organization of the instructing person.” Important for understanding is the term clues . The self-employed is assessed in a comprehensive overall view or overall assessment, for which, according to the Federal Social Court, the following is necessary: ​​“A lawful overall assessment presupposes that all indications relevant to the situation of the individual case are determined, correctly recognized and weighted in their scope, in the overall view This weight must be set and then clearly weighed against each other. ”These criteria therefore still include the organization of working hours, the possibility of having the agreed service performed by third parties and the corporate image. This means that the number of clients is also relevant, even if this is (no longer) a direct criterion. The same applies to acquisition behavior , market presence and entrepreneurial risk.

Self-employed persons subject to pension insurance

Even if an employee is not bogus self-employed, he or she can still be subject to pension insurance . This is regulated in Section 2 Clause 1 No. 9 SGB ​​VI . In addition to a list of professions that are subject to pension insurance (because they are classified as particularly worthy of protection) such as teachers, artists and carers, the colloquially so-called employee-like self-employed person is defined there under 9 , but not literally called that.

Controls and criminal liability

Legislators have long tried to combat bogus self-employment. In the course of this, he defined bogus self-employment as a case of undeclared work in 2004 with Section 1, Paragraph 2, No. 1 of the Anti-Illicit Work Act (SchwarzArbG) . The Financial Control of Undeclared Work (FKS) of the main customs offices is responsible for uncovering illegal employment relationships .

As a rule, there is also a violation of Section 266a (1) StGB because the employee's shares were withheld .

Legal consequences

A bogus self-employed person is classified as an employee. Employment law ( protection against dismissal , vacation , employer contributions ), tax law ( income from non-self-employed work ) or social law apply to them .

Under social security law, pseudo-self-employed are considered employees, so that contributions to social security ( health , pension , long-term care and unemployment insurance ) have to be paid for them. When calculating the employer's contributions to the statutory accident insurance , the expense for bogus self-employed must be included in the wage bill. With the exception of the past three months , the employer can be obliged to pay the employer's and employee's share retrospectively for up to 30 years (in the case of willful evasion). The employee is liable for a maximum of three months. For this reason, the employer's right of recourse against the employee for periods further back in the past is predominantly denied, even if it is certain that both acted willfully.

The parties involved can obtain a clarification of the status issue in front of the clearing house of the German Pension Insurance Association ( status determination procedure : optional inquiry procedure according to Section 7a, Paragraph 1, Clause 1 of SGB IV). However, the inquiry process is only possible if the Deutsche Rentenversicherung has not yet initiated any proceedings at the time of the application. The status procedure is also based on the overall situation.

In order to clarify the tax situation in advance, you can apply to the responsible tax office for income tax information according to § 42e 42e EStG.

If the employer and the employee work together to reformulate an employment relationship into a work contract, the employer can not deduct the sales tax that the employee has wrongly shown in his outgoing invoices as input tax . Joint wage tax is evaded if the employment relationship is only transformed into a work contract on paper.

Anyone who successfully sues themselves in an employment contract will ensure that the employer will have to pay half of the social security contributions in future and that compulsory social security insurance will arise retrospectively for the past. The employer must pay the full amount of the contributions, including the employee's share ( § 28e , § 28g SGB ​​IV). If the employee was voluntarily insured in statutory health insurance, these contributions will be reimbursed.

The different interpretations in labor and social law can lead to the difficult to explain legal situation in Germany that suing in employment relationships is associated with a high legal risk for those who wish to do so (for example also with public clients ) while, conversely, the self-employed are free to give up their work chosen existence. The extent to which basic rights such as contractual autonomy are adequately recognized , especially in borderline cases such as self-employed workers , can be questioned on a case-by-case basis. This applies in particular if the vulnerability of those affected and payments made into existing social security systems are not adequately checked before the freedom of contract is restricted.

International

In Austria , bogus self-employment is assumed if someone of working age appears as a self-employed entrepreneur, although he does a job that is equivalent to that of an employed employee. The type of activity performed is always used as a criterion for the assessment. With the accusation of bogus self-employment, the authorities assume that dependent employment is to be circumvented in order to save on tax and social security contributions. A circumvention of the protection against dismissal on the part of the client is automatically assumed here. Bogus self-employment is when someone, according to the contract, provides independent services or works for a third-party company, but actually works as if in an employment relationship. The main difference to a salaried employee is that no social security contributions or income tax are paid and rights such as protection against dismissal and vacation entitlement are no longer applicable. The difference to a self-employed results from the elimination of typical entrepreneurial activities such as the provision of services in your own name and for your own account, customer acquisition, marketing measures, free time management, use of capital and employees.

The Swiss law distinguishes between self-employment and dependent activity. In self-employment, the working person runs his own business , bears the full entrepreneurial risk and, in particular, takes care of social security himself . She does not receive any wages for her work, but the profit from her work. From the point of view of old-age and survivors' insurance , self-employed people appear on the market under their own name, work on their own account and thus bear the economic risk themselves. In addition, they organize their work freely and independently so that they can freely determine the nature of the working conditions, in particular the working hours. You are not bound by instructions like a regular employee would be.

literature

  • Horst Henrici: The legal protection for bogus self-employed. Publishing house Dr. HH Driesen, Taunusstein 2002, ISBN 3-936328-02-1 (zugl .: Bremen, Universität, Dissertation, 2001).
  • Gregor Thüsing (Ed.): Pseudo self-employment in an international comparison . Peter-Lang-Verlag, Frankfurt am Main 2011, ISBN 978-3-631-60796-1 .
  • Simon Gerber: The bogus self-employment within the framework of the individual employment contract. Motives - delimitation - manifestations - legal consequences. Haupt, Bern 2002, ISBN 3-258-06619-1 .
  • Ulrike Exner: Consequences of the misunderstanding of the labor law status - the treatment of the lack of legal form in terms of labor law and social law. Dissertation. University of Hanover, 2005, ISBN 3-8325-1112-1 .
  • Wolfgang Heidl: Bogus self-employment. In: NWB. 17/2013, p. 1323 ff.
  • Denis Lanzinner: bogus self-employment as a criminal offense . Duncker & Humblot, Berlin 2014, ISBN 978-3428143771 .

Web links

Individual evidence

  1. ↑ Tina Groll : Young Workers: The precarious job entry is becoming normal. In: Zeit Online. July 5, 2012, accessed March 14, 2016 .
  2. ^ DGB, Die Rechtsfrage 5/2015, Contracts for work and services: What rights do employees have?
  3. ↑ a b c BSG, judgment of December 1, 1977, Az .: 12/3/12 RK 39/74
  4. ↑ BSG, judgment of May 31, 1978, Az .: 12 RK 25/77
  5. ↑ BSG, judgment of November 30, 1978, Az .: 12 RK 33/76
  6. ↑ BSG, judgment of March 29, 1962, Az .: 3 RK 74/57
  7. ↑ Law for the Promotion of Self-Employment of December 20, 1999 ( BGBl. 2000 I p. 2 ), by which paragraph 1, p. 2 was also inserted. Paragraph 4 originally inserted by the Act on Corrections in Social Insurance and Securing Employee Rights of December 19, 1998 ( Federal Law Gazette I p. 3843 )
  8. ↑ Second law for modern services on the labor market of December 23, 2002 ( Federal Law Gazette I p. 4621 )
  9. ↑ Law amending the fourth book of the Social Security Code and other laws of December 19, 2007 ( Federal Law Gazette I p. 3024 )
  10. ↑ BSG, judgment of March 31, 2017, Az .: B 12 R 7/15 R
  11. ↑ bogus self-employment: Federal Social Court assessed level of fees as a criterion for independence in computer science Currently, ISIN 2511-7564. Retrieved April 25, 2017 .
  12. ↑ BAG, judgment of August 11, 2015, Az .: 9 AZR 98/14
  13. ^ Hermann Reichold, Labor Law, 2nd edition, Beck, Munich 2006, § 2 Rn. 5, ISBN 3-406-53869-X
  14. ↑ BAG, judgment of September 25, 2013, Az .: 10 AZR 282/12 = BAG NZA 2013, 1348
  15. ^ BAG, judgment of September 25, 2013, Az .: 10 AZR 282/12
  16. ↑ BAG, judgment of August 29, 2012, Az .: 10 AZR 499/11 = BAGE 143, 77
  17. ↑ PAGE 141, 299
  18. ^ BAG, judgment of March 15, 1960, Az .: 1 AZR 301/57
  19. ↑ BSG, judgment of March 31, 2017, Az .: B 12 R 7/15 R
  20. ^ BSG, judgment of April 25, 2012, Az .: B 12 KR 14/10 R
  21. ↑ Scheinselbständigkeit.de about self-employed persons similar to employees
  22. ↑ Status determination procedure. German pension insurance, accessed on July 24, 2019 .
  23. ↑ Call information according to § 42e EStG. In: BMF letter. Federal Ministry of Finance, December 12, 2017, accessed on July 24, 2019 .
  24. ↑ Bundestag is to pay 1.45 million euros. In: sueddeutsche.de. October 7, 2014, accessed April 21, 2018 .