What is a false self-employed person and what is it not: differences with a TRADE and established sanctions

The Government has reiterated on several occasions that the false self-employed are in the crosshairs of the Labor Inspectorate. With the latest ruling on the riders case, this figure has generated even more debate. But what is a false self-employed?

The problem lies in the similarity that this figure has with that of the self-employed TRADE, hence the ease of passing a worker, who should be salaried, for a self-employed professional; which is totally illegal. The Economically Dependent Self-Employed Worker (TRADE) has very specific characteristics and, if none of them were present, it would be a false self-employment.

What is an Economically Dependent Self-Employed Worker (TRADE)?

After the regulation of July 11, 2007 of the Statute of Self-Employment, which included the regulation of the Professional Regime of the economically dependent worker, to be recognized as a TRADE, specific assumptions must be made that differentiate it from a worker by own account to use:

– At least 75% of the income comes from the same payer (this is what makes you economically dependent)

– Do not have employees under their responsibility, nor subcontract part or all of the activity to third parties.

– Have their own material and infrastructure.

– Be the one who defines how you organize your activity and your working hours.

– Charge remuneration based on results as agreed with the client.

– Do not have premises, office or office open to the public, or be a partner of a third party.

What is a False Autonomous?

A false self-employed worker is an employee who is forced to register as a self-employed worker for reasons of the company that hires him. However, this professional continues to have all the characteristics that would define a salaried employee.

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This figure appears with the aim of the employer company avoiding certain responsibilities with Social Security, such as paying taxes for employing an employee. Economic responsibilities that now fall on the worker.

Two terms appear here to differentiate a TRADE from a false self-employed person, which are the ones used by the courts to issue sentences in this sense:

– Unit: refers to the power of direction of the employer employer. That is, it is the company that dictates the remuneration, working hours or means of production, among other things.

– Alienation in the risks: normally, the company would assume part of the social security contributions, the hiring of the worker or the cost of dismissal, among other things; while in the case of a false self-employed these risks of loss of assets disappear.

Differences between a TRADE and a False Self-Employed

Although the commercial relationship is the same in both cases, there are a number of differences that make the employment relationship illegal.

In the first instance, one of the most repeated cases is the imposition of a working day. A TRADE has the right to establish their working hours and days to their liking, as well as vacations. If not, it would be a false self-employed.

An economically dependent self-employed worker has his own material and his own means of production, as well as his place of work. When the professional carries out their activity in the company’s office or uses a company computer, or any other material provided by the contracting party, they would be falsely self-employed.

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A TRADE chooses the remuneration that it will receive for its services or, ultimately, agrees with the payer; as any other self-employed person would. In the case of a false self-employed person, the amount to be received is imposed by the employer, as if it were a salary.

Why is it illegal to hire bogus freelancers?

The false self-employed person has all the responsibilities that a self-employed person would have and, at the same time, an employee. However, he does not enjoy the rights that an employee would have.

This represents a significant saving in social costs by the company, the main reason why this practice is fraudulent.

On the other hand, the figure of the false self-employed person is illegal insofar as he is paying taxes to the Treasury and Social Security in a different way than he should.

Consequences of hiring a fake freelancer

According to the European Institute of Tax Consulting (INEAF), hiring false self-employed workers constitutes labor fraud. Article 22 of the Law on infractions and sanctions in the Social Order considers a serious infraction “not requesting the initial affiliation or the registration of the workers who enter your service, or requesting the same, as a consequence of inspection action, outside the established term For these purposes, an infraction will be considered for each of the affected workers.”

In other words, based on the amount of the sanctions for committing serious infractions in matters of Social Security established by the Administration, the fines would be:

– Fine of 3,126 euros to 6,250 euros in its minimum degree.

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– Fine of 6,251 euros to 8,000 euros in its medium grade.

– Fine of 8,001 euros to 10,000 euros in its maximum degree.

In any case, if the Labor Inspectorate detected this irregularity, it would initiate a procedure and urge Social Security to automatically register these workers as wage earners.

In addition, it could demand the payment of Social Security contributions and other concepts of joint collection not entered for the time that the worker had to have been contributing as an employee. In this case, the installments of the last four years could be claimed, plus surcharges, interest and costs that range between 50% and 110%.

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