More and more companies are using freelancers, auto-entrepreneurs or “freelancers” to cope with an overload of work by subcontracting part of the activity to them or to mobilize skills that they do not have within them.
This allows these “ordering” companies to accept contracts without having to recruit, train and retain paid staff after the mission has been completed.
Since these self-employed persons are not employees, this also prevents the company using them from having to declare them to social organizations, pay contributions and have to manage the possible absences of these workers.
In other words, if the provision of work is invoiced by the self-employed worker and therefore represents a cost, using this type of worker offers great flexibility in resource management and makes it possible to limit the risks associated with hiring an employee.
However, this type of organization is not without risks since the multiplication of the use of self-employed persons has been accompanied by an outbreak of disputes aimed at obtaining, for these self-employed workers, the status of employee within the company for which they provided services.
In what cases is a commercial contract reclassified as a permanent contract?
The requalification mechanism is both simple and merciless for contracting companies, since regardless of what may be provided for in the commercial contract, there will be requalification if the self-employed person justifies (Cass. Soc. December 19, 2000, No. 98-40572):
- Of a work performance;
- Remuneration;
- The existence of a relationship of subordination.
The financial consequences can then prove to be very serious for the ordering company, which may in particular be forced to pay the self-employed person any additional salary in the event of remuneration below the SMIC, overtime, redundancy payments, redundancy payments, social security contributions paid by the self-employed person as well as possible damages for hidden work.
In the event of requalification, the ordering company is also exposed to criminal convictions for hidden work resulting from the use of false self-employed persons, these sanctions having been considerably increased in recent years.
How to prevent the risks of requalification into a permanent contract?
However, these challenges, or even the first sentences handed down in this area, should not terrorize companies that use or intend to use self-employed workers since there are means to limit the risk of requalification.
Companies using self-employed persons must therefore be particularly vigilant to the existence of a relationship of subordination.
Several elements will allow the company sued for the reclassification of the self-employed contract into a permanent contract to avoid a conviction, by justifying, for example, that the self-employed person:
- Has declared itself as such to the competent bodies;
- Is not subject to any work schedule;
- Agreed on the price of the service on a fixed basis and not according to the number of hours or days of work;
- Completed his service without instructions or control from the client;
- Has its own material and equipment (business cards, website, email address...);
- Has the opportunity to work or works for other contractors.
Particular attention should be paid to cases where the ordering company uses self-employed workers who are former employees of the same company. In such a case, the courts assess with particular severity the requirement of worker independence by tending to consider that the change in the status of former employees was dictated by the company giving the orders (Cass. Crim. December 15, 2015, No. 14-85638).
The idea is that beyond what may be provided for in the commercial contract, the user company will have to prove that the self-employed person is truly independent in the performance of his service to avoid any risk of requalification.
It is therefore essential for the contracting company, both at the time of the conclusion of the commercial contract with the self-employed person and during the exercise of its service, to ensure its independence with the greatest attention.
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