When is a freelancer actually an employee?
When there is a relationship of subordination. An employee works under an employer’s authority, a self-employed person does not. The parties are free to choose the status, but they must then work in line with it, as the Administrative Commission for the Regulation of the Working Relationship puts it.
Calling someone a freelancer in the contract is therefore not enough. If the day-to-day reality looks like employment, the label does not protect either side.
What are the four criteria?
The Commission assesses subordination with four general criteria:
- The will of the parties, as written in the contract, provided it matches how the work is actually done
- Freedom to organise working time: a fixed schedule, holidays that need approval and absences to justify point to employment. Timesheets kept for invoicing do not, on their own
- Freedom to organise the work: precise task definitions and instructions from a line manager point to employment. General guidelines linked to the result do not
- The possibility of hierarchical control: being exposed to internal sanctions or having to report like an employee. The possibility alone is enough
No single criterion decides. They are weighed against the reality of the relationship. Specific presumptions exist in some sectors, such as construction, security, transport, cleaning and agriculture, but not in IT.
What happens if the relationship is requalified?
It becomes an employment relationship. After a decision by the Commission, the requalification applies for the future, and the social security institutions carry out the regularisations: the client owes employer contributions to the ONSS, and late declarations can lead to surcharges and sanctions, according to the Commission.
A court or a social inspection can also requalify a relationship. The risk is mostly the client’s, but the freelancer is affected too. Assignments where an agency places people in a client’s team raise a related question, covered in our definition of staff augmentation, and secondment is the employee-side equivalent.
How do you stay on the right side?
In practice: invoice per day or per deliverable rather than receive a fixed monthly amount, keep control of your schedule and holidays, take instructions on the result, not on how you organise yourself, use your own equipment where possible, and work for more than one client over time when you can.
If your situation is unclear, you or your client can ask the Commission for an opinion or a binding ruling, before the relationship starts or within a year of its start. A ruling binds the ONSS, INASTI and the social insurance funds. The contract chain behind most assignments is described in how freelancing through an agency works.
