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OPINION! Dr. Benno Grunewald: Bogus self-employment, bureaucracy & the dangers of determining one's status

Some freelancers are not freelancers but workers and fictitious self-employed - at least for social security. Explained in an interview Dr. Benno Grunwald, what can be done against this classification and why a status application is not a good idea.

Dr. Benno Grunewald is a lawyer, specialist in tax law, mediator (DAA). He has successfully represented freelancers in various cases who have been classified by the German pension insurance association as fictitious self-employed. Members of the Professional Association for the Self-employed in Computer Science (BVSI) e. V. can call for clear legal information by telephone Dr. Benno Grunewald contact.

Mr. Dr. Grunewald, years ago I was asked by a publisher to submit a status application to the German Pension Insurance Association (DRB). However, a short time later I became a member of the artists' social insurance and the topic was finished. But: Would such an application have been a good idea?

In my opinion rather not: Company wrongly hope for a “clean bill of health” from requests for a status assessment. But they will not get this in 99 percent of the cases. In almost all cases in which a status assessment application is submitted, the DRB accepts a bogus self-employed employment relationship. So there is hardly a good argument for a status determination procedure.

So better not wake a sleeping dog?

I consider the voluntary initiation of a status appraisal procedure to be wrong. The only positive aspect to ensure safety over the employee relationship is a large number of possible negative consequences: the duration of the procedure is often very long. In some of my procedures, the employment relationships have long been terminated without a decision of the German Pension Insurance Federation (DRB). If it comes to the proceedings before the Social Court, it takes longer. Thus, in a case between the application and the decision of the Social Court 4 were years!

How can companies and self-employed persons avoid the status of self-employment?

It is important to check the contracts carefully and to update them if necessary. So there are always contracts in which the Federal Insurance Agency for Salaried Employees (BfA) is still mentioned, which has not existed for a long time. Furthermore, the contract should state that the freelancer is not involved in the client's operations and is also not bound by instructions. That he tries to provide the agreed services, but the fulfillment is not mandatory. I also urgently recommend that companies avoid the following addition: “The freelancer may not employ any employees or only employ limited employees”. It is cheaper to include the following sentence in the contract: "The freelancer may employ employees."

The contractual arrangements should be given the utmost attention in order not to provide the DRB with unnecessary ammunition for a corresponding contractual interpretation.

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Is the risk of being classified as pseudo self-employed, because great for freelancers and their clients?

For a long time the DRB has been trying to make employ- ees employees and employers from freelancers. The DRB recently failed in the case of the reasoning of the "insubordination" of the Social Court in Wiesbaden. With partial abstruse argument, the DRB tried in this case to construct a self-employed employment relationship, where none existed.

How were the arguments of the DRB in the case you have led to recognize a dummy entity?

The Deutsche Rentenversicherung Bund partially twisted the information provided by the freelancer into the opposite. While the freelancer had argued that he was not bound by instructions, the DRB recognized that the company had the right to give instructions. The freelancer can also not organize his working hours independently, but these must always be coordinated with the project management and the project team. The fee is not performance-related, as the freelancer stated, but is based on the number of working days. Since the freelancer does not use his own capital, there is also no entrepreneurial risk. The fact that the freelancer performs the work independently, as stated by him, does not justify self-employment. According to the DRB assessment, the status of the freelancer was "functionally appropriate".

After the opposition was rejected, the freelancer turned to the social court. To which judgment did the Social Court come?

The Social Court found 2010 in the year, 4 years after filing the application: The 1. January 2006 Consulting work carried out by a freelancer is to be regarded as a self-employed activity which is not carried out under an employment relationship. However, this verdict of the Social Court Wiesbaden has no binding effect on other social courts or state social courts. Ultimately, each case must be fought out individually.

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3 responses to “OPINION! Dr. Benno Grunewald: Bogus self-employment, bureaucracy & the dangers of determining the status ”

  1. frischgebloggt says:

    RT @SimoneJanson: Freshly blogged: Interview with Dr. Benno Grunewald on bogus self-employment and the ...: Fris ...

  2. Simone Janson says:

    Freshly blogged: Interview with Dr. Benno Grunewald on bogus self-employment and the ...

  3. Competencepartner says:

    Interview with Dr. Benno Grunewald on bogus self-employment and the dangers of the status festival ...

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