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Employee status and
Fake independent
Employee status
Three elements characterize the salaried employment contract
The service, namely the personal commitment to provide work;
Remuneration
The relationship of authority between the employer and the worker
The essential characteristic of the employment contract is the legal relationship of subordination between the employer and the worker.
Differences with the independent contractor:
The employee has an obligation of means.
Lack of autonomy, hierarchical control
Payment of a fixed salary.
Independent status
An independent person is any natural person who carries out a professional activity in Belgium for which they are not bound by an employment contract or status.
Differences with the employee:
The self-employed person has an obligation to achieve results.
Autonomy, freedom to organize working time, freedom to organize work
Payment of fees.
Contract reclassification: Transition from “false self-employed” to salaried employee
Who can request such a reclassification?
ONSS Social Inspection
Worker
INASTI
Consequences of the reclassification:
Payment of salary arrears
Recovery
Civil and criminal penalties
Statute of limitations
Compensation for damages: CC1382
INASTI contribution recovery
Recovery of benefits unduly received
NSSO
Payment of both personal and employer contributions on the
remuneration received during the last 3 years (if fraud is proven: extended to 7 years)
+ Contribution surcharge set at 10%
+ late payment interest: 7% per year
How to avoid reclassification?
Drafting an agreement
Contract with a company rather than an individual.
Don't demand exclusivity
Avoid monitoring working hours
Avoid providing the freelancer with all the resources they need to work
Share the financial and economic risks
Do not impose any conditions on purchases or supplies
Plan for the possibility of a replacement
Require the self-employed individual to take out civil liability insurance towards you.
Apply general terms and conditions of sale
Set a notice period different from that of an employee
Exercise extra caution if you are active in one of the 5 sectors covered by the law of 25/08/2012 (construction, security, transport, cleaning, agricultural and horticultural work)
Excerpts from articles provided for informational purposes, originating from external sources that may no longer be adequate.
ASCEND ACCOUNTANT disclaims all liability related to these items.
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