(a) No.
(b) No.
(c) No.
(a) No.
(b) No.
(c) No.
In 2021, the Federal Labour Court decided that a contingent worker was an employee of a crowdworking platform. This decision is considered as having a significant impact on current business models.
The EU directive on platform workers, which was adopted by the EU Parliament in early 2024, seeks to improve the working conditions of individuals performing work for a digital labor platform. Broadly, the directive provides that an individual working for a digital labor platform will be presumed to be its employee where facts indicating control and direction are present. For more information, please see our client alert here.
Further, the EU member states have developed a new framework agreement in the field of social security to address the reality of regular cross-border remote working. The framework agreement on the application of Article 16 (1) of Regulation (EC) No. 883/2004 in cases of habitual cross-border remote working aims to promote the free movement of people within the EU while preserving their right to social security. The framework agreement came into effect on 1 July 2023. Please see our client alerts here and here for more details.
The main employment law risk is misclassification. In case of misclassification, the worker is considered an employee of the engaging company and is entitled to equal pay and holiday pay. If the worker has been employed with the engaging company for more than six months (which also applies if the worker is only engaged on an irregular basis), there is a risk that the Termination Protection Act applies and that the worker cannot be terminated without a valid justification. Furthermore, employee protection rights such as minimum wage and working time restrictions must be observed.
If there is no direct contractual relationship between the worker and the engaging company (e.g., engagement of the worker through an agency), this contractual setup can be considered as unlawful labor lease. Unlawful labor lease might result in fines of up to EUR 30,000 per breach being imposed by the local authority on the company and its managing directors. In certain cases, fines can go up to EUR 500,000. The authority can also seize the profit resulting from the use of contingent workers instead of employees.
The engaging company as de facto employer can be held liable for underpaid wage tax from payments made to the misclassified contingent worker. The de facto employer can, however, take recourse against the contingent worker (this is not possible in case of social security contributions). If the de facto employer does not take recourse against the misclassified contingent worker but assumes the wage tax liability, this will be treated as additional taxable benefit in kind subject to wage tax and social security contributions.
The de facto employer is also obliged to repay erroneously deducted input VAT (Vorsteuerabzug).
Penalties could reach up to EUR 10 million in case of intentional tax evasion.
Upon a finding of misclassification, the de facto employer will be liable for all social security contributions that have not been deducted from the remuneration, with retroactive effect up to at least four years (approximately 40% of the monthly remuneration amount), up to a maximum of 30 years. The employer has to pay default interest amounting to 1% per month in addition to the social security contributions that have erroneously not been paid (the employer has to pay both the employee's and employer's part of the contribution, and can only seek reimbursement of the employee's contributions for the last three months).
If workers are misclassified and social security becomes due, companies would need to consider the EU's new social security rules for cross-border employees (effective from 1 July 2023), if the individuals are EU-based and work in more than one EU jurisdiction. Please see our client alerts here and here for more information.
Social security contributions for up to 30 years plus punitive interest of 12% per year will be imposed in case of an intentional violation of social security obligations.
The engaging company as de facto employer is liable for all social security contributions that have not been deducted from the remuneration, with retroactive effect up to at least four years (approximately 40% of the monthly remuneration amount), with a maximum of 30 years. The employer has to pay default interest amounting to 1% per month in addition to the social security contributions that have erroneously not been paid (the employer has to pay both the employee's and employer's part of the contribution and can only seek reimbursement of the employee's contributions for the last three months).
Social security contributions for up to 30 years plus punitive interest of 12% per year will be imposed in case of an intentional violation of social security obligations.
Yes, the company can face penalties if employees are seen to be facilitating the tax evasion of contingent workers. Furthermore, representatives of the company can be held personally liable for underpaid wage tax.
Nonpayment of social security contributions and wage taxes and wrongful deduction of input VAT is a criminal offense in Germany, if the nonpayment is based on intentional misclassification. The criminal offense can result in a fine and/or imprisonment of the managing directors for up to five years, and in severe cases, up to 10 years. The risk is quite high in Germany if the employer has not taken necessary measures to avoid misclassification, such as implementing a robust compliance system or the use of so-called assessment procedures (Statusfeststellungsverfahren) for each contingent worker or an abstract opinion for similar jobs (gutachterliche Äußerung). These assessment procedures/abstract opinions are carried out at the request of the engaging company by the German Pension Insurance.