Contracting With Freelancers


Every growing IT company sooner or later needs extra manpower. It's usually time to hire new employees, but sometimes it will be more attractive to hire an IT professional on a freelance basis. A freelancer can be interesting, for example, if you need specialist knowledge for a specific project. Freelancers can also offer a solution to cope with temporary understaffing or peak loads. A number of legal hurdles must be taken when employing a freelancer. What points of interest are there when you hire a freelancer and how do you cover the legal risks?

Flexibility is an advantage and disadvantage for freelancers

A freelancer isn't regarded as an employee by law, but as a contractor. This offers important advantages from an entrepreneur's perspective, because that means that you don't have to take labor law into account . For example, freelancers aren't entitled to a fixed salary and can't rely on protection against dismissal. So you can see per project whether extra hands are needed and if it's temporarily quieter, you also incur no costs. On the other hand, a freelancer has few obligations: he determines his own agenda and isn't obliged to accept an assignment.

The law offers you a lot of scope to make agreements with freelancers at your own discretion. This offers flexibility, but at the same time makes it necessary to conclude a clear hiring agreement. Unlike in labor law, there are few legal rules to fall back on in the event of disagreement. A number of subjects deserve extra attention.

The content of the assignment

It's essential that it's clear which work the freelancer will perform and at what price. This speaks for itself, but still regularly leads to problems in practice. Certainly if you agree a fixed price for a project, it's important that parties know what they can expect from each other. For example, if you have a website built, clearly agree with the freelancer which functionality the website should ultimately have. If the parties aren't in line with this, this can lead to discussion afterwards.

Even if you hire a freelancer based on actual costs, it's important to clearly outline the work. If the assignment isn't sufficiently described, there is a risk that the freelancer will devote his time to the wrong activities. Also take into account any expenses. Are these included in the hourly rate or not? It's annoying to have to haggle about an invoice afterwards.

Hiring agreement or employment contract

An essential point in the hiring agreement is that the freelancer must really be independent and that he can't be seen as a fictional employee. If it turns out afterwards that there is actually an employment relationship, this can have considerable (tax) consequences for both you and the freelancer.

In the first place, the tax authorities can impose an additional tax on unpaid wage tax, possibly plus a fine. Secondly, social contributions will have to be paid retroactively. Finally, the freelancer can lose his deductible items as an entrepreneur, as a result of which, for example, he can't make use of the self-employed person's allowance.

A wrongly hired contract may also have direct consequences for the relationship between you and the freelancer. If the agreements made de facto result in an employment contract, the freelancer can still invoke employment protection (such as dismissal protection). Your relationship with the freelancer may then be less voluntary than was previously intended.

Situation in practice

It's also important that the (model) agreement concluded matches the actual situation. A judge or the tax authorities not only look at the agreements on paper, but also at the situation in practice. If you agree on a hiring agreement, but the freelancer actually acts as an employee, the employment relationship can still be regarded as an employment relationship. So always check whether there is actually freelance.

Intellectual ownership

If you engage a freelancer for development work, it's important to make clear agreements about intellectual property. After all, software and other programming work (such as the source code of a website) is protected by copyright. Pursuant to the law, copyright belongs in principle to the programmer. If the programmer is an employee, then there are legal exceptions and copyright usually belongs to the employer. However, such an exception doesn't apply to freelancers. You must therefore explicitly agree with the freelancer that the copyrights will be transferred.

Processing of personal data

If personal data are processed by you, you must also take into account the applicable privacy legislation. Pursuant to the law, personal data may only be transferred to the freelancer if agreements have been made about, for example, the security thereof. It's also important to record how action is taken in the event of a data breach.

How can you work wisely with a freelancer?

If you opt for a freelancer, it's important to lay down clear agreements in a hiring agreement. An essential point here is that the contract is really inserted as a contract and not as an employment contract. Although it may be tempting to use a model from the tax authorities, it's wiser to set up your own standard or have it set up. This way you keep control over important topics such as liability and you know for sure that intellectual property and privacy are sufficiently regulated.

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