Use of freelancers: risks and solutions

Businesses are increasingly using "self-employed" people to work alongside them. The motivations are diverse:

- they can't manage to recruit and they know a freelancer who has the skills,

- the person you need is self-employed and does not want to be an employee,

- the mission is time-limited and it's more convenient than hiring,

- it will cost less than hiring, etc.

The regular clients of these self-employed workers include communication agencies for their graphic designers, engineering offices for their engineers, IT project platforms for their consultants, company managers for their secretarial activities, training organizations for their trainers.

The freelancers concerned often have few clients and are completely dedicated to the company that calls on their services for a more or less long period of time. From a social and tax point of view, they have opted for micro schemes that simplify their life as an entrepreneur and allow them to contribute at reduced rates.

This situation is particularly favourable:

1. to the reclassification by URSSAF of the commercial relationship as a salaried relationship: it will seek to remove the legal presumption of non-salaried employment by establishing that there is a permanent legal subordination link between the provider and the company. In this hypothesis, the company will have to pay employee and employer contributions on the invoices, which will be reclassified as net wages paid ;

2. the conviction of the ordering undertaking for concealed work, which will make it possible to activate the mechanism of financial solidarity with the "service provider": the undertaking will be jointly and severally liable for the payment of tax adjustments, taxes and compulsory contributions as well as increases and penalties owed by its "service provider" to the Treasury or to social protection bodies.

How to circumscribe URSSAF risks

Before the start of the contract, the company has to make sure of the legal framework of the service contract by obtaining a self-employed person :

- the extract of the registration in the RM/RCS or the extract from the SIRENE directory or the receipt for filing a declaration with the CFE for those who are in the process of registration ;

- an estimate on which the entrepreneur's contact details and the registration number of the RM, RCS or Professional Order are mentioned;

- if the contract is for an amount of at least €5,000 before tax, a URSSAF certificate of vigilance to ensure that the micro-entrepreneur is in good standing with the social and tax authorities. This certificate is to be re-obtained every six months until the end of the contract, as with any subcontractor. If the certificate shows that the micro-entrepreneur has failed to comply with his or her obligations to declare contributions, the client is obliged to enjoin his or her co-contractor to put an end to this situation without delay, by registered letter with acknowledgement of receipt.

For the entire duration of the contract, the company must consider the service provider as a self-employed person without any subordination link.

It must neither give orders and directives nor sanction any breaches. The service provider must remain free to organise his work and working hours.

The client company must also check that the service provider works for other clients (invoices received must not show a continuous sequence of numbers).

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