Employment rights if you are a polling station

Following several Supreme Court rulings on the so-called “riders” of digital home delivery platforms, it is considered that these workers should be employees of the company and not self-employed. The difference is important and especially affects SMEs, which must be cautious to avoid the figure of the false self-employed. We tell you what they are and what legal developments have taken place this year

What are the bogus self-employed?

A bogus self-employed person is a self-employed person, registered in the Special Regime for Self-Employed Workers (RETA), who is hired by a company to perform work that is actually work for others. In other words, he/she works as an employee, but does not have the rights of an employee:

• Social Security contributions are paid in full by the employee, so the company saves on labour costs when hiring.
• The bogus self-employed will have no paid holidays, leave or leave of absence, i.e. if they do not work, they do not get paid.
• Nor will they be entitled to compensation in the event of termination of the relationship with the company, unlike what would happen in the case of dismissal of a salaried worker.

Hiring a person as a false self-employed person is an employment fraud considered a serious offence, as the worker is not registered with the Social Security and the penalties for hiring false self-employed persons can reach up to 10,000 euros at the maximum level.

New penalties for bogus self-employment

The Government, and specifically the Second Vice-President, Yolanda Díaz, has fought against the existence of false self-employed workers with various legal measures. In February, Law 3/2003, of 28 February, on Employment, was published in the Official State Gazette, the Ninth Final Provision of which eliminates section d) of article 148 of the Law Regulating Social Jurisdiction. This suppression represents an important change since, with the elimination of this section, the administrative act of the Labour Inspectorate that establishes the employment nature of the relationship of a false self-employed person is fully enforceable from the moment it becomes final, without the need for a judge to recognise it, so it is no longer necessary to wait for a final judgement.

In other words, from the moment that the Labour Inspectorate records the transformation of the relationship with the bogus self-employed into an employment relationship, the employer must take measures to ensure that this is the case. The employer may challenge the Labour Inspectorate’s report before the economic-administrative courts, but must recognise and apply the employment status of the bogus self-employed. The new measure came into force on 2 March 2023, so that claims that have been admitted for processing before that date will follow the previously existing procedure.

In short, the legal change provides security for employees and reinforces the action of the Labour Inspectorate.

If you need help or employment advice for your company: do not hesitate to contact us.

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