Requalification of Employment Contract

Some contracts may be reclassified as employment contracts if the business relationship is subordinate between the limited partner and the provider.

The transformation of a business relationship into an employment contract is neither instant nor automatic. It necessarily results from a requalification decided by a judge who establishes the existence of a subordination relationship between:

* a (falsely) independent or voluntary provider;

* and his client or association.

Requalification of employment contract: the relationship of subordination

Requalification into an employment contract requires proving the existence of a dependency relationship between the provider and his client.

A business, volunteer or work relationship without remuneration may be transformed into an employment contract when it recovers or conceals (if it results from a fraudulent arrangement) a subordination relationship between:

* a claimant whose status is in most cases self-employed (craftsman, liberal profession, auto-entrepreneur, etc.) or other (volunteer);

* a client and/or beneficiary of the work performed by the provider.

Requalification of employment contract: criteria not taken into account

For the subordination relationship to be characterized, it does not matter whether:

* the client/beneficiary and the service provider have described the situation as a business relationship, a contract for the provision of services, voluntary work, training or other services;

* the benefit is either occasional, accidental or of minor importance;

* the client/beneficiary:

- has not (or has never) been an employer;

- has not (or has never) hired and recruited the service provider and/or one or more other employees.

Principles taken into account for requalification of employment contract

For the requalification in contract of employment, it is the principles and the mechanisms of the labor law which are imperative of which the principle of reality.

Only factual circumstances are taken into account:

* the existence of a person (physical or legal) demonstrating the authority of an employer;

* and/or imposing a system and/or economic organization on a physical person who accepts and submits to it (regardless of status and quality).