a. Laws and Guiding Principles
The re-characterization of a self-employed relationship as an employment relationship is usually the result of mismanagement of the relationship. In the absence of specific regulatory provisions, the applicable principles can be found in case law.
b. The Legal Consequences of a Re-Characterisation
The main rule provides that once defects are ascertained, the relationship is converted ab origine (from the beginning) into an open-ended employment relationship. This means that the employee is entitled to the following:
- to go back to work, performing the same or similar duties;
- to any differences in remuneration between remuneration actually received and the amount due for the type of activity performed, on the basis of the provisions of the applicable collective agreements;
- to the differences between social security contributions already paid and the higher ones actually due;
- to the usual legal protections against unfait dismissal.
c. Judicial Remedies Available to Persons Seeking ‘Employee’ Status
The re-characterization of the relationship requires the filing of “ordinary” proceedings before the employment tribunal, where the worker is required to prove he/she was subject to the directives and disciplinary power of the employer and must show other indicators of an employment relationship.
If for example, a coordinated and continuous collaboration contract is characterized by exclusively personal and continuous work activities whose methods of implementation, also in relation to timing and workplace, are organised by the employer (hetero-organization), then it is automatically converted into an open-ended employment contract pursuant to Art. 2 of Legislative Decree no. 81/2015.
When the re-characterization is connected to acquiring legal protections against unfair dismissal, such a claim has to be filed accordingly to the specific rules of the new proceedings, introduced by Law no. 92/2012, for challenges against dismissals (a proceeding specifically introduced in order to allow a quicker execution and conclusion of such lawsuits) and no longer applicable to employees hired from 7 March 2015.
d. Legal or Administrative Penalties or Damages for the Employers in the Event of Re-Characterisation
The employer will face administrative sanctions for delayed payment of social security contributions in the correct measure.