Field worker – employee or self-employed person

Higher Labor Court Munich, decision dated April 09/2016, 10 Sa 690/15

The case:
The employer distributes constructing components. His customers are approached via a call center, the details and addresses and possible appointment data of prospective customers are recorded and forwarded to the field workers. The claimant was initially hired as a freelance field worker and now seeks wages and permanent employment, arguing that he is an employee.

The claimant received messages from the call center on which an appointment date was noted with instructions to visit the customer on the specified date and to sell the products. The claimant reported on the results of each customer visit. Every morning, there was a meeting with the field workers who had appointments on that day, whereby the employer endeavored to enforce the attendance of the fieldworkers. The claimant received a company car for business use. The claimant was not obligated to be available daily or within a particular scope of work performance, and he was asked in advance whether he wanted to work on particular days.

The Decision:

In the view of the Higher Labor Court Munich, the claimant was sufficiently free to determine his working hours. The employer invoked his right to issue instructions with respect to the beginning of work each day of assignment (9:00 AM) and attempted to assert this right. This is not such a severe intervention, however, that it would be absolutely inconsistent with the status of a self-employed individual. It only pertained to the days on which the claimant was on assignment and, in addition, only affected a very limited portion of his time on assignment. It is true that the employer handled the appointment planning and determined the time when the claimant was to work in the field through transmittal of the messages. But the employer did not sanction the employee for changing customer appointments or referring them to other workers. The claimant therefore had the opportunity to influence the decision to keep and organize the appointments. Furthermore, the claimant was not obligated to work for the respondent on particular days or within a particular scope. The claimant was rather able to individually decide on his days of assignment, even if he was present almost on a daily basis. That is to say that the claimant was not the only worker who called on customers, and the employer was not exclusively dependent upon the assignment of the claimant. The claimant was indeed obligated to report on the outcome of the customer visits, but this did not substantiate any employment relationship. Nor did the employer determine the place of work performance. The obligation placed on the field worker to visit the premises of the respondent for a limited time on days of assignment in order to exchange information, to coordinate appointments and to receive substantive reports from customer visits is compatible with the status of a self-employed person. There were no further instructions concerning the routine and content of the customer appointments. Thus, there was sufficient room for a self-determined substantive organization of the tasks. With the company car, the employer only provided the possibility of using his equipment for performing the job.

Significance for Practice

Time and again, employers, especially in sales, are faced with the question as to whether they are employing an independent contractor or an employee. The decisive factor is always whether there is integration into a third-party work organization, i. e. whether the worker is subject to the right to issue instructions. The right to issue instructions may pertain to the substance, execution, time, duration and place of job performance. An employee is someone who essentially cannot freely organize his work tasks and  cannot independently determine his working hours. The judgment clearly demonstrates that in particular, the freedom to organize the job and the working hours are used as an extremely important differentiating criterion. This can be taken into consideration, especially in sales, when a company is organizing the assignment of field workers. Given the considerable risks in the assignment of self-employed persons, an expert evaluation of all actual circumstances in advance is advisable.

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Tags: #Labour law, #Newsletter Employment Law 4/16

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