Looking to the Other Side of the Bench: The New Legal Status of Independent Contractors Under the Italian Legal System
24 Pages Posted: 2 Feb 2018
Date Written: January 25, 2018
Self-employment has always been looked at with high suspicion by both lawmakers and legal scholars, under the undeclared assumption that long-lasting relationships where an independent contractor directly provides for an activity in favor of someone else often hides a substantial subordinate employment relationship, voluntarily obscured by the “strong” party, namely the employer, in order to avoid costs and legal responsibilities.
Over the past decades, the legal thinking on independent contractors has followed a common path among different industrialized countries, according to which something was inherently wrong or at least disputable in the general acceptance that a big part of the labor market was cut out from any regulation, i.e. protection, on the basis of the traditional distinction between employees and independent contractors.
Those thoughts were channelled in a broader debate on the effectiveness of the mentioned distinction, on the need to draw boundaries to the scope of application of the employment law on the first place, on the possibilities to partially, or entirely extend it to new (third) categories.
Different answers were given to the same big question: whether the notion of subordination was sufficient enough to efficiently face market and production changes that make the identity of the traditional type of employee blurred and hard to grab among a plethora of atypical workers, self-employed, jobs on call, temporary agency workers, and so on. In some European countries, such as the United Kingdom, with the category of ‘Worker’, and Germany, with the category of ‘Arbeitnehmerähnliche Person’, other categories of workers have been identified and regulated on the side of the ‘employees’ one, in order to address them with specific labor protections and to cut part of the independent contractors, characterized by a situation of substantial dependence, from a position of null protection by the law.
The same problem raise in the Italian legal system that alternatively adopted rather different approaches over time to answer the need of protection of weak parties and the necessity of legal certainty for employers and companies.
Forgotten for decades, watched with growing suspicions towards the end of the last century, when it was realized that there was a vast area of legislative and tax evasion in the ranks of the independent contractors’ community, the heterogeneous world of self-employed workers has never been object of a unique structured regulation under the labor perspective.
Traditionally, independent contractors have been seen as economic subjects capable of autonomously bargain the conditions of their contract, without the heteronomous intervention of the lawmaker.
Labor market evolution showed that this assumption is no longer valid or, at least, not necessarily. This is the reason why on June 6, 2017, Law No. 81, named “Measures for the safeguard of non-entrepreneurial self-employment and measures aimed at facilitating flexible articulation of subordinate employment”, has been approved by the Parliament.
The adoption of Law No. 81 traces an important line of separation with the labour law born and developed in the last century. For the first time, independent contractors become part of a community governed by special legal rules: they gain a relevant status also under employment law.
The choice of the current lawmaker was to create a set of dispositions that provides for rights and protections specifically designed for independent contractors and that, for the first time, the identity dimension of all of them is legally established.
On the one side, some dispositions recall those protections already provided for employees (for example, the suspension of the relationship, at the request of the worker, in the event of illness, pregnancy, accident), on the other, some rules focus on protecting the economic, social and contractual position of the independent contractors in the marketplace. These protection techniques are based on the regulations on subcontracting or commercial affiliation and aim at ensuring the proper functioning of the market by correcting its leaks.
In other words, the Law takes note of the radical difference between subordinate employment and self-employment and design specific solutions for each of them.
Keywords: employment, independent contractors, labour market
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