DBA Act

HeadFirst Group and ONL voor Ondernemers are joining forces as of March 1. Last week Gert-Jan Schellingerhout, CEO HeadFirst Group, and Mike Korenvaar, CFO HeadFirst Group, signed the cooperation agreement together with ONL chairman Hans Biesheuvel. Both parties will act together for a fair flexible labor market in which hirers and providers of knowledge - and organizations that connect them - have room to do business. Monitoring and positively influencing labor market legislation, with the replacement of the Wet DBA in the lead, is a spearhead.

Getting lost in political Hague

ONL, located in the heart of The Hague and a stone's throw from the Binnenhof, as an independent foundation is the link between HeadFirst Group and politicians in The Hague. "Over the years, ONL has built a large network of politicians, civil servants and policy officers. The office in The Hague offers the opportunity to be 'close to the fire' and engage with policymakers. In addition, ONL provides political monitoring, so that we as an organization remain informed of relevant developments. A good next step in our public affairs and lobbying strategy," said Schellingerhout. "We also think we can add value to ONL with our knowledge, data and relationships with tens of thousands of clients, suppliers and the self-employed. Together we will work for the higher goal: to give entrepreneurs space."

About ONL for Entrepreneurs

ONL voor Ondernemers aims to make the Netherlands more entrepreneurial together. The entrepreneurs' organization makes the voice of the entrepreneur heard by lobbying, raising problems and proposing solutions for issues that affect entrepreneurs. ONL takes a critical stance against ramshackle legislation, such as the DBA Act and the Employment and Security Act, but not without presenting a well thought-out alternative that will benefit entrepreneurs.

Last Thursday, the House of Representatives met for the last time just before the summer recess to debate outgoing State Secretary Vijlbrief (Finance). Around midnight, MP Pieter Grinwis (ChristenUnie) tabled a motion asking the cabinet to provide more clarity on the enforcement moratorium - the period of limited enforcement - and the DBA law in the near future. With a large majority in favor of the motion, the House signaled its support for the content of the motion and its desire to first have a "reasonable and enforceable alternative to the DBA Act" before starting enforcement on false self-employment. Vijlbrief wanted to clarify something on this: "The enforcement moratorium does not end in October. It runs at least until October and then we will see what we will do." This echoes that the limited enforcement will be extended until there is clarity on an alternative to the DBA law, a reassurance for clients, self-employed workers and intermediaries.

Unrest in media

In recent weeks, several reports appeared in the press about ambiguity surrounding the DBA law. ZZP Nederland and PZO sent a fire letter to Vijlbrief on June 17 to make a decision on the enforcement moratorium in the short term. Research by HeadFirst Group also showed that, because of the approaching end of the enforcement moratorium, clients started to act risk-averse and looked more critically at the hiring of independent professionals, thereby terminating assignments of self-employed professionals prematurely and making it increasingly difficult for self-employed professionals to find assignments. This unrest and uncertainty - especially now that the Dutch economy is back in the starting blocks - is far from desirable, for self-employed professionals, clients and intermediaries alike.

Good move by Vijlbrief

In any case, the enforcement moratorium of the DBA law will not expire on October 1, 2021. The government intends to wait for the results of the web module pilot before making a decision on the enforcement moratorium and the introduction of new laws and regulations. This is in line with the earlier progress letter "Working as a self-employed person," which indicated that "the phasing out of the enforcement moratorium will be linked to the introduction of new legislation, which provides more clarity about the nature of the employment relationship. The market will also be given sufficient time to get used to new measures.'

We are still waiting for a clear and enforceable alternative to the DBA law, but for now we are pleased that the Secretary of State has received the signals and has taken this decision. Han Kolff, CEO at HeadFirst Group, is satisfied and relieved: "From signals we received from clients and freelancers it became clear that people were really ready for clarity and decision making from The Hague. Our research emphasized this with facts and figures. It is a wise choice that the enforcement moratorium remains in place until more is clear about the results of the web module pilot and replacement legislation for the DBA law. This gives the market more time to get used to new measures, gives zzp'ers more certainty to do business and gives politicians time to consider how best to proceed with enforcement. Great that this peace is being created and that we can start building new laws and regulations together."

More than half of highly skilled self-employed professionals are finding it harder to find assignments since the introduction of the DBA law in 2016, introduced at the time to better protect precisely vulnerable self-employed people. This is according to a survey by HR service provider HeadFirst Group, in which over 1,700 self-employed professionals (zp'ers) recently participated. "It is imperative that politicians immediately extend the current period of limited enforcement to prevent further negative consequences for highly skilled self-employed professionals and clients," stated Han Kolff, CEO at HeadFirst Group.

Lack of clarity about DBA law hinders more and more clients and self-employed workers
Since the introduction of the DBA law, there has been much to do about it. After its introduction the law was quickly frozen, because in a short time there was much unrest among clients, who started to hire fewer self-employed workers. Since then, new legislation has been worked on and, in the meantime, a limited enforcement policy applies. As the research of HeadFirst Group now shows, the negative effects of the legislation for self-employed workers are still present and even increasing.

More than 55 percent of independent professionals experience that clients look more critically at zp'ers now when hiring externally than they did a year ago, the survey found. Recent examples in the press of clients putting their zp hiring under strict scrutiny support this view. In practice, assignments for which clients are looking for an external professional are increasingly indicating "no self-employed person may respond to this assignment. This makes it more difficult for more than half of the self-employed to find assignments, it turns out. So currently hundreds of thousands of self-employed people are experiencing hindrance. This is in addition to the self-employed, nearly 40 percent, whose assignments have been terminated prematurely by the client in recent years due to concerns and lack of clarity surrounding the legislation.

Han Kolff, CEO at HeadFirst Group: "That clients are looking critically at hiring self-employed professionals for roles where perhaps someone in permanent employment would make more sense is good. But there is no reason to panic, as replacement legislation is going to come. However, the date of Oct. 1, 2021 - when the current limited enforcement ends - is getting closer, causing many organizations to tighten their belts around zp'ers. This was to be expected. Large clients are acting risk-averse, and blame them. The key lies with politics."

Solution: continue enforcement freeze
The negative consequences are twofold: self-employed workers see work evaporate and clients, who already have a hard time recruiting good professionals due to scarcity on the labor market, risk having to sideline an important target group with valuable knowledge. Han Kolff: "As an intermediary on the labor market we can adapt to legislation and customer requirements, but customers and self-employed workers - our customers - are directly affected by the current situation. We stand up for the interests of our clients."

The SER recently suggested maintaining below the EUR 30-35 limit. Kolff: "An excellent limit, which gives the professionals above it - and the clients who hire them - peace of mind and room to do business. My appeal on behalf of clients and freelancers: continue the current limited enforcement until there is new, clear legislation from a new cabinet. And get on with it now; the market has been craving that clarity for years."

About HeadFirst Group
HeadFirst Group is a leading, international HR service provider and specialist in the professional organization of permanent and flexible labor. The organization offers a diversity of HR solutions: Managed Service Providing, Recruitment Process Outsourcing, intermediary services (matchmaking, contracting) and HR consultancy. An average of fifteen thousand professionals work daily for over four hundred clients in Europe, with which HeadFirst Group realizes an annual turnover of over 1.5 billion euros. The main brands of HeadFirst Group are the intermediaries HeadFirst, Between and Myler, MSP service provider Staffing Management Services and RPO and recruitment specialist Sterksen.

Note to editors
All outcomes of the study have been compiled into aninfographic.

Do you have any questions or comments in response to this press release? Feel free to contact Bart van der Geest, manager of marketing & communications at HeadFirst Group, reachable at 023 - 568 56 30 or bart.vandergeest@headfirst.nl.

In June 2016, HeadFirst's model agreement of HeadFirst approved by the Tax Office. It has now been reassessed and the Tax Office has once again extended its approval for a period of 5 years. Working according to HeadFirst's model agreement does not lead to a (fictitious) employment and therefore means that there is no obligation to pay payroll taxes.

How to proceed with the DBA law? This is a relevant but complicated question that people in The Hague don't immediately have the answer to either. Rutte III's plans to replace the DBA law have not provided the clarity and clarity that the market has been waiting for for quite some time. The self-employment declaration for the top of the market and the minimum rate for the bottom of the market - partly due to a critical internet consultation in the fall of 2019 - have been prematurely defeated. As a consequence, only the web module remains within the zzp dossier. What are the plans for this? And what has happened in recent months?

Web module the only tool remaining

In the sixth progress letter "Working as a self-employed person," outgoing Minister Koolmees announced that he would continue with his plans to develop the web module and roll it out as a pilot. On January 11, 2021, the pilot - which will last about six months - actually started. From then on, clients can fill out the online questionnaire on an anonymous basis to get more clarity on whether they may hire a self-employed person for a particular job. The pilot is intended as an information tool for clients of self-employed workers; they cannot derive any rights from the results during this phase.

What is the web module again?

The Webmodule Beoordeling Arbeidsrelatie (WBA) consists of about forty questions. About the assignment itself, not about the contractor. After completing the questionnaire, there are three possible outcomes:

1. It is possible to work outside employment. The web module results in a "principal's declaration.
2. Indication of employment. This means that there are several indications that the assignment cannot be performed by a self-employed person. The advice is to employ someone or redesign the assignment.
3. No judgment is possible. Based on the answers given, it is not clear whether work is outside employment or employment.

Criticism of web module

In recent months there has been criticism - from various quarters - of the content of the web module. The web module is said to steer too much towards being an employee and indicators of self-employment have been omitted or underexposed. Several MPs have distanced themselves from the web module in its current form. Research by knowledge platform ZiPconomy shows that few clients are enthusiastic about the web module either. Over 30% do not plan to use the web module and about 10% do not even know what the web module is. In addition, it appears that experts and judges come to different judgments when the web module cannot provide certainty.

New cabinet: plans for 2021

Next summer, the outcomes and results of the pilot phase will be evaluated. A new cabinet will then take a decision on the further course of the web module and whether the tool can possibly be converted into legislation. Furthermore, the new cabinet will try to have a broad public conversation with interested parties about possible regulatory bottlenecks. Due to the corona crisis, these talks have come to a standstill and for now there is little movement in them.

Enforcement regarding labor relations will be phased in. October 1, 2021, at the earliest. The Ministry of Social Affairs and Employment has promised to inform the market in a timely manner about decision-making and relevant developments.

Finally, negotiations and consultations are currently underway in The Hague to eventually arrive at a new cabinet. The exact plans regarding the replacement of the DBA law will be discussed at the formation tables. The parties seem unanimous that it is high time for change and reform, but in what way and at what pace; there are different views and opinions. The CDA, PvdA and GroenLinks still see the permanent contract as the norm. D66 wants to reduce the fiscal and social differences between employees and the self-employed and the VVD wants a separate legal status for the self-employed in order to clearly enforce false self-employment. So which plans a measures will eventually make it into the coalition agreement is still a gray area.

On November 16, 2020, the Minister of Social Affairs and Employment and the State Secretary of Finance - Taxation and Fiscal Service -, also on behalf of the State Secretary of Economic Affairs and Climate, informed the House of Representatives about the current state of affairs and the follow-up steps regarding the measures envisaged in the coalition agreement in the field of "self-employment.

The web module

This sixth progress letter provided an update on the status of the web module and the previously announced pilot. The government is developing this tool to give clients clarity and - where possible - certainty about the qualification of the employment relationship for payroll taxes. The pilot is expected to start on Jan. 11, 2021, and will last at least six months. Subsequently, the pilot will be evaluated in the summer of 2021 and a decision on a possible introduction will be made.

The objective of this pilot is to test in practice whether the web module is actually helpful for clients in clarifying the earth of the employment relationship and - if necessary - in shaping the employment relationship. The following outcomes are possible:

• Principal's declaration: the assignment may be performed outside employment (for example, by a self-employed person).
• Employment indication: there are strong indications of (fictitious) employment.
• No judgment possible: based on the answers given, it is not clear whether there is work outside employment or work in employment.

During the pilot phase, the above outcomes have no legal status. The pilot serves mainly as an information tool, so clients cannot derive any certainty from the outcome. In addition, a help desk will be set up for clients to ask additional questions. The help desk does not provide advice, but is intended to support the interpretation of questions and answers.

Supervision and enforcement

In the 2017 coalition agreement, "Confidence in the Future," the phasing out of the enforcement moratorium is linked to the introduction of new legislation that provides more clarity on the nature of the employment relationship. After the aforementioned pilot has ended, the Cabinet will decide at what point enforcement will be phased in. The earliest date will be October 21, 2021. This does not mean that the Tax and Customs Administration and the Inspectorate SZW will not conduct supervision (company visits, providing information and book audits). However, the Tax and Customs Administration can only enforce if there is malicious intent or if instructions are not followed within a reasonable period of time. Between October 1, 2019 and August 31, 2020, a total of 155 companies were investigated. Those visits revealed a great need for information on the applicable laws and regulations. In the "Progress Report on Supervision of Working Relationships," State Secretary Vijlbrief reported that no "malicious" client has yet been found.

Platform Work

In the previous progress letter, the Cabinet indicated that it was concerned about the position of platform workers and wanted to examine how their position could be strengthened. In the Cabinet's response to the report of the Commission for the Regulation of Work, it was indicated that the route initially investigated to realize this through the Law on the Allocation of Workers by Intermediaries (Waadi) was not an obvious one. In the coming months, the government will make a start with the elaboration of a legal presumption around platform work and will investigate whether such a legal presumption can indeed strengthen the legal position of platform workers in practice. The elaboration will be discussed with the European Commission in order to see whether a legal presumption that is tenable under European law can be achieved.

Disability insurance for the self-employed

In the pension agreement it was agreed that there will be a statutory insurance obligation against the risk of disability for the self-employed. The Cabinet intends to adopt the earlier advice of the social partners. Work is currently being done in cooperation with various parties on a feasible, explainable and affordable regulation. The Cabinet aims to share more information on the progress of this scheme with the outside world before the end of this year.

On June 15, 2020, the Minister of Social Affairs and Employment and the State Secretary of Finance - Taxation and Fiscal Service -, also on behalf of the State Secretary of Economic Affairs and Climate, informed the House of Representatives about the current state of affairs and follow-up steps regarding the measures envisaged in the coalition agreement in the field of "self-employment.

The minimum rate and self-employment statement are not further elaborated upon

In the progress letter, the relevant ministers announce that the cabinet has decided not to proceed with the draft legal texts for the minimum rate and the self-employed declaration. The elaboration of these draft legal texts appears to be a complex task. The various (implementation) tests, discussions with the field and responses to the Internet consultation have revealed a considerable number of bottlenecks. In addition, the Committee on Regulation of Work is also critical of the proposals. The chosen measures involve a large administrative burden, create a lot of ambiguity, lack support and are difficult to implement and enforce for the implementing and controlling authorities.

The cabinet further announces that it will enter into discussions with social partners and other parties to lay down agreements for the self-employed. In addition, the Cabinet wants to strengthen the labor market position of platform employees. Therefore, it is being examined whether the regulations for triangular relationships, such as intermediaries and employment agencies, can also be declared applicable to platforms. Finally, the Cabinet is working on a broader labor market agenda. This stems from the advice of the Committee on Employment Regulation.

Web module starts as a pilot

The web module is not yet ready, but the Cabinet aims to start the web module as a pilot this fall. With the web module, the Cabinet is developing a tool to give clients clarity on the fiscal, labor law and social insurance qualification of the employment relationship. The web module will provide three possible outcomes (client declaration, indication of employment, no judgment). These outcomes do not yet have legal status. In this pilot phase, clients cannot derive any certainty from the outcome. The web module only functions as an information tool to obtain clarity about the employment relationship.

After the pilot phase, a decision will be made about the further consequence of the web module. The Cabinet does aim to attach legal consequences to the client declaration when the web module is eventually introduced, so that a client can derive certainty from it. After the summer recess, the Cabinet will inform the House of Representatives about the further timetable and the start of the pilot.

Supervision of labor relations

The corona crisis has implications for the deployment of inspections, supervision by the Tax and Customs Administration and the method of inspection by the Inspectorate SZW. In any case, the enforcement moratorium has been extended until January 1, 2021. During this moratorium, the Tax and Customs Administration enforces if a client turns out to be malicious or if clients do not adjust their working methods within a reasonable period (usually up to 3 months) following instructions from the Tax and Customs Administration.

Furthermore, after the summer recess, the Palland motion calling for a six-monthly report on the implementation of the supervision of labor relations will be implemented. In the fall, the Cabinet will make a decision on further extensions of the moratorium.

Following two progress letters in 2018, Minister Koolmees again informed the House of Representatives June 24, 2019 about the progress around the replacement of the DBA Act. We summarize the most important developments for you.

Bottom of the market
For the bottom of the market, there will be a minimum rate of €16 for self-employed workers. This is an alternative to the mandatory employment contract for self-employed workers at the bottom of the labor market, which was found to be in conflict with European legislation. With this, the government achieves the same goal: preventing self-employed workers from being hired at too low a rate.

Upper end of the market
For the upper end of the market, there will be a self-employed person's declaration (until now called the opt-out), which will not only provide certainty in advance about payroll taxes and employee insurance, but also as far as possible about labor law consequences (e.g., continued payment of wages during illness), pension obligations, and collective bargaining provisions. This is a further implementation of the agreement in the coalition agreement on the opt-out.

The following conditions apply to use of the self-employment statement:
1. The assignment contract must state that the parties intend not to enter into an employment contract;
2. The contractor must be registered with the Chamber of Commerce;
3. The client and the contractor both sign the declaration of self-employment;
4. The labor remuneration is at least €75 per hour;
5. The agreement is entered into for a maximum of one year.

*** Assignment period of up to one year ***
The Cabinet considers it desirable to include the criterion of a maximum of one year, a period previously cited in the coalition agreement (2017), in order to prevent the self-employment declaration from being used by self-employed persons who perform work for a longer period of time.

Should the work last longer than a year, the declaration of self-employment will no longer apply to the period after that year. This does not mean that clients cannot hire self-employed workers for longer than one year, but in practice it will mean that clients seeking certainty will have to use the web module to request an opinion on a working relationship.

Web module and client declaration
The government is working on a web module, which, on the basis of the answers to a number of questions, can establish in advance that there is no employment relationship. In that case, the web module provides a so-called employer's declaration. This declaration gives the client advance certainty that no payroll tax needs to be withheld and remitted and no employee insurance premiums and income-related healthcare insurance contributions need to be paid. With the term "certainty in advance" comes a comment, which is described in the letter as follows: "The principal's declaration is valid insofar as the web module has been filled out truthfully and is used accordingly in practice." Enforcement on the latter will come when the legislation is finally in place.

*** Weighting of factors ***
The web module will be designed on the basis of legislation, practical cases and case law in the context of the qualification of the employment relationship. In order to keep the administrative burden low, the possibility of reducing the questionnaire as much as possible is being examined.

The University of Amsterdam has developed a legal database that provides insight into case law in the fields of labor law, taxation and social security from approximately the last ten years with respect to the classification of an employment relationship. The analysis of this database is used to arrive at a weighting of the individual questions: which element weighs(s) heavily in the qualification of the employment relationship.

Meanwhile, an (extensive) questionnaire has been distributed to 50,000 clients with a request to complete the questionnaire. On the basis of data analysis, it is being considered whether an algorithm can be developed that, through smart routing with as few questions as possible, arrives at a correct outcome.

The web module will be tested during the summer. After the summer, the House of Representatives will be informed about the results of this test phase.

*** Criterion 'regular business activity' to be dropped ***
Contrary to the coalition agreement, the cabinet proposes to drop the criterion 'regular business activity'. There is much resistance to this criterion among self-employed workers and clients. In particular, the fact that it is a new criterion that has not yet been fleshed out by case law, and that its meaning will continue to change over the years, raises the concern that it will generate a lot of discussion. This would thereby lead to more uncertainty and less clarity, which is undesirable for the Cabinet.

Another delay, enforcement moratorium extended
The Cabinet is currently working on legislation. The aim is to put this legislation out for Internet consultation in the third quarter of 2019. The legislation is scheduled to come into force in 2021, which was previously scheduled for January 1, 2020. In line with this, the enforcement moratorium has also been extended until at least January 1, 2021.

*** Enforcement on malicious intent difficult ***
During the enforcement moratorium, the Inland Revenue enforces malicious intent. In practice, however, it turns out to be very difficult to meet the heavy burden of proof for malice. Therefore, the possibilities for enforcement during the moratorium will be tightened: as of January 1, 2020, the Tax and Customs Administration will also be able to enforce when principals do not (or do not sufficiently) follow instructions from the Tax and Customs Administration - which it gives when it takes the position that the qualification of the employment relationship for payroll taxes is not in accordance with current legislation - within a reasonable period of time.

More information
Want to know everything about (the replacement of) the DBA Act? On this website you will always find the latest news. Also download the free white paper, where we have put together all the important information for you.

We are also here to advise and assist you. Want to speak with a HeadFirst advisor? Send an email to info@headfirst.nl or call 023-5685630.

After the start of the company visits in 2018, the Tax and Customs Administration has now visited 104 companies from different industries and checked for compliance with the DBA Act. On March 5, 2019, State Secretary of Finance Menno Snel shared his findings with the House of Representatives through a letter.

This shows that 45 companies have "sufficient knowledge and experience with the current zzp legislation (is) and the law is being applied correctly. In total, 59 organizations appear to be 'acting incorrectly to a greater or lesser extent' according to the Tax Office. A follow-up investigation is underway at 12 of these, because the inspectors suspect them of knowingly hiring self-employed workers through a sham construction. The big question now is: in which of these companies can the tax authorities prove that they are malicious?

Guidelines Handbook Payroll Taxes are confusing
The reason that 6 in 10 companies' actions regarding external hiring are questioned, according to the Tax Office, has to do with the following:

* There are indications of the presence of a relationship of authority, while according to the agreement used there would be no relationship of authority.
* Zzp'ers perform the same work and in the same way as own employees.
* There are core activities, the work involves an essential part of the business, which may be an indication of employment.
* No substitution of the self-employed person is possible or desirable, and there also appears to be authority.
* The self-employed person has no ability to independently schedule his work.
* The duration of the employment relationship is so long that the freelancer's work seems to be embedded in the organization.
* There seems to be fictitious employment.
* Work is not done in accordance with the model agreement.

The study thus puts into action the fact that the directive on assessing the employer-employee relationship is maintained as "valid policy. Indeed, all the elements mentioned above are part of it. The guideline was incorporated into the Tax Office's 'Payroll Tax Handbook' in December 2018. Hannah Dias, manager tax advice at BDO: "Uncertainty about the qualification of an employment relationship, which has not been completely removed even with the guideline assessing the relationship of authority, causes companies to be reluctant to hire self-employed workers. With all its consequences for zzp'ers, clients and thus the Dutch economy."

Multi-interpretable indicators is now market problem
Snel's report on the company visits comes on top of the directive assessing the employer-employee relationship. In an earlier post on employer-employee relations, Dias already stressed that the various factors named in the directive must always be considered in relation to each other and therefore leave room for interpretation. "It is not always clear what weight and relevance is attributed to each element and how these elements should be assessed in their interrelationship. In addition, some elements of the guideline are so ambiguous that it is difficult for practitioners to understand them and apply them correctly in their own specific situation. The actual situation is important here. Is it sufficiently clear what the assignment entails and under what circumstances it will be performed? And what value is placed on these various facts and circumstances?"

Malicious: yes or no?
The Tax and Customs Administration uses the results of the company visits as input for the supervisory and enforcement strategy to be developed. The aforementioned 59 organizations that are (potentially) acting improperly will be involved in this. "For them, partly on the basis of the Directive, the Tax and Customs Administration can take the position that there is a malicious situation. Once one of them is actually labeled as malicious, it is not the end of the story. In fact, a business can object to any additional tax assessment imposed, first to the Tax Office and, at a subsequent stage, to the courts. Both bodies will reassess the situation based on all the relevant facts and circumstances presented."

The long-running story called 'Wet DBA', got another new chapter in December 2018: the assessment of a relationship of authority. After the Cabinet sent the guideline to the House of Representatives in late November 2018, this memorandum was incorporated into the Tax and Customs Administration's 'Payroll Tax Handbook' on December 12, 2018. This gave it the status of "applicable policy. There is currently unease in the flexible labor market about how this proposal became policy without the intervention of the House of Representatives.

Hannah Dias, manager of tax advice at BDO, is surprised at these noises. "The policy is based in part on various rulings by judges who have addressed the issue of whether or not an employment relationship exists. It is a summary of already existing legislation and case law. In that respect, it is therefore not surprising that the House of Representatives is not familiar with it." She considers it a greater risk that the prevailing policy may cause a Principal to be classified as malicious more quickly. "This can be detrimental to organizations, as malicious parties may also be subject to retrospective taxation for the past. Since the publication, Principals can hide more difficult behind 'I didn't know,' because everyone can read in black and white what the Inland Revenue considers a relationship of authority."

Noise at 40 indicators
The cabinet promised to come up with a clarification of the definition by January 1, 2019. It succeeded in doing so through the previously described "directive on assessing the employer-employee relationship," but this has not provided the clarity the market craves. "For example, it is frustrating for organizations that the various factors indicating whether or not there is a relationship of authority must always be considered in relation to each other. That leaves room for interpretation," Dias said. She gives the following examples in this regard:

• Assessment using more than forty indicators is complex. Moreover, it is not immediately clear what weight and relevance is assigned to each element and how these elements should be assessed in relation to each other.
• Some elements of the directive are so ambiguous that only judges and other labor law specialists can understand and apply them correctly. Their role is important here. Do they ask questions properly? What (new) facts are ascertained? And what value is placed on facts? Because these are customized cases, a uniform outcome is not guaranteed.

Organizations create policies
Dias emphasizes that the best way for organizations to deal with this is to (re)establish a hiring policy. Some organizations take this further than others, based on different interpretations of signals reflected in public policy. "It is about organizations showing - in good faith - that the hiring process is well thought out and trying to implement laws and regulations in this process as well as possible. You do this on the one hand by identifying risks and securing them, on the other hand by minimizing the extent of risks as much as possible and, for substantiation, recording everything in a file." According to Dias, a review of paper and practice is the starting point here. "Stay in control, through a good policy on the one hand and a corresponding implementation in practice on the other," Dias said.

Working DBA-proof
Dias understands that this is not always easy and therefore recommends seeking help from a consultant. "Organizations are increasingly knocking on the door for an analysis and advice on the hiring policy. I guide, together with HeadFirst, trajectories to ask, for example, questions such as 'For which functions do I hire external workers?', 'When can an external worker perform an assignment as a zzp'er?' and 'Is it a matter of temporary replacement or is it a defined project with an agreed result?' central." She continues: "HeadFirst, together with the Client, has a signaling function to assess and ensure that an assignment - before and during execution - is suitable for an Independent Professional. In cases of doubt, HeadFirst keeps a close eye on the situation and we think along in detail about a better interpretation. It is important that clients are open about all relevant facts and circumstances. Of course Independent Professionals are also tested to make sure that they are characterized as real entrepreneurs."