Freelance work: social security aspects

Rolf Lindenmann

Orlando Rabaglio

Case 1: Delimitation of gainful employment - inactivity

1. facts of the case

A. has been working as President of the Board of Trustees of Foundation B since January 2010. She is also a part-time judge. Since 2008 (divorce), A. has been affiliated to the compensation fund as a non-employed person.
A. objects to the qualification as a non-employed person.

Question

Is a lawyer with an annual salary of CHF 9,000 and a 50% job considered gainfully employed or not gainfully employed?

Case 2: Mediation in a network / management consultancy

1. facts of the case

A. AG provides consultancy services as well as franchise services in the field of management consultancy. It concluded an agreement with B for the purpose of cooperation in management consultancy. A. AG is a member of the SVA ZH, B was admitted as an SE by the AK Bern.

In the course of an employer audit at A. AG, the compensation paid to B was qualified as the relevant salary.

The Social Security Court ZH protects the order.

The A. AG lodges an appeal in matters of public law.

Question(s)

Why are such triangular relationships problematic under social security law?
What criteria must be met for A to qualify as B's employer?

Case 3: Community advisor as SE

1. facts of the case

S runs an office for building law issues under the name of company X. He has been affiliated to the SVA ZH as an SE since 2000. He performed work for the municipality Y at an hourly rate of CHF 150 (interim head of the building and environment department). The function diagram, the organisation of the municipality, working hours etc. applied.

In the context of an employer audit, the compensation paid to S was qualified as the relevant salary.

S's appeal to the Social Insurance Court was dismissed. S appeals to the Federal Supreme Court.

Question(s)

What does it take to subsequently reclassify a freelance activity, which has been properly settled with the compensation fund, as a dependent activity from the perspective of the client's compensation fund?

Case 4: Use of a limited liability company for service provision

1. facts of the case

L works at X. AG (chemical-pharmaceutical company) as a technical manager.

L founded Y. GmbH (consultancy in the chemical-pharmaceutical industry). He held a share of CHF 19,000 in the company capital, his brother CHF 1,000.

L continued to work almost exclusively for X. AG (84 % turnover with X. AG).

L used the credit card provided by X. AG to settle the large amount of professional travel expenses incurred.

The previous salary of CHF 8,000/month went to Y. GmbH. L received CHF 4,000 per month from Y. GmbH CHF 4,000 per month.

The court of first instance upheld AK TI's back-payment order.

X. AG and L appeal to the Federal Supreme Court.

Question(s)

Does the OASI practise legal entity penetration?
Under what circumstances is a pass-through (transparent view)
possible?

Case 5: Status decision - procedure - reversal

1. facts of the case

Psychotherapist (secondary profession) rents an institute for 2 days.

It provides services for its own account and invoices itself.

She is also mentioned on the Institute's website (member of the clinical team).

The letterhead of the invoices also contains the head of the institute; collection via own account

Professional participation "as far as possible" envisaged and desired, quality assurance, joint findings

Question(s)

How relevant is the catalogue of criteria for distinguishing self-employed from employed activity for the Federal Supreme Court?
How does a cantonal court handle the delimitation problem?
What are the consequences of a declaratory ruling on status confirmed after 4 1⁄2 years?
Could P have done her job better in order to be registered as a self-employed person?