Hiring Without Worry

Your Project Safe within the DBA Act

Because the DBA law will be enforced again from January 1, 2025, there is a growing reluctance to hire ZZP'ers. Fortunately, in my case, the risk of problems with the tax authorities is virtually eliminated.

The DBA Act is intended to combat false self-employment. This involves people who are employed as ZZP'er but should actually be working as an employee. Think for example of meal deliverymen who only work for 1 company, who are forced to bear the risk of entrepreneurship for little money. There has already been a court ruling on this in the case of the Deliveroo judgment. With this, the Supreme Court has ruled what criteria are important in determining whether there is employment.

I will briefly discuss per point why this does not apply in my case. In particular, I base this on this article (PDF) by ZZP Nederland.

The presence of a relationship of authority

This is the case when the contractor is forced to follow instructions in the way the work is done, can be intervened immediately if this is not done, cannot determine his/her own hours and has to use the client's materials.

In almost all cases, we will agree on what needs to be done, but I will make my own proposal on how I will handle it and in what way. If I deliver something on which a modification is needed I will make it myself in consultation. We discuss my capacity in advance but I determine my own hours (so I will try to meet at least the discussed capacity but the hours I work I determine myself). Of course I use my own equipment to work on.

This is by far the most important criterion and in this there is clearly no salaried employment.

Nature and duration of work

There is employment if someone performs the same work over a longer period of time (several years, or indefinitely), at fixed times. In addition, hiring specific expertise is also an indication that it is not salaried.

I work almost exclusively on a project basis. This usually involves a period of a few months followed by occasional maintenance work or short periods when functionality needs to be added.

Hiring specific expertise also applies here.

Embedded work

This looks at whether you as a contractor are part of the client's organization. Important here is that you do not do the same type of work as employees, use your own resources and have the freedom to work with multiple clients.

If, for example, you commission a project from a digital agency that also employs its own developers and that project is carried out at the agency's office using its on-site computers, then there could be embeddedness. However, I am tied to 1 project for a certain period of time and I work from my own office and use my own resources. If you yourself are a private individual or self-employed person as a client then it is not possible to have people working for you as an employee so you don't have to worry anyway.

Setting conditions, how pay is determined and the amount of pay

If there is salaried employment, the employer sets the terms and conditions, the pay is not tied to an outcome and the amount of pay is lower.

Once again, there is no question of salaried employment since I determine my (relatively high) hourly rate myself. I am generally paid by the hour to provide as much flexibility as possible, but it is definitely result-related. In general, I only send an invoice when I have delivered at least part of the project and give substantial discounts when I feel that the cost to the client is not in proportion to the result (for example, when something, in my opinion, has taken too long to realize).

Commercial risk and behaving as an entrepreneur

It looks at whether the contractor behaves as an entrepreneur and bears all the risks associated with that himself.

At the time of writing I have been active as a ZZP for 16 years and in that time have never been employed (not even part-time). In doing so, I operate my own website and am responsible for acquiring clients and generating income. During that time I have provided work to numerous clients, almost always on a project basis.

Model agreement

In most cases it will be obvious that there is no question of employment. If as a client you still want more certainty, then it is expected that, before the enforcement of the DBA takes effect in early 2025, the tax authorities will make a model agreement for ICT work available. By jointly signing and applying this, there can no longer be any doubt vis-à-vis the tax authorities.