BSG: “Freelance workers” are legally considered to be employees
Numerous “freelancers” of public service broadcasters are entitled to maternity protection lines. This is the indirect consequence of a judgment of the Federal Social Court (BSG) in Kassel (Az .: B 1 KR 31/16 R) announced on Tuesday, September 26, 2017. Supposedly "freelancers" for whom the public broadcaster pays social contributions are legally considered workers. As the BSG decided, the broadcasters must therefore also include their “freelancers” in the maternity allowance “U2”.
The Kassel judges thus confirmed the position of the Deutsche Rentenversicherung Bund. The latter had requested a total of almost EUR 200,000 from the Hessischer Rundfunk for the years 2006 to 2008.
The background to the surcharge is the obligation of the employer to continue paying the wages six weeks before and eight weeks after the birth during maternity protection and, if necessary, also during a pregnancy-related ban on employment. The companies are reimbursed from the U2.
Originally, the levy was only intended to secure women in small businesses, but from 2006 it was extended to all employers. This had previously been requested by the Federal Constitutional Court so that companies do not experience pregnancy-related disadvantages due to the employment of women. The U2 is also levied on men's earnings.
This now also applies to the supposedly free journalists on public radio. Such employment relationships are common there. Despite the “free” contract, the broadcasters pay social security contributions.
According to the Kassel judgment, it follows that it is an employee. Therefore, the broadcasters as employers would also have to participate in the U2.
The entitlement to maternity benefits results from the Maternity Protection Act and is therefore of a labor law nature. Claims for “freelance” journalists arise automatically from the fact that, according to the BSG, they are women. The health insurance companies would then be reimbursed for the corresponding services provided by the transmitters from the U2.
At least in part, freelance journalists already have collective bargaining rights to similar services, for example with Central German Broadcasting.
The BSG did not have to decide to what extent women can now make legal claims retrospectively. Since these are claims under labor law, there are probably collective bargaining deadlines or, alternatively, the general statutory limitation of three calendar years. mwo / fle