Programmer in home work is subject to social insurance!

Dependent employees are subject to social security contributions. This also applies to home workers, even if their job requires a higher qualification, as in the case of a programmer. This was decided by the 8th Senate of the Hessian State Social Court.

A civil engineer and programmer was employed by a structural analysis software company from 1989 to 1992. He was responsible for the maintenance and further development of the software distributed by the company. Because of his move, he quit and then worked for the company as a freelancer in a home office until 2013. When this was to be dissolved, the programmer was not given any more orders. The programmer sued in the labor court. He took the view that he was an employee. In any case, however, he was to be regarded as a home worker. In the last instance, the Federal Labor Court found that although there was no employment relationship between the company and the programmer, there was a home office relationship.

As early as the end of 2013, the programmer had also applied to the German Pension Insurance Fund for a determination of his status under social insurance law. The pension insurance company determined that he had been employed by the company and was subject to compulsory social insurance. The company took legal action against this before the Social Court. In view of the Federal Labor Court’s ruling, the court denied the existence of a dependent employment relationship. Moreover, the fact that the programmer had worked as a homeworker did not constitute a social security obligation. The programmer appealed against this decision.

Home workers are employees and therefore subject to social security contributions

The Hessian State Social Court now ruled that the programmer had been liable for social insurance as a home worker. Home workers are persons who work in their own workplace on behalf of and for the account of traders, non-profit enterprises or public-law corporations. The homeworkers are employees in accordance with the social legislation and, as such, are also subject to social insurance contributions. This also applies to activities that require a higher qualification.

Accordingly, the programmer was to be regarded as a home worker subject to social insurance contributions. He had worked for the same company for 21 years and had granted it the sole right to use and distribute the programs he had developed. On the other hand, he had not been active for the general sales market. The fact that he had used his own PC was not relevant in view of the duration of the contractual relationship.
In addition, the company had covered training costs and paid for the time spent on training.

The appeal was not admitted.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.