Many times, we tend to get confused when we are dealing with an employer-employee employment relationship and when facing a business relationship where a person provides their professional services.

It is important to be able to differentiate its elements, since, in the event of a possible conflict, what is going to prevail is the principle of the reality contract.

The elements that indicate that you are in front of a Labor Contract are:

• Personal provision of the service: that is, exclusivity, which implies that the person who is hired must provide the services for which he/she was hired, and personally, to be in a working relationship, the person who is hired must be physical.
• Salary: the person hired receives a sum of money repeatedly (monthly, biweekly, per week, etc.) for the work that he/she performs for the person who hired him/her.
• Subordination: there will be a hierarchical relationship in an employment contract between the worker and the employer, which can be a natural or legal person, who must be held accountable, this implies that the employer has a general power of attorney of direction with respect to the work carried out by the hired person and everything related to the company.

It is important to indicate that subordination includes that the worker can be given specific instructions which he must abide by; orders, circulars on the way in which he must carry out his functions, the place, the time, as long as complying with what is established by national labor laws on issues such as hours, wages, etc.

Contract for professional services

Unlike the first characteristic element in an employment relationship, in a contract for professional services, the person hired cannot be required to only work for us, since the person hired for professional services will charge per hour for the service or product that entrusts you, also leaving out a constant remuneration for the same amount and in the long term, apart from the fact that the person who offers us professional services, must carry out their own billing and is not insured by the person who hired them.

Finally, the subordination element, is also totally outside in a contract for professional services, since the person hired, performs it within the hours they want without being subject to specific control and schedule, they simply must meet a deadline or date on which it is agreed to deliver the agreed upon, and the mistakes made will be at your own expense.

Principle of the primacy of reality in the contract.

In any employment relationship, the dynamics of the relationship that the subjects have will truly prevail, that is, the person may have signed a contract for professional services, but if the 3 characteristic elements of an employment relationship are present in a very evident way, or one of them, could be in front of an employment contract, regardless of what has been signed on paper.

It is for this reason that the characteristic elements of a labor relationship must be taken into account and advised in the best way when making a contract, whether for professional or work services.

At ERP Lawyers we have a specialized team that will provide the advice that your business or company requires. Contact us we will gladly assist you.