The €38 Rule: What this means for clients hiring freelancers

A new Dutch law will strengthen the position of lower-paid freelancers seeking recognition as employees. From 31 December 2026, they will be able to invoke an hourly-rate-based legal presumption of an employment contract.  

Once a worker invokes the presumption, the client must demonstrate that the relationship does not constitute employment. If the client cannot rebut it, the worker can claim the protections associated with employee status, including sick pay and dismissal protection. 

For clients, the practical significance is the change in the evidential position. Clients engaging lower-paid freelancers will need to be able to substantiate why their arrangements qualify as independent work. 

Government and parliamentary explanations refer to €38 per hour, using 1 January 2026 as the reference date. However, the legislation provides for indexation, so that figure should always be read alongside its reference date. 

The published Act contains a base amount of €36, provides for adjustment in line with the statutory minimum-wage mechanism and requires the first applicable amount to be established by ministerial regulation. Its wording also covers remuneration at or below the applicable threshold, rather than only remuneration strictly below it. 

Clients should therefore check the formally applicable amount when assessing an assignment. The widely used €38 figure is useful for preparation, but it should not be treated as a permanent statutory boundary. 

The presumption is rebuttable. It changes who must substantiate the legal position; it does not replace the underlying assessment of whether an employment contract exists. 

The government’s parliamentary explanation confirms that the substantive assessment continues under Article 7:610 of the Dutch Civil Code. A worker invokes the presumption, after which the client can present evidence that the arrangement constitutes independent work. 

That evidence needs to address the actual relationship. Relevant circumstances include how work and working hours are organised, organisational integration, personal performance obligations, remuneration, commercial risk and entrepreneurship. The Supreme Court’s Deliveroo judgment requires these circumstances to be considered together. 

A service agreement describing someone as a freelancer is therefore only part of the picture. Its terms need to correspond with how the assignment operates. 

A rate above the threshold does not establish independent status. It means that this particular hourly-rate presumption is unavailable; a worker may still argue that the relationship is an employment contract under the ordinary legal framework. 

For example, a higher-paid professional may still work within a client’s management structure and under its authority. Conversely, a lower-paid freelancer may operate independently, although the client could face the burden of rebutting the presumption if it is invoked. 

The government expressly explains that the measure leaves the substantive classification rules unchanged. The rate affects the evidential position rather than creating a separate category of legally approved freelance assignments.

Agreeing a fixed-price price for an assignment does not necessarily prevent an hourly-rate assessment. 

The explanatory memorandum describes calculating the remuneration attributable to labour by deducting directly attributable assignment costs from the agreed price and relating the remainder to the relevant working hours. Those hours can include preparation directly connected with the assignment. General business overheads are treated differently from assignment-specific costs. 

Consider an illustrative assignment priced at €900, with €100 in directly attributable material costs and 25 relevant working hours. On those assumptions, the labour remuneration would be €800, equivalent to €32 per hour. 

The example shows why the invoice total alone may be insufficient. Clear records of the agreed price, relevant costs and time spent can help the parties explain the calculation. 

The presumption operates in civil law between the worker and the engaging party. The government explains that it does not directly extend to tax or social-security enforcement: the Dutch Tax Administration retains its own duty to investigate the relationship. 

The legislation also excludes an engaging party who is a natural person acting outside a trade or profession. This exclusion concerns the new presumption; it should not be interpreted as a general exclusion from employment law.

The hourly-rate presumption and the proposed Zelfstandigenwet are separate measures. 

The presumption originated in the VBAR (Wet Verduidelijking Beoordeling Arbeidsrelaties en Rechtsvermoeden). After the government removed VBAR’s proposed clarification of employment status, it retained the hourly-rate measure and pursued the Zelfstandigenwet separately. 

The Zelfstandigenwet remains a proposal intended to create a safe harbour through tests of entrepreneurship and independence within an assignment. Its consultation closes on 29 October 2026, and the government is targeting January 2028 for implementation. Clients should therefore prepare for the December 2026 presumption independently of that later legislative process.

Clients should identify assignments with an hourly rate below the €38 threshold and review whether their records substantiate independent working. 

Fixed-price engagements also deserve attention where the effective remuneration per hour may be below the €38 threshold.  

The practical value of using Zooly is that the plaform requires additional approval when the hourly rate is below the €38 threshold, before an assignment can be activated. For fixed-price agreements, it is advised to require timesheets being recorded by the freelancer, so the platform can warn the client on time when the €38 threshold is approached.