Why the Dutch opting-in construction is not a shield against misclassification

Opting-in was formally incorporated into Dutch tax law in 1997 and later broadened in 2001. Its purpose is practical: some people perform paid work without being employees, while at the same time not performing that work as entrepreneurs. Their income may instead qualify as result from other activities (resultaat uit overige werkzaamheden, or ROW).  

Opting-in allows these people and their Clients to choose payroll-tax treatment without converting the relationship into an employment contract. The Belastingdienst form expressly requires that the worker is not an employee and does not perform the work as an entrepreneur.  

The construction has therefore been used in several very different situations. 

Sex workers. In January 2009, a specific opting-in framework with a voorwaardenpakket was introduced for the sex-work sector following years of disputes about the employment status of sex workers. Under this framework, operators withhold and remit taxes, while the conditions are intended to preserve significant autonomy for sex workers regarding how and when they work. Government evaluations also identified reduced tax administration for sex workers as one of its practical advantages.  

Municipal council members. Council members are not employees of the municipality, but they can jointly opt with the municipality for fictitious employment for payroll-tax purposes. The municipality then withholds wage tax from their remuneration.  

Clergy and pastors. Ministers who are not employees or entrepreneurs may also fall into this intermediate tax position. The Protestant Church in the Netherlands expressly recognises opting-in as an available option in certain circumstances.  

Other pseudo-employees. Contractors, project-based workers and other individuals can potentially use opting-in where their relationship is neither genuine employment nor entrepreneurship. The official payroll-tax handbook calls this category pseudo-employees.  

These examples illustrate the original function of opting-in: providing a practical payroll-tax solution for work that sits outside both employment and entrepreneurship.

There is no reliable national figure showing exactly how many people use opting-in. 

The potential population includes people earning ROW income and other pseudo-freelancers whose activities do not qualify as entrepreneurship. CBS reported approximately 85,000 “other self-employed” people in 2023 whose main income came from self-employment, although this category cannot be treated as the number of people eligible for opting-in.  

The actual population is difficult to quantify because opting-in is a tax treatment of individual working relationships, rather than a separate labour-market status. 

The fundamental concept has remained stable, while its scope and administration have evolved. 

1997 — statutory introduction. Dutch law formally allowed certain non-employment relationships to be treated as employment for wage-tax purposes. 

2001 — broader application. The requirement for a lasting working relationship was removed and the procedure was simplified, making opting-in more relevant to people whose income would otherwise constitute ROW.  

2009 — sex-work sector framework. A specific voorwaardenpakket incorporating opting-in was introduced for sex workers working through operators. The framework sought to clarify tax treatment while establishing conditions concerning independence, payments, taxation and administration.  

2025 — renewed classification relevance. Stronger enforcement against false self-employment increased the practical importance of separating fiscal treatment from the actual legal status of the working relationship. 

2027 — proposed administrative simplification. The pending Fiscale verzamelwet 2027 proposes replacing the requirement to submit the opting-in declaration with an obligation to retain a written, dated and signed declaration in the payroll records. The bill remains before Parliament and is scheduled for legislative consideration on 29 September 2026.  

Opting-in is also a distinctly Dutch construction. Other European jurisdictions may use payroll, umbrella or intermediary models, but these do not reproduce the same voluntary Dutch fiscal mechanism.

The basic requirement is that the person performing the work is neither an employee nor acting as an entrepreneur. 

The worker and the party responsible for payroll-tax withholding jointly choose to treat the relationship as fictitious employment for wage-tax purposes. The Dutch term for the party responsible for withholding is inhoudingsplichtige. Depending on the structure, this may be the Client itself or the payroll function may be performed through an administration office. 

The administration office may handle invoicing, tax deductions and payments. This administrative and fiscal function does not automatically make the administration office the employer under employment law.  

Opting-in also does not create normal employee protections. The Belastingdienst expressly states that opting-in does not itself create employee-insurance coverage or employment-law consequences such as dismissal protection.  

Because opting-in and employment classification answer different questions. 

Opting-in determines how remuneration is treated for tax purposes. 

Employment law determines what the working relationship actually is. 

The opting-in rules themselves reflect this distinction: they are intended for relationships that are not already employment. If the factual relationship satisfies the requirements of an employment contract, choosing opting-in cannot override that conclusion. 

In ECLI:NL:RBROT:2023:12118, a professional performed work for a co-operative while Verloning.nl handled invoicing and payroll administration. 

The Rotterdam District Court concluded that the company was not the worker's employer. Its role was essentially administrative. 

However, the court separately examined the organisation for which the professional actually worked and found that the factual relationship satisfied the characteristics of employment. The Client was therefore considered the employer.  

The case shows that using an administration office does not automatically move employment responsibility away from the organisation receiving and directing the work.

Yes. 

In ECLI:NL:GHARL:2023:786, a contact-tracing worker had signed a Verloning.nl framework agreement and an opting-in declaration and received payslips through the administration structure. 

The Court of Appeal nevertheless examined the factual relationship with the Client. The worker had no business registration, had not negotiated her rate or contractual structure, worked within the Client's organisation, was monitored in performing the work and carried no meaningful entrepreneurial risk. 

The Court considered it sufficiently likely that an employment contract existed with the Client, despite the opting-in construction.  

The same broader principle appeared in the Deliveroo litigation, where the involvement of an administration structure did not prevent the courts from examining whether employment existed directly between riders and Deliveroo.  

An administration office can change who handles payroll administration. It cannot change who is legally the employer when the facts point to employment. 

Zooly's current model is designed around relationships between Clients and genuine Freelancers operating as independent businesses. 

The opting-in construction concerns a fundamentally different category: individuals who are not employees but who are also not operating as independent businesses. 

For that reason, opting-in does not form part of Zooly's current core Freelance Management model.  

More importantly, if an opting-in construction is used, it should never be regarded as protection against misclassification. The legal status of the working relationship must still be assessed independently. 

• Opting-in is fiscal, not classificatory: it determines payroll-tax treatment, not employment status.  

• It serves a specific intermediate group: people who are neither employees nor genuine entrepreneurs.  

• Its uses extend beyond freelance work: examples include sex workers, municipal council members and certain clergy.  

• Administration offices are not automatically employers: their function may remain limited to payroll and administration.  

• The Client can still be the employer: courts examine how the work is actually organised and performed.  

• Documents cannot override reality: an opting-in declaration or payroll structure cannot prevent reclassification.  

• The construction is specifically Dutch: comparable European models operate on different legal foundations.  

• For Zooly, genuine Freelancers remain distinct from opted-in pseudo-employees.  

Opting-in can organise taxation. It is no shield against misclassification. 

The information provided in this article is for general informational and educational purposes only and does not constitute legal, tax, or employment advice. Labor and classification regulations (such as the Dutch Wet DBA and EU directives) are highly complex, fact-specific, and subject to frequent changes and changing administrative policies. Reading this content does not create an attorney-client or advisory relationship with Zooly. Before making any decisions regarding contractor engagement, compliance frameworks, or classification policies, you should always consult a qualified local employment lawyer or tax professional. Zooly accepts no liability for any actions taken or decisions made based on the information provided on our website. 

In compliance with Article 50 of the EU AI Act, we disclose that artificial intelligence (AI) tools were utilized to assist in compiling, legal screening, and drafting this content. However, to ensure absolute legal precision and contextual accuracy regarding compliance topics, the final text has undergone full human editorial review and rigorous manual verification by the Zooly compliance team before publication.