3. How to Structure an Independent Contractor Relationship
a. How to Properly Document the Relationship
Performance of work on the basis of a civil law contract is not governed by labour law regulations, which has already been mentioned many times. That is why regulations describing the way of documenting the employment relationship do not apply to civil law contracts.
In the first place, it is not necessary to open and keep the employee's personal file in a civil relationship. Such files are a peculiar set of documents appearing only in the employment relationship, and collecting data regarding an employee outside this relationship is inadmissible in view of the Personal Data Protection Law.
In a civil relationship, it is also not necessary to record the employee's working time, since neither daily nor weekly working time limits apply to such an employee. An employee employed on the basis of the contract of mandate or a contract for a specific task enjoys a relatively large flexibility of performing work, at least from the theoretical point of view. Of course, there is nothing to prevent the parties from specifically indicating in the contract what working time limits will apply to the employee. The employer also has the full right to document the working time of employees performing work on the basis of civil law contracts, if only for accounting purposes. However, this will only apply to the employer's internal documentation and only for the employer's use.
During the whole period of the civil relationship on the basis of which the employee performs work, and until claims that could arise from this relationship fall under the statute of limitation, the employer should keep the original document or a certified copy of the concluded contract for evidence purposes. Although evidence from hearing witnesses or the parties is admissible in proceedings before a civil court, a document, as long as its credibility is not questioned, has a definitely stronger legal validity than testimony. Besides, especially if the parties fixed numerous detailed provisions of the contract, differing from regulations that are standard in the given relationship, proving such provisions before the court can be extremely difficult without a written contract.
b. Day-to-Day Management of the Relationship
As a general rule, elements specific for the employment cannot be included in other contractual relationship to the extent making mentioned relationship basically equivalent to the one of employment, only named differently. That being said, contracts basing on performing certain tasks in a specific place cannot be supervised to the full extent. This does not mean however that some level of supervision, expressly stated in provisions of law cannot be enforced. This point of view is applicable for both contract of mandate and contract for a specific task.
Contract for a specific task consists in creation of a specified good by a contractor. It is obvious that mentioned good has great (personal if not economical) value for a person initiating relationship for creation of a specific task. Often, deadline set by parties for a completion of a good has value equal to the value of the good itself, e.g. when specified good is to be used only once for a very special occasion. It is vital for a person initiating performing a specific task to have a control over the process of performing itself. Otherwise, this party would not be able to substitute this specific good with another one, created by other performer. This clearly shows how important is the institution of supervision in a contract for a specific task. However, having in mind what was said about the prohibition of creating a contract of employment under a different name, it is vital to state what rules of managing the concluded relationship, are created by provisions of law.
Firstly, polish civil code provides the party ordering the specific task with possibility to renounce the contract in case of the contractor being in such a delay with completion of the contract that it is highly implausible for him to fulfil his part of obligation on time. Secondly, the ordering party can demand change of way in which the task is performed if it is improper to a large extent. What is more, cooperation between parties is essential also for the proper completion of task and under certain circumstances can become a justified reason for dissolution of a contract. Powers mentioned above cannot be executed without constant and actual management of the relationship binding the parties- such conclusion is devoured from reasoning implying that duties arising from provisions of law must be accompanied by powers that make them possible to be fulfilled (the reasoning from the goal to the measures).
When it comes to the contract of mandate, provisions of law expressly provide the Principal with possibility to be informed about the process of executing the contract. As a general rule, such informational duty burdens the Contractor only to such an extent that is justified by the nature of a contract. Completion of one part of obligation and beginning of subsequent steps should be notified to the Principal. It is done in order to provide him with information necessary to assess if the Contractor is fit to fulfil obligations entrusted to him and further existence of the contract retains its economically justified character to the Principal.
