Work in black: what it is and what are its risks
The term black work is often used in different contexts. We explain below what it is and what are its effects.
Work in black: what is it
Also known as working in B, and as the characteristic element of the so-called submerged economy, work in black means, in the case of an employment relationship (in which there is an employer and a worker) doing so without a record of it, it is say, without a written work contract, without the worker being registered with Social Security or withholding any percentage of their salary on account of the income tax of individuals (IRPF).
If we speak of a self-employed or self-employed worker, it means not registering in the census of economic activities, not enrolling in Social Security, and receiving payments without issuing invoices and without charging the value-added tax (VAT). Even if it is an Internet job, which is done from home, for example, the law requires compliance with these procedures.
Are there reasons to work in black?
The work in black seeks, in most cases, to hide the income and expenses, to avoid both the payment of different taxes (income tax and VAT, for example) and contributions to Social Security, either by employers as well as workers.
But it is also perhaps the only way that a foreigner who is in an irregular situation in Spain can do any work. In effect, if he lacks the corresponding residence and work authorization, an employer can not legally hire him, and if he does, he will be subject to sanctions, and of course he will not be able to enroll him in any Social Security scheme. Therefore, it is common for this type of workers to be forced to perform a job and collect in B.
The same applies in the case that the foreigner in an irregular situation would like to carry out activities on his own account, since he will not be able to register with the Treasury or the Social Security. I could only do it, although at the margin of the law, in black.
Work in black: consequences and risks for the worker
1- In the case of foreigners, regarding their immigration status:
If you do not have a residence and work permit, the consequences are practically the same, since the fact that you reside in Spain irregularly is causal to be fined or expelled, after the corresponding procedure. That also works without permission does not change or worsen the situation.
It is different if it is a foreigner with a stay visa, as is the case of a student, or of those who have a non-profit residence visa. In such cases, working without being authorized to do so may result in the revocation of the permit, and they would be in an irregular situation if they later stay in the country.
If you are a foreigner who has a work and residence permit and decides to work in black, you may have problems when renewing your permit. Indeed, as explained below, you can be fined by the Social Security and the tax authorities, and the breach of tax duties and social security is an element that the Office of Foreigners can take into account to deny renewals.
2-In the case of any worker, against Social Security:
In principle, if the employee is an employee, it is the employer who has to comply with the formal duties of enrolling him in the respective regime, as well as paying his share of the contribution and withholding the worker’s salary he has to contribute.
If, on the other hand, we speak of a self-employed worker, or self-employed, these obligations correspond directly to him, so he can be fined and also required to pay the contributions he has had to pay, with the respective interests.
3- In the case of any worker, in front of the treasury:
Since black work is a non-registered work, whose income is not reported to the tax administration, it is not complying with a series of formal duties (presentation of declarations) and substantial duties (payment of taxes due), which also imply imposition of fines and the collection of amounts that must have been paid as taxes, if applicable, with the respective interest.
Work in black: consequences and risks for the employer
In the case of the employer, he will also have responsibilities before the Social Security (fines and reimbursements), and may even incur a crime if the quotas left to enter exceed 50 thousand euros (article 307 of the Penal Code). At the same time, it would not fulfill its duties as a withholding agent against the tax administration. If, on the other hand, the hired worker is also a foreigner who did not have residence and work permits, it is considered a very serious infraction of the of the rules on Immigration, which brings the employer a fine of between 10 thousand to 100 thousand euros.
Work in black and worker’s helplessness
From the point of view of labor protection, employment in black is for the worker, although not theoretically but in practice (as corroborated by labor lawyers), a situation of defenselessness. Many times this mechanism is used to pay less than the legally established minimum wage, for example, or to violate rules on safety and hygiene at work, day, vacation, etc. In these cases it is more difficult (although not impossible) for the employee to prove the existence of the employment relationship and the agreed conditions.
Employment in black: residence and work permit for work placement
If there is a case of a non-registered employment relationship, that is, in black or B, in which the worker is a foreigner without a residence and work permit, and he / she can prove it, he / she is entitled to a residence and work permit. labor rootedness (article 124.1 of Royal Decree 557/2011, of April 20). To do this, you must obtain a judicial resolution that recognizes it or an administrative resolution confirming the act of infraction of the Labor and Social Security Inspectorate that accredits it. In other words, we are in this case in a case where reporting black work can be beneficial for the worker.