Rethinking Retail Staffing Part 2

Why Retailers Struggle with the DBA Act

Dutch retailers have long relied on flexible staffing to cover peak periods and skill gaps, but since the DBA Act (Wet Deregulering Beoordeling Arbeidsrelaties) came into force, many are facing uncertainty.

The DBA Act was introduced to clarify whether freelance workers (zzp’ers) are truly self-employed versus or employees in disguise. It wasn’t designed to stamp out self-employment completely, but fear of non-compliance has led some organizations to avoid hiring freelancers.

In this second part of our Rethinking Retail Staffing Series, we explore why this uncertainty persists, how false self-employment is assessed, and why Retail roles in particular trigger compliance concerns.

What Is the DBA Act?

The DBA Act came into effect in 2016 as a replacement for the VAR (Verklaring Arbeidsrelatie) declaration system. It was meant to give employers and freelancers a framework to evaluate their working relationship.

Under the DBA Act, clients and freelancers must assess whether a work arrangement truly reflects self-employment or is, in fact, an employment relationship that should be subject to payroll taxes and social security contributions.

Why Was the DBA Act Introduced?

Tax compliance is often cited as the primary motivation behind the DBA Act, but the legislation was also driven by broader concerns about the structure and fairness of the Dutch labour market.

Some argue that self-employment masks situations where workers are economically dependent on a single client while lacking basic protections such as sick pay, dismissal protection, or pension accrual.

Trade unions and several political parties have also stated that widespread use of freelancers for structurally employed roles weakens the labor market on the whole. From this perspective, encouraging more formal employment relationships would create more stability and preserve social security funding.

The are also concerns that the growing number of registered zzp’ers presents unfair competition and unequal terms of employment.

The End of the Moratorium

For several years after its introduction, the Dutch Tax Authority applied an enforcement moratorium. This meant they were not actively monitoring company-freelancer relationships unless there were clear signs of non-compliance.

The moratorium ended on January 1,2025. Companies can now be subjected to paying retroactive payroll taxes if a freelance engagement is assessed as employment.

IIf the false self-employment is deemed unintentional, taxes may be backdated to January 1, 2025; if deemed intentional, the tax authorities may look to collect taxes dating further back in the individual’s engagement with the organization.

From 2026 , fines can be imposed if clients fail to demonstrate that they have taken appropriate actions to avoid false self-employment.

The end of the moratorium is what many organizations find unsettling. Rather than a vague legal standard, there is now active risk of additional tax liability if employment status is misclassified.

How Does the DBA Act Define Employment?

To determine the nature of a work relationship, Dutch law looks at how the work is carried out in practice, not just what name it’s given in a contract. Authorities examine whether the contractor genuinely has autonomy, bears economic risk, and can operate an independent business, or whether the arrangement resembles traditional employment.

The main questions used to assess the working relationship are:

• Can the employee set their own hours or does the client determine the schedule?
• Does the client determine how the work is carried out?
• Is the engagement of a duration that resembles an employment contract?
• Does the freelancer carry out the same work as employees of the organization?
• Are the tasks performed a structural part of the organization, such as teaching at a school?
• Does the client permit the freelancer to subcontract or must they personally perform the work?
• Is their pay similar to that of employees that perform similar work?
• Is their pay agreed on in advance, are they paid per hour or per month, and is their pay transferred at a fixed time?
• Does the freelancer bear commercial risk or does the client bear the costs if the work isn’t performed properly?

No single factor is decisive. The overall picture – and how work is actually performed day-to-day – determines the classification. Signing a model contract (modelovereenkomst) guarantees nothing if the practical working relationship doesn’t match it.

How About The Vbar Act?

The VBAR Act (Wet verduidelijking beoordeling arbeidsrelaties) was proposed in 2025 to address ongoing criticism that the DBA Act failed to provide sufficient clarity. The central aim of the VBAR Act is to codify assessment criteria more explicitly, reducing the reliance on case-by-case interpretation..

One proposal within the VBAR Act is to introduce a presumption of employment when a freelancer’s hourly rate falls below a specified threshold (if it was in effect now, that would be €37 per hour). Below this level, the client would have to demonstrate genuine self-employment.

Supporters argue that this protects lower-paid workers from being classified as independent contractors in name only. However, critics argue that hourly thresholds oversimplify reality. Many freelancers price strategically, bundle services, or trade higher autonomy for lower rates. As such, opponents contend that the VBAR Act risks excluding legitimate freelancers while still failing to resolve ambiguity for higher-paid independent professionals.

An alternative proposal (the Self-Employment Act) Zelfstandigenwet, has been put forward to protect genuine entrepreneurs.

The Deliveroo Case

The case of Deliveroo illustrates how Dutch courts assess false self-employment in practice. Deliveroo started operating in the Netherlands in 2015, initially engaging riders on temporary employment contracts. From 2018 onwards, the company transitioned riders to self-employed status

The trade union, FNV, initiated a mass claim, arguing that riders’ working relationship amounted to employment. On March 24, 2023, the Dutch Supreme Court ruled that Deliveroo riders were in fact employees.

In its judgment, the Supreme Court emphasized that no single criterion is decisive when determining employment status. While riders were free to choose when they worked and could appoint substitutes, the court found that substitution occurred only occasionally and therefore carried limited weight in the overall assessment.

In contrast, other factors consistently pointed toward an employment relationship. Riders were paid wages, operated under a relationship of authority, and performed work that was structurally embedded in Deliveroo’s core business.

Together, these elements outweighed the formal freedoms described in the contracts, leading the court to conclude that the riders’ work should be classified as employment rather than self-employment.

Why Are Retailers Especially Vulnerable to Compliance Violations?

Retail roles often resemble traditional employment in ways that trigger compliance concerns under the DBA Act.

Consider a store hiring a part-time cashier for the holidays and calling them a freelancer. If the store sets their shifts, dictates exactly how they help customers, provides a uniform, and expects them on the premises during business hours, these features look very much like an employment relationship, even if the agreement calls the worker a freelancer.

Perhaps a clothing retailer brings in a freelance visual merchandiser. If the store specifies exactly how displays must be created and pays hourly with no clear evidence of entrepreneurial risk or multiple clients, authorities may consider it an employment relationship.

For these reasons, what might seem like a flexible temporary arrangement looks like an employment relationship under Dutch regulatory criteria.

Operational Consequences

The uncertainty makes decision-makers hesitant to hire at all. Engaging freelancers feels risky, while creating permanent roles reduces flexibility and increases fixed costs. As a result, companies delay staffing decisions, avoid scaling teams when demand rises, and become less responsive operationally.

Some retailers also worry that workers that value flexibility may turn to gigs in other sectors, leaving retail with fewer contributors.

Mitigating The Risks of Violating the DBA Act

There are some concrete steps retailers can take to reduce the risk of compliance violations – and continue benefiting from a flexible workforce supported by freelancers. The next article in the series will explore this in depth.

For now, keep in mind

• Document working practices properly
• Use Model contracts
• Encourage workers to document their engagements with other clients as well
• Ensure transparency

Dedicated freelance platforms that integrate with workforce management software can also help. Our partner Temper, is one such platform – and they have implemented specific limits to prevent false self-employment.

For example, freelancers can’t work more than 660 hours per year with one client, and the majority have engagements with multiple clients. In 10 years, none of Temper’s freelancers have been classified as falsely self-employed.

Conclusion

With enforcement of the DBA Act now active, uncertainty has become a genuine risk. Proposed legislation attempts to clarify the requirements but in the meantime, assessment is on a case-by-case basis and considers the nature of the work freelancers perform.
The case of Deliveroo shows how the courts assess the bigger picture; having one or two factors in place that indicate self-employment isn’t necessarily enough to convince them.

Despite the confusion, the DBA Act hasn’t eliminated the possibility of flexible hiring. Instead, it has introduced new requirements for how that flexibility must be structured. Documented practices are key, and solutions like Temper can help.

To learn more about MANUS WFM or Temper, contact us today.