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Article Italy: Provisions on Self-Employed Workers and Flexible Work Schedules

(July 7, 2017) On June 6, 2017, new legislation for the protection of autonomous work and creation of a flexible work regime entered into effect in Italy. (Law No. 81 of May 22, 2017, Measures for the Protection of Non-Entreprenurial Autonomous Work and Measures to Encourage Flexible Adaptation as to Times and Places of Subordinate [i.e.,Non-Autonomous] Work (Law No. 81), GAZZETTA UFFICIALE (June 13, 2017), NORMATTIVA (in Italian).)

Expansion of Current Scope of Autonomous Work

The legislation amends several provisions of the Civil Code related to “autonomous work,” that is, work that a person performs for another party without the existence of a subordination relationship between them. (Codice Civile [Civil Code] (as updated June 19, 2017), ALTALEX.) One amendment excludes from the definition of autonomous workers entrepreneurs, including small entrepreneurs defined by the Civil Code as persons who carry out an economic activity mainly with their own labor and that of their families. (Id. art. 2083; Law No. 81, art. 1(1) & (2).) Another amendment extends certain benefits concerning permissibility of late payments to commercial transactions between autonomous workers and companies, public agencies, or other autonomous workers. (Law No. 81, art. 2(1).)

Public agencies must promote the participation of autonomous workers in public contracting opportunities for the provision of services or in recruitment calls for personal consulting or research services. (Id. art. 12(1).)

Abusive Clauses and Conduct

The new law defines as abusive contract clauses and conduct related to autonomous work those that:

  1. grant the party ordering the work or service unilateral power to amend contractual conditions or the right to withdraw from a contract of successive performance without prior notice (Law No. 81, art. 3 (1));
  2. involve an agreement by the parties to payment beyond 60 days from the date when the respective invoice is received by the party ordering the work or service or from the date of the request for payment (id.); or
  3. allow the party ordering the work or service to refuse to stipulate the contract in writing (id. art. 3(2)).

In all of these cases, autonomous workers have a right to sue for damages. (Id. art. 3(3).) The new law also recognizes autonomous workers’  intellectual property rights to their inventions made during the contract’s performance, unless the inventive activity has been established as the object of the employment contract, and the worker has been compensated for it. (Id. art. 4(1).)

Social Security and Tax Benefits and Record Referral

The law allows autonomous workers to deduct from their taxes expenses incurred for professional training and development purposes (e.g., post-graduate studies, attendance at conferences and seminars) with an annual maximum of €10,000 (about US$11,180). (Id. art. 9(1).)

Oversight and Employment Assistance

To oversee autonomous employment, the law creates a Technical Discussion Board on Autonomous Work under the Ministry of Labor and Social Policies. The new Board is charged with monitoring activities involving autonomous work at the national level. (Id. art. 17(1).)

Employment agencies and other businesses authorized to act as employment intermediaries are now permitted to create departments dedicated to autonomous work. (Id. art. 10(1).) Such departments are to maintain a database of requests for autonomous employment and information concerning the requirements and procedures to be followed by applicants for both public and private sector autonomous employment. (Id. art. 10(3).)

Pregnancy, Illness, and Accidents

Under the new legislation, events such as pregnancy, illness, and accidents affecting autonomous workers who perform their activities on a continuous basis at the request of the employer may not result in the termination of the work relationship. (Id. art. 14(1).) During such events, and at the worker’s request, the work relationship may be suspended for a maximum annual period of 150 days, except when the interests of the employer are contrary to that suspension, in which case there is no right to suspension. (Id.) The law allows for the substitution of other workers for those who are pregnant. (Id. art. 14(2).) In the case of serious illness or an accident that impedes the performance of activities for more than 60 days, the payment of social security contributions and insurance premiums is suspended for a period of up to two years. (Id. art. 14(3).)  During that period, the autonomous worker may pay the contributions and premiums under certain conditions established in the new legislation. (Id.)

Flexible Work

In order to increase competitiveness and facilitate the balance between the time devoted to work and to private life, the law promotes the flexible work regime, which is available to all workers, autonomous and non-autonomous, as a method for the provision of subordinated work, to be arranged through an agreement between the parties. (Id. art. 18(1).) Flexible work is to be pursued through the use of technological means, without specific schedule or workplace requirements, but within the limits on maximum daily and weekly work time established by other legislation and collective bargaining agreements. (Id.) All tax and other benefits already established for regular subordinated work apply equally to flexible work when the same activities are carried out. (Id. art. 18(4).) Workers under the flexible work scheme have a right to take advantage of opportunities for continuing education and for the certification of their employment qualifications in the same way as workers under the regular work regime. (Id. art. 20(1).)

Under the flexible work regime, employers maintain their right to control the performance of and exercise discipline over the worker. (Id. art. 21(1).) Employers must guarantee the health and safety of workers in the flexible work regime, providing workers with at least an annual information sheet referring to the general and specific risks associated with their activities, and workers must cooperate in the observance of preventative measures vis-à-vis such risks. (Id. art. 22(1) & (2).)

Flexible work employees have a right to obtain protection in case of workplace accidents and professional illnesses arising from risks connected with activities performed off-site for their employers. (Id. art. 23(2).) The same provision applies to accidents occurring during the commute to and from the workplace, including commutes to work away from the regular site. (Id. art. 23(3).)

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