De Facto Employment Contracts in Colombia: What They Are and How to Claim Your Rights
You've been a 'contractor' for two years, but your boss tells you when to show up. That's not a services agreement.
This is a situation we see week after week at Consejurídico: someone signs a services agreement, invoices as an independent contractor, but in practice works fixed hours, receives direct instructions, uses company equipment, and cannot refuse assigned tasks. When the relationship ends—sometimes without notice and without any severance—that person realizes they have spent years working without the rights that Colombian law had recognized in their favor from day one.
This has a legal name: a de facto employment contract (contrato realidad). Understanding how it works can mean the difference between receiving full severance pay and walking away with nothing.
What is a de facto employment contract (contrato realidad)?
The principle of the primacy of reality (principio de primacía de la realidad)—enshrined in Article 53 of the Colombian Constitution and developed through the Substantive Labor Code (Código Sustantivo del Trabajo)—establishes a simple but powerful rule: what matters is not the document you signed, but what actually took place in practice.
If the facts demonstrate that the three elements of an employment relationship were present, the law recognizes that relationship as such, regardless of what the company chose to call the contract:
- Personal performance of the service: you are the one doing the work—you cannot delegate it to someone else.
- Remuneration: you receive periodic payment for that work.
- Subordination: the company gives you instructions, controls your schedule, imposes procedures, or requires you to be in a specific place.
This last element—subordination—is what carries the most weight before a labor judge. It is not enough that you are paid and personally perform the work; what transforms a relationship into an employment contract is that the employer has the power to direct how, when, and where you work.
When does this apply in practice?
The de facto employment contract doctrine does not apply exclusively in the private sector. The most common cases we handle include:
- Independent contractors at private companies who, in practice, perform functions identical to those of permanent employees.
- Associated work cooperatives (cooperativas de trabajo asociado) used to avoid a direct employment relationship.
- State contractors (services agreements with public entities) where real subordination exists—though special rules apply here and the case law of the Consejo de Estado (Colombia's highest administrative court) has its own nuances.
- Digital platforms, a front that has gained significant traction in Colombia in recent years and where the debate over subordination remains very active.
The Corte Suprema de Justicia (Colombia's Supreme Court of Justice)—Labor Cassation Chamber—has repeatedly held in numerous decisions that once subordination is proven, the legal presumption of an employment contract operates in the worker's favor (Article 24 of the CST). In other words, it is the employer's burden to prove that no employment relationship existed—not the worker's burden to prove that one did.
What rights can be claimed?
If a de facto employment contract is declared, the worker would be entitled to claim, from the actual start date of the relationship, everything a formal employee would have received:
- Statutory minimum wage, if the agreed amount was lower.
- Statutory employment benefits (prestaciones sociales): severance pay (cesantías), interest on severance pay, service bonus (prima de servicios), and vacation pay.
- Social security: enrollment and payment of contributions to health, pension, and occupational risk insurance.
- Severance indemnification for termination without just cause, where applicable.
In some cases—where the employer deliberately acted in bad faith by using the services agreement structure solely to evade labor obligations—additional claims may arise that even touch on the sanctions sphere. This is where an integrated approach matters: at Consejurídico, our labor, civil, and corporate practices operate under one roof, allowing us to review the full picture without you having to search for another attorney if the matter becomes more complex.
The most costly mistake: waiting until the contract ends
Many people contact us only after the relationship has ended and the company refuses to pay severance. The problem is that waiting has real consequences: labor claims are subject to a statute of limitations (Article 488 of the CST; the general limitation period is three years), and every month that passes may mean losing part of what could have been claimed.
But there is something even more pressing: those who have spent years without pension contributions are accumulating a retirement gap that is very difficult to close later on. A poorly handled de facto employment situation is not just a problem for today—it is a problem that makes itself felt at retirement age. #protegetupension
The most common mistakes we see in these cases:
- Signing a release and discharge (paz y salvo) without understanding that it may be interpreted as a waiver of future claims.
- Failing to preserve evidence: emails, WhatsApp messages containing instructions, attendance records, submitted reports—all of this is potential evidentiary material.
- Assuming that the services agreement settles the matter entirely, when the law says precisely the opposite.
Practical steps if you believe you have a de facto employment contract
- Gather evidence of subordination: screenshots of chats with instructions, corporate emails, attendance records, internal policies you were required to follow.
- Calculate the actual duration of the relationship: from the very first day you began working, not from the date of the most recent signed contract.
- Do not sign anything the company presents as a settlement or release without seeking legal advice first.
- Consult a labor attorney before the deadlines start working against you—the exact time limits depend on the circumstances of your case, and we can clarify them for you in a full consultation.
Act before time decides for you
The de facto employment contract (contrato realidad) is one of the most powerful tools that Colombian labor law provides to protect those who work under arrangements that disguise the true nature of the relationship. But that power depends on using it in time and with the right evidence.
If, while reading this article, you recognized your own situation—or that of someone close to you—the first step does not have to be costly or time-consuming. Juri, Consejurídico's digital legal assistant, provides real, immediate initial guidance with no appointment and no commitment. Share your situation and start understanding what you may be entitled to claim. #QueremosAcompañarte
El asistente jurídico digital de Jurídiconline analiza tu situación específica. La revisión inicial es gratuita.
