September 14, 2021
In addition to normal labor employment (full-time workers), common employment mode include part-time employment, internship of college students, reemployment after retirement, employment of special workers (such as early retirees, employees without pay, laid-off employees, employees who stop production and take long holidays), labor dispatch, labor outsourcing, secondment employment, shared employment, etc. We will elaborate on the differences between employment patterns and major risks of each pattern in this article.
1. What are the common employment patterns？
In addition to normal labor employment (full-time workers), common employment mode include part-time employment, internship of college students, reemployment after retirement, employment of special workers (such as early retirees, employees without pay, laid-off employees, employees who stop production and take long holidays), labor dispatch, labor outsourcing, secondment employment, shared employment, etc.
In addition to normal labor employment (full-time workers), common employment mode include part-time employment, internship of college students, reemployment after retirement, employment of special workers (such as early retirees, employees without pay, laid-off employees, employees who stop production and take long holidays), labor dispatch, labor outsourcing, secondment employment, shared employment, etc.
2. What is the main difference between common recruitment mode？
Special workers full-time, part-time labor, employment, such as personnel is retreated inside, leave the staff, waiting, the production of a long vacation personnel of come off sentry duty) is composed of labor relations, labor law and labor contract law and other relevant laws and regulations shall apply.
Student internship, hire retired, labor dispatch, service outsourcing, secondment, share of employment recruitment is generally not labor relationship (between employers and employees), used ordinary civil laws and regulations such as civil code, the main body of the two sides are equal.
Special workers full-time, part-time labor, employment, such as personnel is retreated inside, leave the staff, waiting, the production of a long vacation personnel of come off sentry duty) is composed of labor relations, labor law and labor contract law and other relevant laws and regulations shall apply.
Student internship, hire retired, labor dispatch, service outsourcing, secondment, share of employment recruitment is generally not labor relationship (between employers and employees), used ordinary civil laws and regulations such as civil code, the main body of the two sides are equal.
3. What are the risks of using student internships? How to prevent?
The main risk of student internship is that it is considered to constitute labor relations, especially when the post internship has work purpose, it is easy to be considered as labor relations; There is also the problem of unclear liability for casualties in the process of internship.
The main risk of student internship is that it is considered to constitute labor relations, especially when the post internship has work purpose, it is easy to be considered as labor relations; There is also the problem of unclear liability for casualties in the process of internship.
The main preventive measures are to sign a perfect tripartite agreement, retain student identity evidence and clarify the purpose of internship; Purchase employer's liability insurance.
4. What are the main risks of using retirees?
The main risk of using retired employees is that they are identified as constituting labor relations, and the liability for compensation is unclear in case of casualties. Due to the inconsistency of different laws and regulations and the different requirements of judicial decisions, from the perspective of risk management, when hiring retired employees, it is necessary to check the actual age of the employees and the certificates of enjoying retirement benefits, such as retirement certificates, and retain the evidence. It is recommended to purchase employer's liability insurance.
The main risk of using retired employees is that they are identified as constituting labor relations, and the liability for compensation is unclear in case of casualties. Due to the inconsistency of different laws and regulations and the different requirements of judicial decisions, from the perspective of risk management, when hiring retired employees, it is necessary to check the actual age of the employees and the certificates of enjoying retirement benefits, such as retirement certificates, and retain the evidence. It is recommended to purchase employer's liability insurance.
5. What are the main risks of employing special workers (such as early retirees, those who stay without pay, those who are laid off and waiting for work, and those who stop production and take long holidays)?
The main risk is that there is no labor contracts with these special workers, because the special workers have labor relations with their former units, and the social security is generally paid by the former units. Because it is a problem left over by history, the judicial interpretation of the supreme court believes that if an employment dispute occurs between the special workers and the new units, it should be handled according to the labor relations. Therefore, the use of these special workers needs to go through relevant procedures according to regular employees, sign labor contracts, and clarify the reasons why they cannot pay social security. They can purchase industrial injury insurance or employer liability insurance separately.
The main risk is that there is no labor contracts with these special workers, because the special workers have labor relations with their former units, and the social security is generally paid by the former units. Because it is a problem left over by history, the judicial interpretation of the supreme court believes that if an employment dispute occurs between the special workers and the new units, it should be handled according to the labor relations. Therefore, the use of these special workers needs to go through relevant procedures according to regular employees, sign labor contracts, and clarify the reasons why they cannot pay social security. They can purchase industrial injury insurance or employer liability insurance separately.
6. What are the main risks of using part-time workers? How to prevent?
The main risk of using part-time workers is that they are considered full-time workers, because part-time workers have strict working hours, that is, the average working hours per day do not exceed four hours and the cumulative working hours per week do not exceed 24 hours. Once the limit is exceeded, it is easy to be considered as a full-time worker.
The main risk of using part-time workers is that they are considered full-time workers, because part-time workers have strict working hours, that is, the average working hours per day do not exceed four hours and the cumulative working hours per week do not exceed 24 hours. Once the limit is exceeded, it is easy to be considered as a full-time worker.
Therefore, for the use of part-time working hours, it is recommended to sign a written agreement (although it is not mandatory to sign a written agreement in law), clarify the working time requirements, agree on the salary cycle meeting the requirements, and implement the implementation of working time requirements.
7. What are the main risks of labor dispatch mode? How to prevent?
Labor dispatch refers to a form of employment in which the labor dispatch agency signs a labor contract with the dispatched workers, sends the workers to other employing units, and then the employing units pay a service fee to the dispatch agency. Labor relations are formed between labor dispatch agencies and dispatched workers, and labor relations are formed between labor dispatch agencies and employing units. The main risk of labor dispatch is that the dispatch does not meet the requirements, and even is considered to constitute labor relations. For example, the labor dispatch company does not have a labor dispatch certificate, the dispatched posts do not meet the "three characteristics" requirements, and the number of dispatched personnel exceeds the legal proportion.
Labor dispatch refers to a form of employment in which the labor dispatch agency signs a labor contract with the dispatched workers, sends the workers to other employing units, and then the employing units pay a service fee to the dispatch agency. Labor relations are formed between labor dispatch agencies and dispatched workers, and labor relations are formed between labor dispatch agencies and employing units. The main risk of labor dispatch is that the dispatch does not meet the requirements, and even is considered to constitute labor relations. For example, the labor dispatch company does not have a labor dispatch certificate, the dispatched posts do not meet the "three characteristics" requirements, and the number of dispatched personnel exceeds the legal proportion.
In terms of risk control, we need to select a formal and strong labor dispatch company, meet the three requirements on posts, and control the proportion of dispatched employees.
8. What are the main risks of labor outsourcing? How to prevent?
Labor outsourcing is a form of employment in which some non core businesses of the enterprise are completed by a third party through outsourcing, so as to integrate and utilize internal and external specialized resources, reduce costs, improve efficiency and give full play to the core advantages of the enterprise. Labor outsourcing belongs to the contracting relationship, which greatly reduces the labor cost of enterprises, but there is a trend of abuse. The main risk is that it is considered as fake outsourcing, real dispatch and even labor relations.
Labor outsourcing is a form of employment in which some non core businesses of the enterprise are completed by a third party through outsourcing, so as to integrate and utilize internal and external specialized resources, reduce costs, improve efficiency and give full play to the core advantages of the enterprise. Labor outsourcing belongs to the contracting relationship, which greatly reduces the labor cost of enterprises, but there is a trend of abuse. The main risk is that it is considered as fake outsourcing, real dispatch and even labor relations.
In terms of risk management, we should first sign a perfect labor outsourcing agreement to avoid confusion with labor dispatch (see point 9 for details). If working on the employer's site, the contractor is required to set up on-site management posts and assign special personnel to manage the outsourcing personnel. The employer does not participate in direct management, and production tools should not be directly provided by the employer.
9. What is the difference between labor dispatch and labor outsourcing?
Distinguish from the following aspects:
Distinguish from the following aspects:
1) Form and content of agreement / Contract:
whether the agreement between both parties is an outsourcing agreement, such as contracting, contracting, product outsourcing, etc. You can't just look at the title, it depends on the content. Outsourcing contracts are generally settled according to the labor unit price determined in advance and the workload completed by the labor outsourcing unit. The subject matter of the contract is generally "matter". The labor dispatch agreement generally settles the expenses according to the agreed number of dispatched personnel according to the dispatch time and expense standard. They apply different laws, such as labor contract law for labor dispatch and civil code for labor outsourcing.
a. If the contractor has a labor dispatch license, it shall be handled according to the dispatch relationship;
b. If the contractor has no labor dispatch license, but has signed a labor contract with the employee, it is generally not considered to constitute a labor relationship.
c. If the contractor neither has a labor dispatch license or business license, nor signs a labor contract with the employees, the employer and the employees are likely to form a labor relationship.
whether the agreement between both parties is an outsourcing agreement, such as contracting, contracting, product outsourcing, etc. You can't just look at the title, it depends on the content. Outsourcing contracts are generally settled according to the labor unit price determined in advance and the workload completed by the labor outsourcing unit. The subject matter of the contract is generally "matter". The labor dispatch agreement generally settles the expenses according to the agreed number of dispatched personnel according to the dispatch time and expense standard. They apply different laws, such as labor contract law for labor dispatch and civil code for labor outsourcing.
a. If the contractor has a labor dispatch license, it shall be handled according to the dispatch relationship;
b. If the contractor has no labor dispatch license, but has signed a labor contract with the employee, it is generally not considered to constitute a labor relationship.
c. If the contractor neither has a labor dispatch license or business license, nor signs a labor contract with the employees, the employer and the employees are likely to form a labor relationship.
2) Subject qualification:
Whether the contractor complies with Article 7 of The Notice on Printing and Distributing Supporting Guidelines for Enterprise Internal Control (CK [2010] No. 11 Enterprise Internal Control Application Guidelines No. 13 - Business Outsourcing); If the contractor is a human resources company, see whether the business scope in its business license has outsourcing business; Some industries, such as the construction industry, have qualification requirements for contractors. If the employer sends business to unqualified contractors, it will bear joint and several liability.
Whether the contractor complies with Article 7 of The Notice on Printing and Distributing Supporting Guidelines for Enterprise Internal Control (CK [2010] No. 11 Enterprise Internal Control Application Guidelines No. 13 - Business Outsourcing); If the contractor is a human resources company, see whether the business scope in its business license has outsourcing business; Some industries, such as the construction industry, have qualification requirements for contractors. If the employer sends business to unqualified contractors, it will bear joint and several liability.
3) Employer's involvement in employment management:
Whether it constitutes direct employment management: it is judged as fake outsourcing if it meets the direct employment management; It often needs to be considered in combination with the contents of the agreement Article 118 of The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (V) (Draft for Comments) stipulates: "if an employer contracts part of its business or functional work to other employers, both parties can be recognized as a labor dispatch relationship if there are the following circumstances:
Whether it constitutes direct employment management: it is judged as fake outsourcing if it meets the direct employment management; It often needs to be considered in combination with the contents of the agreement Article 118 of The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (V) (Draft for Comments) stipulates: "if an employer contracts part of its business or functional work to other employers, both parties can be recognized as a labor dispatch relationship if there are the following circumstances:
a. The working hours and workplace are determined or controlled by the employer
b. Production tools and raw materials shall be provided by the employer
c. The production and business scope of the contractor has nothing to do with the contracted business
d. Other circumstances that conform to the characteristics of labor dispatch. " Although the judicial interpretation is only a draft for comments, it is still a tendentious opinion in controversial cases.
Article 36 of the labor contract regulations of Jiangsu Province, ... Where an enterprise contracts its business to other units, but the workers of the contracting unit use the facilities and equipment of the enterprise at the production and business premises of the enterprise, provide labor according to the arrangement of the enterprise, or provide labor in the name of the enterprise, and other services called labor outsourcing are actually labor dispatch, The number of workers shall be included in the calculation of the proportion specified in the preceding paragraph.
4) Payment subject of labor remuneration:
The payment subject of labor remuneration does not meet the requirements. If the employer pays remuneration directly or on behalf of the employer, it is easy to be regarded as fake outsourcing.
The payment subject of labor remuneration does not meet the requirements. If the employer pays remuneration directly or on behalf of the employer, it is easy to be regarded as fake outsourcing.
5) Settlement method of contracting expenses:
The management expenses of labor dispatch shall be settled according to the number of labor force; The labor outsourcing contract shall be settled according to the workload and work quality; For labor outsourcing, the payment time and amount of service fees shall be measured by the completion of work tasks, rather than the number of service personnel provided by outsourcing service providers and the working hours of service personnel. If the settlement method does not meet the outsourcing requirements, it is also easy to be considered as fake outsourcing.
The management expenses of labor dispatch shall be settled according to the number of labor force; The labor outsourcing contract shall be settled according to the workload and work quality; For labor outsourcing, the payment time and amount of service fees shall be measured by the completion of work tasks, rather than the number of service personnel provided by outsourcing service providers and the working hours of service personnel. If the settlement method does not meet the outsourcing requirements, it is also easy to be considered as fake outsourcing.
10．What are the main risks of borrowing workers? How to prevent?
Secondment labor relationship refers to the legal relationship formed by an employing unit through secondment or labor service agreement, which seconds workers to another employing unit within a certain period of time and accepts the instructions and management of the unit. The secondment relationship involves three parties: the lending unit, the employing unit and the worker. Usually, the three parties sign a secondment contract, and the lending unit, the employing unit and the worker clarify their responsibilities and obligations through the secondment contract. The lending unit is seconded to the borrowing unit to engage in labor with the consent of the laborer. The borrower does not establish a labor relationship with the borrowing unit, but is under the management of the borrowing unit and completes the work or labor tasks dominated by the borrowing unit during the secondment period. The borrower and the lending unit continue to have labor relations. When the secondment contract expires, the seconded employee returns to the lending unit to continue to perform the labor contract with the lending unit.
The mode of secondment employment is more common in national organs, institutions or social organizations. In order to solve the shortage of staffing, they borrow personnel from subordinate units or other units, or exist in business guidance, technical guidance exchange among enterprises, personnel exchange within enterprise groups, ensuring key construction and expanding the scope of undertakings. Its behavior is usually short-term, temporary and non recurring, and the seconded unit and seconded personnel do not take this as the business purpose.
The main risk of borrowing and transferring workers is considered to be labor dispatch. In terms of risk control, the selected lender should have its own industry, not the dispatch business as the main business. Secondment is usually based on personnel interaction or adjustment, usually not for the purpose of obtaining economic benefits. Secondment generally occurs between affiliated enterprises. In a broad sense, the current popular employee sharing model also belongs to an expansion of the secondment relationship. For details of employee sharing model, you can click here and refer to Technical Article Sharing - FAQ About <Notice on Doing a Good Job in Shared Employment Guidance and Services>.
Secondment labor relationship refers to the legal relationship formed by an employing unit through secondment or labor service agreement, which seconds workers to another employing unit within a certain period of time and accepts the instructions and management of the unit. The secondment relationship involves three parties: the lending unit, the employing unit and the worker. Usually, the three parties sign a secondment contract, and the lending unit, the employing unit and the worker clarify their responsibilities and obligations through the secondment contract. The lending unit is seconded to the borrowing unit to engage in labor with the consent of the laborer. The borrower does not establish a labor relationship with the borrowing unit, but is under the management of the borrowing unit and completes the work or labor tasks dominated by the borrowing unit during the secondment period. The borrower and the lending unit continue to have labor relations. When the secondment contract expires, the seconded employee returns to the lending unit to continue to perform the labor contract with the lending unit.
The mode of secondment employment is more common in national organs, institutions or social organizations. In order to solve the shortage of staffing, they borrow personnel from subordinate units or other units, or exist in business guidance, technical guidance exchange among enterprises, personnel exchange within enterprise groups, ensuring key construction and expanding the scope of undertakings. Its behavior is usually short-term, temporary and non recurring, and the seconded unit and seconded personnel do not take this as the business purpose.
The main risk of borrowing and transferring workers is considered to be labor dispatch. In terms of risk control, the selected lender should have its own industry, not the dispatch business as the main business. Secondment is usually based on personnel interaction or adjustment, usually not for the purpose of obtaining economic benefits. Secondment generally occurs between affiliated enterprises. In a broad sense, the current popular employee sharing model also belongs to an expansion of the secondment relationship. For details of employee sharing model, you can click here and refer to Technical Article Sharing - FAQ About <Notice on Doing a Good Job in Shared Employment Guidance and Services>.
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