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During the internship period, students in school have low bargaining power and are in a disadvantaged position.
Since the internship in the strict sense is a teaching activity, no labor relationship can be established between the parties.
This means that currently interns are not protected by laws and regulations such as labor laws.
In order to reduce labor costs, some companies use interns as cheap labor.
So, how should interns protect their rights?
With the launch of the spring recruitment, Wang Ru (pseudonym), who is a junior in the Chinese Department of an ordinary college in Xiamen, Fujian, has begun to worry about the summer internship.
For the majority of college students, internship is a necessary link to improve the quality of employability.
However, in order to reduce labor costs, some companies use interns as cheap labor, and the rights and interests of students during internships are violated from time to time.
So, how should interns protect their rights?
Fraudulent intermediary fee in the name of recommending an internship
"I don't have much experience in clubs, and I have zero internship experience. I plan to find a job after graduation. Now I have to prepare." Wang Ru signed up for an online job training course.
The job-hunting course consultant told her that, for a certain fee, she could provide services such as revising her resume to ensure that she could obtain internship opportunities through "internal referrals".
Depending on the position and company, the fee ranges from 10,000 to 20,000 yuan.
The reporter's investigation found that there are not a few projects that carry out "internal push" internships and remote internships for college students, which are clearly marked by various intermediary agencies.
In January of this year, among the 2021 anti-fraud cases publicly reported by Tencent, there was a case in which internal employees cooperated with external job-hunting agencies to make illegal profits.
After recruiting an intern by an external intermediary, the employee used the identity of a Tencent employee to arrange for the intern to conduct a false remote internship, and received part of the fees paid by the intern candidate from the intermediary.
The employee has been fired.
At the same time, the employee was transferred to the public security organ for suspected crime.
Lawyer Gong Lier, a senior partner of Shanghai Dabang Law Firm, told reporters that during the internship period, students in the school have low bargaining power and are in a weak position.
The illegal use of school students in the name of interns has been repeatedly banned. The reason is that enterprises, schools, and intermediaries can form a chain of interest transmission and make profits from it. Among them, the rights and interests are damaged by students who have not yet entered the society.
Some experts have suggested that the main reason for the damage to the rights and interests of interns is that the legal definition and protection of students' internship status is not clear, but directly modifying the labor law and work-related injury insurance regulations will destroy the labor law system.
So, how to guarantee the "unidentified" interns in the system?
Acting in the name of an internship
The "Opinions on Strengthening and Regulating Internship Management in Ordinary Undergraduate Colleges and Universities" issued by the Ministry of Education in 2019 pointed out that "internships are one of the important links in practical teaching in colleges and universities". Can interns and internship units establish labor relations?
Professor Shen Jianfeng, Dean of the Law School of the China Institute of Labor Relations, told reporters that since internships in the strict sense are teaching activities, not market activities aimed at providing labor, labor relations cannot be established between the parties.
This means that at present, interns are not protected by laws and regulations such as the labor law, cannot establish labor relations with employers, and do not need to sign labor contracts.
The fact that an intern has "no identity" does not mean that an enterprise can use the name of an intern to act as an actual employee and infringe on its rights and interests.
A verdict recently disclosed by the Judgment Documents Network revealed that the rights and interests of interns were violated.
In this case, Li Mou, a post-90s girl, was dismissed after working for 9 months without paying a penny without signing a labor contract with Pacific Securities Company.
Li sued Pacific Securities Company to the court, but the company argued that Li was an "intern" and had never recruited the other party.
According to the facts found in the court trial, Li graduated in February 2018 and was not a college student.
However, Pacific Securities Company employed workers in the name of interns and refused to pay wages.
In the end, the court of first instance found that there was a labor relationship between the two parties, and ordered Pacific Securities to compensate Li for a total of more than 200,000 yuan in wages and compensation.
Shen Jianfeng said that if it is not a labor relationship, it does not necessarily mean that the provisions of the labor law cannot be applied. Since such "fake internships", which are called internships are actually employees, have certain similarities with labor relations, the theoretical and practical development in recent years is to advocate based on internships. Due to the particularity of the interns and the need for the protection of interns, some provisions on labor protection are applied to interns.
Special legal norms may be formulated in the future
Not only the practice of students in ordinary colleges and universities needs to be regulated, some vocational schools, in the process of arranging student internships, organize students to work on the production line of enterprises in the name of internships, arrange overtime and night shifts, compulsory internships, fee-based internships, and internship majors are not. Problems such as counterparts also occur from time to time.
In January this year, the Ministry of Education and other 8 departments jointly issued the "Regulations on the Management of Student Internships in Vocational Schools" (hereinafter referred to as the "Regulations"), aiming at the compulsory internships in the current vocational school students' internships, simple repetitive labor unrelated to professional learning, violations Issues such as the legitimate rights and interests of students, further delineate "red lines", and clarified the processing regulations in a targeted manner.
Shen Jianfeng said that as the problems of other students' internships in ordinary colleges and universities have gradually become prominent, it is necessary to introduce unified regulations on internship management, and at the same time make special regulations for different types of students' internships.
"In the future, when conditions are ripe, special legal norms can also be formulated for the protection of interns or the norms for internships."
In addition, there is a view that strengthening the supervision of schools and enterprises, and strengthening the supervision and restriction of this special employment relationship by the labor security department are also the keys to curbing the chaos of internships.
Shen Jianfeng said that the "Regulations" designed special safeguard measures to promote the development of internships, and these measures are conducive to promoting enterprises to carry out internships in accordance with regulations.
"For enterprises, when using interns, they must pay attention to the fact that internship is a teaching and educating activity, not a market-oriented employment phenomenon. Fake internships should not be arranged for the purpose of using cheap labor, and relevant regulations should be strictly observed. Regulations, standardize the signing of internship agreements, and purchase necessary commercial insurance for interns.”
Yu Linge