Whether it is work-study or formal employment, why the agreed salary is not recognized, and whether an injury accident can be compensated, these issues frequently lead to disputes
Why are the rights and interests of summer work being "short of jins and liang?"
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Some college students take part-time jobs during the summer vacation, but due to the lack of labor contract protection and other reasons, the phenomenon of "shrinking" of rights and interests has occurred from time to time.
Lawyers remind that summer jobs are short-term labor or irregular labor services. Although they are not for employment purposes, they are still protected by the relevant laws of the Civil Code on employment relationships.
In the summer vacation of another year, many students choose to use this time to perceive the society in advance, enter the enterprise for internship or work part-time.
However, the phenomenon of "lack of jins and liang" occurs from time to time when rights and interests such as unpaid wages and no benefits are encountered.
Due to the lack of labor contracts, it is difficult to identify labor relations, and many summer workers face difficulties in protecting their rights.
How should the labor-employment relationship for summer workers be defined?
How should their remuneration be agreed and guaranteed?
How to protect rights due to work injury, illness, etc.?
With these questions in mind, the "Worker's Daily" reporter sorted out some typical cases and interviewed relevant legal professionals, hoping to provide timely answers for summer workers.
Focus 1: Do I count work-study or regular work?
The 22-year-old Chen Shuang chose to go to court with the company she worked for during the summer vacation. After the first trial, the second trial and the retrial, just to find out: Is she a part-time job-study or a formal job?
In September 2014, Chen Shuang entered a vocational and technical college in Wuhan. The schooling system is three years, and the graduation certificate can be obtained on June 30, 2017.
On June 20, 2016, Chen Shuang went to a hamburger restaurant to work in the back kitchen. The two parties agreed on a monthly salary of 1,990 yuan and no labor contract was signed.
In July 2016, Chen Shuang was injured in a traffic accident while delivering food for a hamburger restaurant.
In September of the same year, the burger shop paid Chen Shuang a total of 3,980 yuan for two months.
Chen Shuang sued the court, requesting confirmation that he had a de facto labor relationship with the burger shop.
During the trial, Chen Shuang believed that his basic studies had been completed, he was able to control his own time, and was not under the management of the school. He belonged to the employment of college students. He was not a student who used his spare time to work and study, but for long-term employment, not a summer temporary job. .
The Hubei Provincial Higher People's Court found in the civil ruling in the case that Chen Shuang's claim that he established an employment relationship with the burger restaurant for the purpose of long-term and stable employment has no evidence to prove it.
When Chen Shuang was working in a hamburger restaurant, there was still one year before graduation, and the time was during the summer vacation of the university, which was in line with the "Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China" (hereinafter referred to as the "Opinions") issued by the former Ministry of Labor. ) in the case of school students using part-time work-study assistance in their spare time as stipulated in Article 12.
Regarding the confirmation of labor relations, Tong Fengjiao, a partner of Shanghai Huiye Law Firm, said that one of the main features of labor relations is the subordination of identity.
Before the labor relationship is established, the laborer and the employer are on the basis of equality, voluntariness, and consensus through consultation, but after the labor relationship is established, the two parties have a subordinate relationship in terms of responsibilities.
"An important feature of summer jobs is student status. During school, they are managed by the school, obey the school's arrangements, and their main task is to complete their studies. Therefore, in essence, it is in conflict with the subordination of labor relations." Tong Fengjiao explained, according to the "Opinions" "Article 12 of the "School students who use their spare time to work and study is not regarded as employment. If a labor relationship has not been established, they may not sign a labor contract."
Tong Fengjiao also emphasized that summer work is a part of short-term labor or provision of irregular labor. Although it is not for employment, it is still protected by the relevant laws of the Civil Code on employment relations.
Focus 2: How to guarantee relevant remuneration packages?
The enterprise claimed that the worker was a summer worker, and did not sign a labor contract with it, and did not recognize the labor relationship.
On the grounds that there is a labor relationship between the two parties, the laborer requires the enterprise to pay the relevant treatment and sues the enterprise to the court.
In this case, Deng Chenjin graduated from high school in June 2016 and took the college entrance examination one year later. At the same time, he joined an electrician company in Guangdong on June 22 of the same year.
In the retrial, the company claimed that Deng Chenjin recognized his position as a summer worker, and did not show the company any certificates such as his academic qualifications or graduation certificate, which made the company mistakenly believe that he was a work-study student. relation.
The Guangdong Provincial High Court determined in the civil ruling that Deng Chenjin had graduated from high school when he joined the company on June 22, 2017, and was over 16 years old. The legal subject qualification requirements of the person.
After he joined the company, he accepted the labor management of the company, and the labor provided was part of the company's business. Therefore, the court of first and second instance confirmed that Deng Chenjin and the electrician company had labor between June 22, 2017 and July 5, 2017. relationship is not wrong.
Enterprises therefore need to pay relevant treatment.
Deng Chenjin's rights protection raises a question related to all summer jobs, that is, how should the salary and benefits of summer jobs be guaranteed?
Tong Fengjiao introduced that according to the current market practice, the salary of summer vacation workers is generally calculated by the hour. If there is no negotiation or the negotiation is unclear, you can refer to the hourly salary standards published by other commonly used summer vacation companies.
Tong Fengjiao reminds that if the hourly rate is agreed, then in the case of overtime, the overtime rate only needs to be calculated according to the hourly rate. If no written agreement is signed, it can be negotiated through chat records or recordings. The salary scale is fixed.
If you can sign a written agreement, be sure to clearly agree on the hourly pay and overtime pay standards in the written agreement.
Focus 3: Who is responsible for special circumstances such as injuries?
In 2021, Zhu Xiujian was introduced by a classmate to a water tourism and entertainment company in Jiangsu to work during the summer vacation. On July 2, when he was arranged by the company to debug an amusement project in the water park, the kayak was washed away by the water due to insufficient water pressure. When the road returned, the foot was scratched by the steel plate.
After the accident, Zhu Xiujian was sent to the hospital for treatment, where he stayed for 34 days and was diagnosed with a left foot avulsion injury.
Afterwards, it was determined by the Intermediate People's Court of Lianyungang City, Jiangsu Province that the Water Tourism and Entertainment Co., Ltd. compensated Zhu Xiujian for economic losses of 9,898.59 yuan, including medical expenses, meal subsidies, nutrition expenses, nursing expenses and transportation expenses.
Zhu Xiujian's claim for lost-time compensation is not supported because he was under the age of 16 at the time of the accident, and he was a student without a fixed job and income.
Zhu Xiujian's situation is not an isolated case.
Tong Fengjiao suggested that, whether it is a labor relationship or an employment relationship, if you are injured in the process of providing labor or labor services, you should take measures to retain evidence as soon as possible, especially if a written agreement is not signed, the two parties are more likely to have disputes.
"The measures to retain evidence mainly include calling the police and signing a record through the police inquiring about the injury process to prove the cause of the injury." Tong Fengjiao said, "Retain all medical bills including medical expenses, transportation expenses, accommodation expenses, food expenses, etc., and collect all information about salary payments. It is also necessary to restore the injury process through audio recordings or written certification with those present at the time of the injury as soon as possible.”
Tong Fengjiao also reminded that workers should urge employers to report work-related injuries to the social security department as soon as possible after they have signed a labor contract and paid social security.
In the employment relationship, negotiate with the company or individual employer on compensation matters in a timely manner. If an agreement cannot be reached, you should file a lawsuit with the court within one year from the date of injury to protect your legitimate rights and interests.
Pei Longxiang