Guozhi says: What are the risks to avoid when working on a side job during breaks?

Text/Hua Zhuoma

　　On social media, topics about side hustles are frequently searched, and cases of people being squeezed out or laid off because of their side hustles also appear from time to time.

So, is it legal to engage in a side job, and is it reasonable to be laid off from a job during the break?

When engaging in side business, how to determine the ownership of works?

How to avoid risks in side hustle?

Is it legal to have a side job?

　　Feeding pets door-to-door, running self-media, driving online ride-hailing... In the past two years, more and more people have started side jobs for multiple reasons such as increasing income, preparing for a second track, and finding a career they like.

　　Lawyer Hu Gaochong, the senior partner and director of the Labor and Personnel Law Professional Committee of Zhonglun Wende Law Firm, told China News Service Guoshi Express that there are two main bases for whether workers engaging in side jobs are compliant:

　　The first is to see if the employer has clear regulations prohibiting side jobs.

Some larger, leading companies, or companies that pay attention to business privacy protection will basically prohibit employees from holding part-time jobs and prohibit employees from having dual labor relationships. These units will clearly stipulate in the "Labor Contract" or "Employee Handbook" that employees must not part time.

In this case, even if employees use their rest time to engage in side jobs, they are still at risk of violating the rules.

　　The second is the situation under which the employer can terminate the labor contract according to Article 39 of the Labor Contract Law: "The employee establishes labor relations with other employers at the same time, which seriously affects the completion of the work tasks of the unit, or the employer proposes , and refuses to make corrections." Therefore, although some employers do not have prohibitive regulations, if the employee's side business affects the main business, or if the employee fails to correct it after being reminded by the employer, the employer can also terminate the labor contract.

　　Shen Jianfeng, director of the Academic Committee of the Law School of the China Institute of Labor Relations, said that when a worker's main job and side job conflict, the employer has the right to stop the worker from continuing to engage in part-time or second job, but the method must be reasonable and legal.

If an employer uses humiliation or even "crowding" methods to coerce workers, it is against the rules.

　　Many lawyers told China News Service: In judicial practice, no company wants its employees to engage in side jobs.

　　In addition, according to the Civil Service Law and other regulations, national civil servants are not allowed to obtain economic benefits through part-time work.

If a national civil servant needs to work part-time outside the agency due to work needs, he must obtain approval from the relevant agency and shall not receive part-time remuneration.

　　In addition, according to the "Interim Regulations on Punishment of Staff of Public Institutions" and the Ministry of Human Resources and Social Security's "Guiding Opinions on Supporting and Encouraging Professional and Technical Personnel of Public Institutions to Innovate and Entrepreneurship", "Professional and technical personnel of public institutions are supported and encouraged to work for enterprises in similar business fields to their own. According to the provisions of "part-time employment in scientific research institutions, universities, social organizations, etc., or using entrepreneurial projects related to their majors to start enterprises on the job", professional and technical personnel can do side jobs with the approval of the organization and without affecting their own work.

How to determine the ownership of works in side projects?

　　Many sideline practitioners told China News Service Guoshi Express that they had encountered a situation where the person who placed the order "ran the order" halfway through the creation of the work after receiving the order online.

In this case, who owns the work?

　　Li Hongjiang, senior partner of Beijing Guantao Zhongmao Law Firm and director of the Intellectual Property Business Committee, said in an interview with China News Service Guoshi Express that according to Article 2 of my country’s Copyright Law, “The works of Chinese citizens, legal persons or unincorporated organizations, Regardless of whether it is published or not, copyrights are enjoyed in accordance with this law." and Article 3 "Works as referred to in this law refer to intellectual achievements that are original and can be expressed in a certain form in the fields of literature, art and science..." In this case In this case, it is necessary to first determine whether the part completed by the sideline practitioner is protected by copyright law, that is, whether it constitutes a work within the meaning of copyright law.

According to the provisions of my country's Copyright Law, if it meets the requirements of originality and is independently completed by the creator, it will constitute a work protected by the Copyright Law once completed.

　　"Even if it is half completed, as long as it is original, it should still be protected by the Copyright Law. During the period of engaging in side business, it is generally necessary to sign a part-time labor agreement with the employer. If it is a general job work, then the copyright should belong to the person who completed it, but the employer The author may have the right to preferential use within the scope of his or her business. Within two years after the completion of the work, without the consent of the employer, the author shall not permit a third party to use the work in the same manner as that used by the employer.”

　　However, Li Hongjiang also pointed out that if it is a special job work, such as engineering design drawings, computer software, etc., that needs to be created using the material and technical conditions of the employer, and the employer bears legal responsibility to the outside world, the author only enjoys the right of signature, and the copyright should belong to the employer. unit.

　　In the case where the work belongs to a sideline practitioner, whether the assigner constitutes plagiarism depends on whether he or she copies and uses the work of the sideline practitioner, or to what extent he or she copies or uses the work of the sideline practitioner.

　　In addition, it is necessary to determine what kind of legal relationship has been concluded between the part-timer and the counterparty, that is, whether the type of work created by the part-timer is a commissioned work, a legal person work, or a collaborative work, and how the two parties agreed on the ownership or use scope of the intellectual property rights in the contract. .

　　Li Hongjiang reminded that when sideline practitioners encounter the above situations, they should keep the contract with the counterparty or transfer records that can prove the existence of an entrustment relationship between the two parties, written or electronic communication records, creation records, sketches and manuscripts during the creation process. and other documents.