At present, with the rapid development of the Internet economy, "emerging" jobs such as online car-hailing drivers, food delivery boys, and errand runners have emerged, and more and more workers can find employment in new business fields such as platform economy and sharing economy, forming a new form of employment that is de-employer and de-platform.
In this regard, the report of the 20th National Congress of the Communist Party of China particularly emphasized that it is necessary to "improve labor laws and regulations, improve the consultation and coordination mechanism of labor relations, improve the system of protecting the rights and interests of workers, and strengthen the protection of the rights and interests of workers in flexible employment and new forms of employment".
In February this year, the Ministry of Human Resources and Social Security promulgated the Guidelines for the Protection of the Rights and Interests of Workers in New Employment Forms of Rest and Labor Remuneration, the Guidelines for the Publicity of Labor Rules for Workers in New Employment Forms, and the Guidelines for Safeguarding the Rights and Interests of Workers in New Employment Forms (hereinafter referred to as the Guidelines for Rights and Interests Protection, Rules Publicity Guidelines, and Rights and Interests Protection Service Guidelines) to guide enterprises to further employ workers in accordance with laws and regulations and better protect the rights and interests of workers in new forms of employment.
Combined with the typical cases of the People's Court of Chaoyang District, Beijing
Let's take a look at the new forms of employment
How to reasonably protect rights in accordance with the law?
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What standard should an enterprise pay wages to workers in new forms of employment?
After Mr. Guo joined a logistics company, he checked in through the company's application software, through which the company released the delivery demand information, and Mr. Guo provided pickup and delivery services according to the demand information. After November 2021, the company began to default on Mr. Guo's wages, and Mr. Guo sued the Chaoyang Court, demanding that the company pay his wages truthfully.
After hearing the case, the Chaoyang court held that the operation agreement submitted by Mr. Guo showed that the operating entity of the application software was a certain company, and the type of services provided by the operation software was consistent with the work content claimed by Mr. Guo, and that the attendance records submitted by Mr. Guo showed that he was managed by the company and provided labor for the company, and that the company's business scope included "special transportation of goods" Therefore, the court confirmed the existence of an employment relationship between Mr. Guo and the company in accordance with the law, and determined Mr. Guo's wage standard and salary payment accordingly, and finally ordered the company to pay Mr. Guo's wages for the period from November 1, 2021 to December 26, 2021.
The judge speaks the law
The employment model of the new employment form is more complex, for example, the field of food delivery includes delivery riders and crowdsourcing riders, and delivery riders can be divided into full-time riders, part-time riders, labor dispatch riders, etc., and in judicial trial practice, many companies will defend that the employee is a "part-time" and there is a "labor relationship" rather than an "employment relationship" with the company, so it is difficult for the court to determine the nature of the legal relationship between the parties based on different employment models.
Article 8 of the Guidelines for the Protection of Rights and Interests promulgated this time stipulates that the hourly minimum wage standard prescribed by the people's government of the place where the worker actually works shall apply to a worker in a new form of employment who does not fully comply with the circumstances under which the employment relationship is established but the enterprise manages the employee's labor.
In the face of "business outsourcing", "cooperative contracting" and "mixed employment"
How can workers in the new form of employment correctly protect their rights and interests?
In 2019, Mr. Zhao signed a written employment contract with Beijing A Technology Co., Ltd., and his work department was the company's WeChat group, and his work content was to shoot and publish short videos, and his salary was paid by Beijing A Technology Co., Ltd.
Mr. Zhao asserted that he worked at Beijing A Technology Company, Beijing B Technology Company and Tianjin C Technology Company from March 12, 2019 to August 20, 2020, and that there was a mixture of entities in the above three companies, specifically, one set of personnel and multiple brands, the finance, personnel and actual controllers were all one set of personnel, the monthly salary was jointly paid by the three defendants, and the attendance and reimbursement were all managed through a unified system. Mr. Zhao, who worked until August 10, 2020, filed a lawsuit with the Chaoyang Court due to the irregular payment of wages, requesting confirmation of the existence of an employment relationship with Beijing B Technology Company and the joint and several payment of arrears of wages by the three affiliated companies.
After trial, the Chaoyang Court held that, according to the evidence in the case, Beijing A Technology Company and Beijing B Technology Company regularly transferred money to Mr. Zhao, and the work email also reflected the connection of Tianjin C Technology Company. The legal representatives and working places of the three companies were the same, and there was confusion in their business, and it was impossible to make a clear distinction between the staff members, including Mr. Zhao, through the evidence, so the court accepted Mr. Zhao's claim that the three companies constituted mixed employment with him, and supported his claim for joint and several liability.
The judge speaks the law
With the vigorous development of the platform economy, in practice, there are often situations where multiple affiliated enterprises manage the employment of workers at the same time. Employers and their affiliates may take advantage of their dominant position to arrange more work tasks without consultation with the employees, or even have wage arrears, and the employees often fall into the confusion of "not knowing who to claim rights from".
Combined with the Labor Contract Law and the "Two Guidelines and One Guideline", the rights of workers in new forms of employment such as their right to rest and remuneration for labor should be fully protected. Workers should pay attention to whether there are multiple entities mixed in their daily work, retain evidence of information such as the release of work tasks, the docking of work processes, and the output of work results, and may require relevant enterprises to jointly bear responsibility when their legitimate rights and interests are infringed.
In the event of a dispute, how should the burden of proof be divided between the employee and the employer in the new form of employment?
Mr. Sun registered as a "rider" through platform A, and the employment relationship was subordinate to company B, and company B applied the salary plan formulated by platform A, that is, the salary was calculated according to the number of orders delivered by the riders.
During Mr. Sun's employment, Mr. B did not sign a labor contract with him, failed to pay social insurance, and later owed his wages in October and November 2021, so Mr. Sun sued the Chaoyang Court, requesting that the B delivery company be ordered to pay 9,738 yuan in wages for the period from October 1, 2021 to November 3, 2021.
Mr. Sun checked the number of orders he delivered through the APP, and according to the salary plan, he was able to get the labor remuneration he was entitled to. Later, Company B was in arrears of wages for several months and did not accept the salary plan advocated by Mr. Sun, claiming that the wages of the "riders" were directly calculated by the platform algorithm, and that it had paid Mr. Sun's wages in full according to the calculated amount.
After the trial, the Chaoyang Court held that under the circumstance that the ordinary employee has a weak ability to present evidence, if the other party raises a rebuttal opinion for the evidence materials that are relevant to the employer, it should bear the burden of proof for the rebuttal opinion. Mr. Sun had submitted evidence such as bank account details and screenshots of the delivery software, which could be preliminarily corroborated with his statement, and Company B neglected to provide evidence on the grounds that it did not manage the delivery riders and did not know the delivery business of the riders, and should bear adverse legal consequences. Therefore, the court ruled that Company B should pay Mr. Sun's outstanding wages in accordance with the law.
The judge speaks the law
Workers in the new form of employment rely on the Internet to provide services, and their work is largely dependent on the algorithms formulated by platform companies. The algorithm is set in advance by the platform enterprise for work scheduling, labor management, and salary calculation and payment according to the order, and the worker can only provide evidence through screenshots, screen recordings, etc., and may also face the situation that the account is cancelled and the original carrier cannot be provided after the labor relationship is terminated.
Article 4 of the Guidelines for the Publication of Rules clearly stipulates that platform enterprises shall follow the principles of legality, fairness, impartiality, transparency and interpretation, scientific reasonableness, honesty and credibility in formulating or revising platform labor rules, and perform democratic procedures in accordance with the law. In addition, Articles 5 to 8 of the Guidelines for the Publication of Rules provide more detailed provisions on the formulation and publicity of labor rules. Article 5 clarifies that platform enterprises shall disclose to workers in new forms of employment who rely on the platform rules and regulations, standard contract clauses, algorithm rules and operating mechanisms, such as order allocation, remuneration and payment, working hours and rest, occupational health and safety, and service specifications, which are directly related to the basic rights and interests of workers.
In the event of a labor dispute, the parties have the responsibility to provide evidence for their own claims. If the evidence related to the disputed matter is in the possession and management of the employer, the employer shall provide it, and if the employer fails to do so, it shall bear the adverse consequences. In the process of dispute resolution, the employer shall bear the burden of proof on the payment of wages and the work carried out by the employee.
This time, the Guidelines for Rights and Interests Protection Services address the problem of difficulties in protecting the rights of workers in new forms of employment from multiple levels and dimensions, and require government administrative departments, courts, trade unions, enterprise representative organizations, platform enterprises, etc. to jointly explore and innovate labor rights protection services suitable for the characteristics of new forms of employment, and improve and optimize rights protection services for workers in new forms of employment.
When the rights of workers in the new form of employment are violated, such as unreasonable reduction of piece-rate wage income, "excessive overtime" during peak order hours, etc., they should keep the corresponding evidence as soon as possible and protect their legitimate rights and interests in accordance with the law through the following methods:
First, relevant problems can be resolved through negotiation with enterprises through internal communication channels, grievance mechanisms, trade union organizations, etc., set up by platform enterprises or platform employment cooperative enterprises. Platform enterprises shall actively verify and coordinate handling.
Second, if it is unable to resolve the relevant issues through consultation with the enterprise or unwilling to negotiate with the enterprise, it may apply to the people's mediation committee and various professional labor dispute mediation organizations at all levels for mediation. The Guidelines for Rights and Interests Protection Services emphasize the active construction of multiple mediation mechanisms for labor disputes in new forms of employment, give full play to the effectiveness of non-litigation dispute resolution methods, and encourage localities with the capacity to integrate the forces of courts, human resources and social security, judicial administration, trade unions, enterprise representative organizations and other units to establish a "one-stop" mediation institution for disputes in new forms of employment.
Third, if the parties are unwilling to mediate, or if the mediation fails, and the labor dispute arbitration falls within the scope of labor dispute arbitration, the worker may apply to the labor and personnel dispute arbitration institution at the actual place of work for arbitration; if it does not meet the scope of labor dispute arbitration, he or she may also file a lawsuit with the people's court with jurisdiction in accordance with the relevant provisions of civil litigation; and if the matter meets the scope of labor security supervision, the worker may report and complain to the labor security supervision agency.
Source: People's Court News Media Headquarters
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