Recently, a news that "hundreds of college students were deceived when looking for summer jobs" attracted attention. What legal knowledge do college students need to know about part-time jobs in the summer? What are some common routines and minefields in reality? In the event of a dispute, how can you protect your rights and interests?
Q1 | Does a summer part-time job constitute an employment relationship?
Mainland law prohibits employers from hiring minors under the age of 16. Special protection is also given to juvenile workers who have reached the age of 16 but are not yet 18 years old, and employers are prohibited from arranging juvenile workers to engage in underground mines, toxic and harmful labor, and labor with the fourth level of physical labor intensity stipulated by the state, as well as other prohibited labor. In order to protect the physical and mental health of minors, the mainland has also issued a special "Regulations on the Prohibition of the Use of Child Labor", which prohibits all units from employing minors under the age of 16, and also prohibits any unit or individual from introducing minors under the age of 16 from employment and prohibiting minors under the age of 16 from engaging in self-employment activities. This means that only minors and adults who are at least 16 years old can work part-time during the legal summer. Therefore, students who want to accumulate social experience in advance should not be in a hurry, and employers should also fully fulfill their obligations to review the age of recruited personnel, and beware of touching the red line of laws and regulations.
So, do summer workers and employers constitute an employment relationship? Let's take a look at two examples:
One of them: Li, a college student, worked part-time as a food delivery in a fast food restaurant during the summer vacation, and the two sides settled their wages on a weekly basis. In order to obtain the internship certificate, Li privately filled out a blank contract stamped by the fast food restaurant. Later, the two parties had a dispute over wages, and Li applied for arbitration to confirm the labor relationship, and filed a lawsuit with the court, and the court finally determined that there was no de facto labor relationship between Li and the fast food restaurant. Second: Wang obtained his graduation certificate on June 28, 2021, and he joined a car sales company before graduating on May 2, but was injured at work on May 20, and has not been at work since then. The automobile sales company claimed that Wang had not yet graduated when he joined the company, and that he was an intern of the company, and that the employment relationship between the two parties should be established after Wang graduated. Mr. Wang filed a labor arbitration and lawsuit, requesting confirmation of the existence of an employment relationship between the two parties during this period. The court finally confirmed that the employment relationship between the parties was established from May 2, 2021.
A closer analysis of the two cases shows that the students in the two cases are different in terms of the purpose and content of the work, and the method of settlement. Generally speaking, summer workers for the purpose of gaining experience and obtaining additional income are relatively short-lived, and the employment is highly temporary, and the wages are often settled on a piece-rate or hourly, daily or weekly basis. In this regard, Article 12 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China promulgated by the former Ministry of Labor of the mainland stipulates that "students who use their spare time to work and study are not regarded as employment, and if they have not established labor relations, they may not sign labor contracts." Therefore, the summer part-time job of such students is not regarded as employment and does not constitute an employment relationship, and in practice, it can be recognized as an employment relationship according to the employment situation. There is also a situation where the professional internship or social practice organized by the school is not paid, and there is no problem such as signing a labor contract or agreeing on welfare benefits between the intern and the relevant unit, which is essentially an extension of the study of professional courses, and is generally not regarded as the establishment of labor relations; However, for students who have already met the legal age of employment, who undertake early internships for the purpose of job hunting and employment, accept the management of the employer and receive relatively fixed labor remuneration, the court may determine that an employment relationship exists during that period, provided that the substantive characteristics of the employment relationship are met. Therefore, student status is not the only criterion for judging the employment relationship, and the court will make a comprehensive judgment based on the actual circumstances of the case.
What should I do if I am injured at work? 17-year-old Xiao Wang went to a company to do a summer job, originally wanted to earn some living expenses, but unfortunately injured while operating the equipment, the court held that the company did not provide Xiao Wang with pre-job training or safety guarantees, should bear full liability for compensation, so the company was sentenced to Xiao Wang to compensate more than 410,000 yuan. For summer workers who cannot form an employment relationship, they are generally not entitled to work-related injury insurance benefits under the employment relationship, but this does not mean that the rights and interests of summer workers cannot be guaranteed. According to the provisions of the Civil Code, if the party providing the service suffers damage due to the service, it shall bear the corresponding liability according to the fault of both parties. Therefore, if a student suffers an injury in the course of a part-time job in the summer, he or she can claim corresponding compensation from the employing entity in accordance with the employment relationship in accordance with the law.
Q2 | What are the pitfalls of part-time work?
Xiao Jing, a sophomore student, saw the information of a chain bubble tea shop recruiting clerks through a WeChat mini program, so she consulted the specific recruitment information through the mobile phone number left by the other party, and received a reply saying "an interview is needed". The next day, Xiao Jing participated in and passed the interview as promised, and the other party told Xiao Jing that she needed to pay a deposit of 388 yuan, and she transferred it to the other party through WeChat without much thought. After waiting for many days, Xiao Jing found that WeChat and phone could not contact each other, and only then did she realize that she had been deceived.
There are many similar cases of fraudulent recruitment to obtain "employment deposit", "medical examination fee" and "insurance premium". There are many job seekers in the summer, there are few job opportunities, many college students are eager to find jobs, coupled with the criminals' "high salary, easy part-time job", "good salary" and other words to attract, often deceived, once the deposit and training fees of various names are paid, WeChat, telephone are all blacked out by criminals, and the "easy and high-salary" part-time job is in vain. Mainland law clearly stipulates that when an employer recruits a worker, it shall not require the worker to provide a guarantee or collect property from the worker in any other name. Therefore, if college students encounter this situation when they are looking for jobs in the summer, they must stop immediately and complain and report to the relevant departments.
In reality, some companies often seize college students' ID cards, student IDs and other documents on the grounds that "the summer part-time time is too short" and "ensure the stability of employment". If the ID card is seized, it may lead to many adverse consequences, such as being threatened by the employer with words such as "the ID card is in my hand", overtime without compensation, extension of the employment period, arrears and deduction of wages, etc., and even used for illegal and criminal activities such as false registration of legal persons, fraudulent use of the company, and online lending. The People's Republic of China Resident Identity Card Law clearly stipulates that no organization or individual may seize a resident identity card. The enterprise or the employer does not have any right to seize the ID card, and in this case, the job seeker can resolutely refuse to prevent damage to his or her rights and interests.
According to the relevant laws and regulations, the work-study period in the spare time of students does not belong to the establishment of labor relations, and they may not sign labor contracts. On this ground, some employers do not sign written agreements with students, but only make some verbal promises, and deny them once there is a dispute over the working hours and salary amounts, resulting in the damage to the rights and interests of part-time students. Xiao Wang, a sophomore, went to work part-time in the summer with the consent of her parents, and she successfully applied to become a summer clerk in a coffee shop, but the coffee shop did not sign a written contract with her when she joined the company, and the store manager only verbally agreed on the job requirements and salary. After 20 days, Xiao Wang found that her work intensity was far beyond the agreed content, so she proposed to resign, and the store manager refused to pay her salary on the grounds that she had not worked for a month. In this case, it is difficult to protect the rights and interests of students, and in the event of a dispute, it is difficult to come up with effective evidence to protect their rights and interests. Although summer employment does not fall within the scope of adjustment of the labor law, it is still an employment relationship. Therefore, when working part-time, employees must remember that verbal promises are not credible, and the employer should be required to sign a written contract to ensure that their legitimate rights and interests are not infringed upon and to avoid annoying "salary" matters.
Q3 | What are the part-time jobs that can't be touched?
In real life, some college students also encounter companies that say "as long as you hand over your mobile phone card and bank card to the company, you don't have to be affected, and you will have 'fast money' to your account easily." "Is there really such a good thing?
At the end of 2022, Xiao Duan, a college student, encountered such a situation, knowing that others might use bank cards to carry out information network criminal activities, he still sold four bank cards handled with his ID card to others, making an illegal profit of 6,430 yuan. After investigation, the four bank cards under Xiao Duan's name were involved in a number of telecommunications fraud cases, with a fund payment settlement amount of more than 520,000 yuan, and were suspected of committing crimes, and were later sentenced to three months of criminal detention, suspended for six months, and fined 5,000 yuan by the local court for the crime of aiding information network criminal activities. Xiao Duan, who was in the prime of his life, not only lost the opportunity to continue his university studies, but also lost his freedom.
The judge also reminded college students who work part-time in the summer not to trust such part-time job information, and not to sell, rent or lend bank cards, mobile phone cards and other accounts bound to personal information, otherwise there may be a risk of being suspected of covering up or concealing criminal proceeds, aiding information network criminal activities, and even becoming accomplices in telecommunications network fraud. Article 287 of the Criminal Law of the Mainland provides that anyone who clearly knows that others are using information networks to commit crimes, provides them with technical support such as internet access, server hosting, network storage, or communication transmission, or provides assistance such as advertising and promotion, payment and settlement, and the circumstances are serious, is to be sentenced to up to three years imprisonment or short-term detention and/or a fine.
At present, with the increasing role of transaction volume, credit and product evaluation in e-commerce platform transactions, online order brushing has emerged. Attracted by the "easy task and high return", many college students have joined the "army of swiping orders", and many people regard this as a "good way" to make money part-time, and they can earn living expenses without leaving home with just a click of the mouse. However, it is illegal to brush orders, and college students may face legal risks when they work part-time. Paragraph 2 of Article 8 of the Anti-Unfair Competition Law of the People's Republic of China stipulates that business operators shall not help other business operators to carry out false or misleading commercial promotions by organizing false transactions or other means. Therefore, helping stores to swipe orders is an illegal act that disrupts the market order. Online swiping is not only suspected of violating the law, but also defrauding deposits in the name of online swiping and part-time jobs, which can easily lead to money being defrauded. Therefore, college students should stay away from online swiping orders for summer part-time jobs, and don't try to be a "swiper".
With the increasing crackdown of the mainland public security organs, many telecommunications network fraud gangs have moved abroad to carry out fraudulent activities. In order to communicate with domestic fraud targets, fraudsters use "GOIP", "VOIP" and other devices to build domestic and foreign communication bridges, so as to smoothly carry out fraud. In short, with a simple technical operation, two telephones and one data line, "overseas calls" can be turned into "local calls", thus improving credibility. Therefore, fraudsters lure people in China through high salaries, and build network link technologies such as "GOIP" and "VOIP" for them, and many college students are deceived by the so-called "high salary" and embark on the road of no return to breaking the law and committing crimes. When Yang was working part-time in the summer, he was invited by strangers, and in order to obtain benefits, he set up "GOIP" equipment in China through the mobile phone software account and password provided by "Shangjia", using mobile phones, connection lines, phone cards, etc., to provide technical support for communication transmission for fraudsters, so that fraudsters can remotely control and make calls to victims, and make a profit of 770 yuan. The fraudsters carried out two frauds through mass messages, with illegal profits totaling more than 600,000 yuan. Yang's behavior has been taken criminal compulsory measures by the public security organs in accordance with the law because he is suspected of committing a crime, and the case is still being further handled.
In addition, helping fraudsters withdraw cash, lending online social media accounts such as WeChat or QQ, and impersonating customer service calls to attract traffic and other part-time jobs may also be suspected of violating the law or even committing crimes. During the summer vacation, college students must improve their awareness of prevention, do not believe in high returns, improve their ability to recognize, prevent and reject fraud, stay away from illegal part-time jobs, and learn to protect themselves.
Judge's Advice | Workers' rights protection: grasp the key "three steps"
1. "Check": Before accepting any part-time job, college students should carefully verify the authenticity and legitimacy of the recruitment information, and can inquire and verify the qualifications and business licenses of the employer through tools such as the National Enterprise Credit Information Publicity System, Enterprise Check, Tianyan Check, etc., so as to avoid entering the "black workshop" or "bag company", and should choose a formal and safe employer.
2. "Signing": If the employee refuses to make an oral promise, the employee should ask the employer to sign a written contract or agreement, specifying the working hours, place, salary and benefits, etc., and see whether the contract has unfair and unreasonable terms and whether it is a blank contract. It is also necessary to pay attention to the retention of the original contract, which is also the basic work of rights protection.
3. "Retention": Employees should pay attention to keeping evidence such as WeChat chats, recordings, attendance records, uniforms and badges with the employer, so as to serve as proof of rights protection in the event of disputes. In addition, it is also necessary to pay attention to the protection of personal information, and when submitting documents such as a copy of the ID card, you should note the words "for part-time use only" to avoid theft or fraudulent use of personal information.
In addition, students should also be aware of the channels for protecting their rights, and actively seek help from the public security organs, labor inspection departments, judicial organs and schools when their legitimate rights and interests are infringed. In case of legal problems, you can call the 12348 Beijing Public Legal Service Hotline or go to a legal aid institution for help, and with the help of professionals, you can protect your legitimate rights and interests through arbitration or litigation.
This article appeared in the 10th edition of Beijing Daily on August 14, 2024
Contributed by Beijing Third Intermediate People's Court
Editor: Zhang Jingdan Wang Xi
Review: Zhang Lei