Can the employment relationship be confirmed for college students working part-time?
2024-08-13
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During the summer vacation, some college students choose to work part-time to enrich their vacation life and exercise their ability to adapt to society. It is worth warning that college students may face certain risks when working part-time. Recently, the Xicheng District People's Court of Beijing released a number of dispute cases involving college students' part-time jobs, reminding college students to protect their legitimate rights and interests in accordance with the law.
In a labor dispute, Xiaoguo, a college student, worked as a part-time lecturer at an Internet company in July 2021, providing offline course tutoring and charging hourly class fees. The two parties did not sign an internship contract. On September 30 of that year, Xiaoguo signed an internship salary confirmation agreement with the company, confirming that the company would pay Xiaoguo's after-tax salary of 13,135 yuan in August and 960 yuan in September before October 31 of that year. If the deadline is exceeded, the company will pay a penalty of 5% of the salary amount, and Xiaoguo has the right to stop normal work until the salary is paid.
However, the Internet company did not pay Xiaoguo's salary as scheduled, so Xiaoguo applied for labor arbitration. The arbitration committee issued a notice of non-acceptance. Xiaoguo was dissatisfied and sued the court.
Based on the nature of Xiaoguo's work and the mode of payment, the Xicheng Court held that he and the defendant company should have a service relationship, not an employment relationship. After the judge's explicit instructions, Xiaoguo agreed to change the case to a labor contract dispute. His request for payment of wages and liquidated damages was supported by the court.
The judge in charge of the case pointed out that according to the "Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China", students who work part-time in their spare time are not considered to be employed, and no labor relationship has been established, so they do not need to sign a labor contract. Xiaoguo and the defendant company have established a labor contract relationship, and labor contract disputes do not need to apply for labor arbitration in advance, so the arbitration committee will not accept it. In this case, you can directly sue in court.
In another dispute, Xiao Wang, a college student, obtained his graduation certificate in July 2017. On February 13 of that year, he went to a travel company for an interview and was hired on the same day after passing the interview, responsible for the design and sales of travel products in the financial department. However, the two parties did not sign a labor contract, only agreeing that Xiao Wang's monthly salary was 5,000 yuan, which would be paid by bank transfer, and the salary was actually paid until September of that year.
In October of that year, Xiao Wang verbally notified the company of the termination of the labor relationship on the grounds that the company owed wages, and demanded that the company pay the wages owed and the difference of two times the wages for not signing a labor contract, and issue a certificate of termination of the labor relationship, but the travel company disagreed. Xiao Wang applied for labor arbitration and was supported. The travel company was dissatisfied with the arbitration award and sued the court, emphasizing that Xiao Wang was a student and the two parties had not signed a labor contract, so they were not in a labor relationship.
The Xicheng Court held that student status does not necessarily become an obstacle to establishing a labor relationship. In this case, although Xiao Wang is a college student, he applied for the corresponding position for the purpose of seeking employment. The employer also recruited, employed and managed him as a formal employee and paid him labor remuneration on a monthly basis. Therefore, the relationship between the two parties is not an internship or work-study program, and a labor relationship should be established. Based on the Labor Contract Law, the court ordered the employer to pay the double wage difference for not signing a labor contract and issue a certificate of termination of the labor contract.
The presiding judge pointed out that in practice, the relationship between college students and employers is not a simple relationship. Whether it is a labor relationship or not, the court will make a comprehensive judgment based on the actual situation of the case. In internships organized and managed by the school, college students go to relevant units to participate in social practice, without wages, and there is no labor contract signed between the interns and the relevant units, and no agreed welfare benefits. At this time, the two parties are not in a labor relationship; college students use their spare time to work and study, which is not considered employment according to relevant regulations, that is, in this case, there is no labor relationship between college students and employers; although college students have not yet obtained their graduation certificates, they have completed all their learning tasks, have a clear desire to find a job, accept the management of the employer and receive corresponding fixed labor remuneration, and have the characteristics of establishing a labor relationship, so they have established a labor relationship with the employer.
The judge reminded that whether it is an internship to gain experience, work-study program, or job hunting after graduation, college students and employers should attach importance to retaining relevant materials for entry and employment, and sign written internship agreements or labor contracts in a timely manner to clarify the rights and obligations of both parties, and perform the contract honestly and faithfully.
(Source: China Youth Daily)
