Does the online anchor and the platform constitute a labor relationship? Does WeChat office work after get off work count as overtime? The digital age has brought about new changes in labor models, which has also given rise to new problems and disputes.
In recent years, the People's Court has given full play to its judicial service guarantee and promoted the construction of harmonious labor relations, properly resolved labor disputes in accordance with the law, continuously met workers' higher requirements in terms of confirmation of labor relations, equal employment, rest and vacation, etc., and promoted high-quality and full employment. , realize decent work, and build a solid foundation of happiness for “thousands of lights”.
Determine labor relations based on actual employment and eliminate the “hidden trap” to avoid employment responsibilities
Through application and training, Song officially became a housekeeping cleaner through an online appointment. Song's employee-based housekeeping company signed a housekeeping service agreement with Song in the name of cooperation, stipulating that Song will provide customers with home cleaning services according to the company's arrangements, and that Song shall not engage in housekeeping services through other platforms during the cooperation period, etc. .
During a cleaning project, Song was injured at work. When she contacted the company to seek compensation based on work-related injury insurance benefits, the company refused to pay compensation because it claimed that there was no labor relationship between the two parties. “We work six days a week. The company distributes cleaning orders through the housekeeping service platform. When there are no orders, we have to do other work as arranged by the company. How can there be no labor relationship?” Song couldn't figure it out. After she applied for arbitration to the arbitration committee, the arbitration committee confirmed the labor relationship between the two parties. However, a housekeeping company refused to accept the decision and took it to court.
“The focus of the dispute in this case is whether the circumstances between Song and a housekeeping company are consistent with the conclusion of a labor contract. According to the “Notice on Matters Concerning the Establishment of Labor Relations”, the focus should be on whether both parties are legal entities establishing a labor relationship. Whether there is a strong degree of labor management during the period.
Can an agreement signed in the name of cooperation avoid employment responsibilities? “The company requires Song to abide by work rules, and controls and manages Song's working hours by issuing perfect attendance awards, deducting service fees, etc., which shows strong personality subordination; the company understands that Song is engaged in domestic service industry According to the necessary user demand information, Song is paid monthly with a fixed salary structure, which has strong economic subordination; the company incorporates Song into its domestic service organization system for management, and prohibits multi-platform employment and other methods Song was restricted from entering other organizations, and there was obvious organizational affiliation between the two parties.
In addition to the field of family affairs, in recent years, the online anchor industry has also faced problems in determining labor relations. Some brokerage companies follow the traditional method of establishing civil cooperative relationships with anchors, focusing on cultivating well-known anchors, etc., and distributing income through agreed sharing methods. However, the main purpose of recruiting anchors for some companies is to carry out “live streaming to bring goods”. The anchors have no right to negotiate personal packaging, live broadcast content, etc., reflecting strong subordination characteristics. “In arbitration and judicial practice, we should focus on examining the content and determination of the rights and obligations between the company and the anchor, comprehensively determine the nature of the legal relationship between the two parties, and break the 'cover-up' to avoid employment responsibilities.” President of the First Civil Division of the Supreme Court Chen Yifang said.
It is understood that the Supreme Court will work with relevant departments to strengthen the protection of workers' rights and interests in the platform economy, support and standardize the development of new employment forms, improve and improve the standards for identifying labor relations in new industries, determine the legal employment relationship between enterprises and workers based on employment facts, and pass case-by-case judgments and play a leading role in formulating judicial policies to promote comprehensive management of employment in new industries.
Establish rules for determining online overtime pay to protect the “right to offline rest”
Does WeChat office work after get off work count as overtime? After Ms. Li joined a technology company in Beijing, she served as the head of product operations. The two parties signed a labor contract and agreed to implement the irregular working hours system. Later, the company terminated the labor relationship between the two parties on the grounds of absenteeism. Ms. Li took the company to court. One of the claims was that she worked a total of more than 500 hours of overtime after work, on weekends and statutory holidays, and required the company to pay overtime pay of 40 More than 10,000 yuan.
“Ms. Li is the person in charge of the operations department. If something happens to the company after work, it is normal for other employees to call Ms. Li for consultation, and it should not be considered overtime.” As for the situation of being on duty on weekends and statutory holidays that Ms. Li advocated, the company said , there are customers and other employees of the company in the WeChat group. Customers will ask questions in the group. Employees replying to customer information does not fall into the category of overtime.
“According to the relevant provisions of China's labor law and other relevant provisions, companies that implement irregular working hours must obtain approval from the labor and social security department. In this case, although the parties had an agreement in the labor contract, the company did not obtain approval.” Judge of the Beijing No. 3 Intermediate Court Zheng Jizhe introduced that according to the WeChat chat records submitted by Ms. Li, the holiday community official account duty schedule and other evidence, Ms. Li had to deal with dozens of WeChat groups when she was on duty during the holidays, and the company required that user requests be received within 30 seconds. The work content is cyclical and fixed, which is different from temporary and episodic general communication, and should be deemed to constitute overtime.
Regarding the issue of overtime hours, the court held that it was unfair to the employer to consider the entire overtime hours as overtime hours. “Working on WeChat often occurs in workers' lives. In fact, while Ms. Li was waiting for customers to ask questions, she still had a relatively long time to carry out daily activities.” Zheng Jizhe introduced that the court used substantive labor and obvious occupation of time as the criterion. The determination standard for “invisible overtime” takes into account the worker's overtime frequency, duration, salary standards, work content and other factors, and determines the worker's overtime pay of 30,000 yuan as appropriate.
Science and technology are developing, working models are changing, and judicial practice should also keep pace with the times. In the context of the continuous development of the platform economy, the tools provided by many workers have changed from physical to digital, which has also resulted in the problem of “virtualization” and “invisibility” of overtime. “In the above case, the principle of “providing the substance of work” and the principle of “obviousness of occupied time” were proposed as the criteria for identifying the problem of “invisible overtime”, which protected workers' “right to offline rest” and made the boundary between work and rest clear. ization, actually protecting the legitimate rights and interests of workers.
Clarify the refereeing rules and implement the legitimate rights and interests of workers
Li joined a company to work as a massage therapist. The two parties signed an employee confidentiality agreement, stipulating that Li would not engage in similar products or related services for similar companies within two years after leaving the company. Otherwise, he would pay a one-time liquidated damages of no less than 50,000 yuan to a company. . Two months after Li resigned from the company, he joined the Traditional Chinese Medicine Bureau of a community health service center. The company believed that Li violated non-competition obligations and should pay liquidated damages, and the two parties took disputes to court.
“The main purpose of the non-competition system stipulated in the Labor Contract Law is to protect the employer's business secrets and confidential matters related to intellectual property rights, and to regulate unfair competition, rather than to restrict the normal flow of talents between enterprises.” The trial court held that Li Mr. X is a masseur and trainer of a certain company, and is not a senior manager or senior technical staff of the company. What Li comes into contact with in his daily work is the company’s general operating information, not core operating information, and he is not obligated to keep it confidential. , even if a non-compete agreement was signed, there was no need to bear non-competition obligations, and the court ultimately dismissed the company’s lawsuit.
“In practice, non-compete clauses are subject to abuse such as generalization of applicable subjects. Some employers sign non-compete agreements with workers indiscriminately, without distinguishing whether workers are those who possess the company's business secrets or confidential matters related to intellectual property rights. , and agree on high liquidated damages, but workers are often limited by the employer's advantageous position and cannot refuse to sign non-compete agreements to smooth the social mobility channels of labor resources.
In recent years, the people's courts have continuously improved their adjudication rules in labor dispute trials, contributing judicial power to the modernization of the labor relations governance system.
Because his wife was expecting a baby, Mr. Li verbally asked for leave to go home to accompany the baby and did not attend work again. Later, Mr. Li had a conflict with the company during salary settlement and sued the court, demanding that the company pay nursing leave wages, etc. “According to the “Population and Family Planning Regulations of Jiangsu Province”, for couples who have children in compliance with the provisions of these regulations, the woman shall enjoy the maternity leave prescribed by the state, and the maternity leave shall be extended by no less than 30 days, and the man shall enjoy nursing leave for no less than 15 days. Holidays are regarded as attendance, and wages will be paid during the prescribed holidays.
Paternity leave is the right of male employees to take care of their wives and children during their childbirth period. “The People's Court ordered employers to pay male employees wages during nursing leave, which will help guide employers to strictly implement relevant national regulations, give full play to men's indispensable role as husbands and fathers in childbirth, and strengthen the equality of the sexes in childbirth matters. Cooperation is conducive to the healthy growth of the next generation, the further improvement of the fertility support policy system, and the high-quality development of the population.
“People's Daily” (Page 18, May 9, 2024)
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