Viewpoint | Risk assessment of part-time employment in enterprises
Published:
2024-04-25
In enterprise employment, in addition to full-time labor, part-time labor will be used as a necessary supplement. The main distinction between part-time employment and labor relations lies in whether employees accept management, obey company rules and regulations, and whether there is personal affiliation. Although the employment channels of enterprises are diversified, employers should still pay attention to avoid the above risks and deal with part-time labor relations in accordance with laws and regulations.
In enterprise employment, in addition to full-time labor, part-time labor will be used as a necessary supplement. Although part-time labor contracts are more flexible in the conclusion and termination, such as both parties can terminate at any time, and there is no economic compensation, but there are certain risks. Part-time employment refers to the form of employment in which hourly pay is given priority to, and the average daily working hours of workers in the same employer generally do not exceed four hours, and the cumulative working hours per week do not exceed 24 hours. Part-time employment is still a labor relationship, which is stipulated in Articles 68 to 72 of Section 3 of Chapter 5 of the Labor Contract Law.
The distinction between part-time and full-time employment mainly lies in working hours, salary settlement cycle, social insurance payment, etc. The main distinction between part-time employment and labor relations lies in whether employees accept management, obey company rules and regulations, and whether there is personal affiliation.
For employers, from the perspective of compliance, the following points should be paid attention to in part-time labor relations:
▲ 1. part-time employment shall not agree on a probation period. Article 70 of the Labor Contract Law provides for this.
▲The settlement cycle of 2. remuneration shall not exceed 15 days, and the remuneration standard shall not be lower than the minimum hourly wage standard set by the people's government where the employer is located. Article 72 of the Labor Code provides for this.
▲ 3. remuneration is calculated on an hourly basis and should not be calculated on the basis of business volume, performance commission, etc. Judicial jurisprudence (see below) shows that the determination of part-time employment can be affected if the remuneration method is calculated as a performance commission.
4. part-time employment should be filed in a timely manner. The "Opinions on Several Issues Concerning Part-time Employment" stipulates that when an employer recruits workers to engage in part-time work, it shall go to the local labor security administrative department to go through the employment filing procedures after employment.
▲If the 5. is nominally part-time, but the actual employment process does not meet the above requirements, it will be recognized as a full-time labor relationship, and then bear the risk of paying compensation or illegally terminating the contract compensation.
The existing judicial cases show that the identification standard of part-time employment mainly lies in: wage calculation cycle, working hours, remuneration method and so on. The main points of the judgment are as follows: in this case, first, a business club company calculates Yang's salary not according to the hour, but according to the performance commission; second, Yang is on standby at the workplace during his employment, and the evidence submitted by him also shows that he works about 11 hours a day and at least 6 days a week, which obviously exceeds the limit of part-time employment on the length of working hours; third, A business hall company pays wages to Yang on a monthly basis, and the settlement payment cycle has exceeded 15 days. To sum up, although the two parties have signed a part-time labor contract, the form of labor relationship and the settlement method of remuneration between the two parties do not conform to the characteristics of part-time employment, and it should be determined that the two parties belong to a full-time labor relationship. From: Beijing Municipal Human Resources and Social Security Bureau released 2022 typical cases of labor and personnel dispute arbitration.
▲The 6. shall pay work-related injury insurance even during the part-time employment period, and the unpaid work-related injury expenses shall be borne by the employer.
The "Opinions on Several Issues Concerning Part-time Employment" stipulates that employers shall pay work-related injury insurance premiums for part-time workers who establish labor relations in accordance with relevant state regulations. Workers engaged in part-time work who suffer from work-related injuries shall enjoy work-related injury insurance benefits in accordance with the law; if they are identified as disabled 5-10, they can settle the disability benefits and related expenses at one time after consultation between the worker and the employer.
The gist of the referee is as follows:The court of first instance held that workers engaged in part-time work suffered work-related injuries and enjoyed work-related injury insurance benefits in accordance with the law. The relationship between Xie Shouqing and Yueyuan Company is a labor relationship, and both parties shall perform their respective obligations in accordance with the provisions of the the People's Republic of China Labor Contract Law. Yueyuan Company did not pay the cost of work-related injury insurance for Xie Shouqing, so it should bear the cost of paying Xie Shouqing's work-related injury treatment on its own... As for the first point of dispute, the Court believes that the workers enjoy the work-related injury insurance treatment according to law, and the employer is also obliged to buy work-related injury insurance for the workers. The relationship between Xie Shouqing and Yueyuan Company is a labor relationship, and both parties shall perform their respective obligations in accordance with the provisions of the the People's Republic of China Labor Contract Law... The employer shall bear the cost. From:(2021) E 03 Min Zhong No. 205 Civil Judgment.
Although the employment channels of enterprises are diversified, employers should still pay attention to avoid the above risks and deal with part-time labor relations in accordance with laws and regulations.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
