News

Case//
The Qichacha app shows that recently, Ele.me’s main operating company, Lazas Network Technology (Shanghai) Co., Ltd., added a new civil judgment. The specific cause was that the plaintiff, Wang, was injured in an accident during the meal delivery, and was identified as a second-degree disability. The defendant Ele.me argued that there was no employment relationship with the plaintiff, and the defendant should not be responsible for the plaintiff's losses. The court held that the two parties established a new type of employment relationship through the Internet, which was in line with the characteristics of the employment relationship. However, because the plaintiff did not wear a helmet and drove without a license, the defendant should compensate the plaintiff for 60% of the liability. In the end, the court ruled that the defendant Ele.me should compensate the plaintiff 1,090,096 yuan.

（From Internet）

//Lawyer's Interpretation

First of all, according to the "Notice of the Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations", if an employer recruits workers without entering into a written labor contract, but meets the following conditions at the same time, the labor relationship is established. (1) Employers and workers meet the subject qualifications stipulated by laws and regulations; (2) Various labor rules and regulations formulated by employers in accordance with the law are applicable to workers, workers are subject to labor management by the employer, and those who are engaged in arrangements by the employer have paid labor. (3) The labor provided by the laborer is an integral part of the employer's business.

Secondly, affiliation is the key feature of identifying labor relations, mainly from the two aspects of personal affiliation and economic affiliation to judge whether workers and platform companies have formed affiliation. In practice, when judging whether there is a "subordination" between the laborer and the employer, the most important factors will be comprehensively selected for judgment. Such as: whether the worker is working full-time; whether there is an exclusivity requirement for the work content of the platform; whether the platform company can control the specific details of the worker's work; whether the worker has the right to refuse the platform company to send orders; whether the salary is in a fixed form and the specific  amount is settled, or whether it is settled at a fixed commission ratio, etc.

Thirdly, when assigning the burden of proof under the new flexible employment model, the characteristics of the mobile Internet business model and the proof ability of both parties will be comprehensively considered. In practice, the existence of the labor relationship is borne by the party who claims the establishment of the labor relationship. The judge will consider the mobile Internet and other new flexible employment models and combine the parties' ability to produce evidence, comprehensively judge the difficulty that the distribution of the burden of proof may bring to the case, and then decide whether the burden of proof needs to be shifted. The judge will provide evidence on the platform's business model and other details of the legal relationship with the workers. If the platform company cannot provide evidence, the platform company will bear the adverse consequences. In reality, if the burden of proof on workers is emphasized blindly, it will disguisely encourage Internet companies to abuse their technological advantages to avoid legal responsibilities.

Finally, the identification of labor relations is a category to be adjusted by mandatory norms. The characteristic of labor law is that the parties are not allowed to freely agree on whether a labor relationship is constituted, and the identification of labor relations is not equivalent to the establishment of a labor contract. In particular, Internet platform companies usually may specify that the relationship between the two parties is not a labor relationship when signing electronic registration agreements with workers or other agreements with platforms. Or the two parties expressly agree with the worker that the two parties are not in a labor relationship in the form of a written or electronic agreement. This agreement is not of course binding, and the people's court will confirm whether the two parties constitute a labor relationship in combination with the "cooperation" model of the two parties and the specific work content of the laborer when adjudicating the practice. For example, the Internet platform has entered into a "cooperation agreement" or "labor service agreement" with the laborer, but the actual terms are more in line with the provisions of the law on labor contract terms; although the laborer does not need to provide services to clock in and go to get off work on time, the Internet platform has actual working hours, work results, salary payment, etc. are supervised. In the above circumstances, it may be considered that a relatively close personal and economic subordination has been established between the laborer and the Internet platform enterprise, and thus the existence of a labor relationship is determined.

Summarize

While platform companies such as "Internet +" use modern Internet technology to bring convenience to themselves and reduce operating costs, they may also need to bear the risks brought by it. In short, it is recommended that new flexible employment companies establish a legal employment system and increase safety awareness training for platform employees, rather than relying on flukes to use technological advantages to avoid legal responsibilities.