[Direct answer]In the Beijing area, you should first claim compensation from the labor dispatch unit. According to Article 58 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012 and implemented on July 1, 2013), the labor dispatch unit is the employer as defined in the Labor Contract Law, and it shall fulfill the obligations of the employer towards the workers and conclude a written labor contract with the dispatched workers. The economic compensation and compensation payments for being dismissed shall be borne by the dispatch unit first. If the employing unit illegally returns the worker and causes damage to the worker, the worker may claim compensation in accordance with Article 65 and the Interim Regulations on Labor Dispatch (Ministry of Human Resources and Social Security Order No. 22, implemented on March 1, 2014). If the dispatch unit and the employing unit cause damage to the dispatched worker, they shall bear joint and several liability for compensation in accordance with Article 92. It is recommended to first confirm the subject of the labor relationship and then claim compensation, and refer to the relevant provisions as necessary.Work-related injuriesColumn.

1. Problem background and typical scenarios

These types of issues often arise in several scenarios: First, when the employing unit sends the dispatched workers back at the end of the project, the dispatching unit immediately terminates the labor contract; Second, when the employing unit directly notifies the dispatched workers to leave because of "unsatisfactory performance", the dispatching unit refuses to pay compensation on the grounds that "the employing unit has sent the workers back"; Third, when the dispatched workers are actually recruited, managed, and paid by the employing unit, the two units shirk responsibility when the workers are dismissed; Fourth, the employment form where the name is outsourcing but the reality is dispatching. When handling similar cases in the Beijing area, the first step is to determine the ownership of the labor relationship and then identify the subject of compensation liability. For cases involving the boundaries between labor outsourcing and cooperative employment, reference can be made to the relevant provisions.Business and contract disputes in enterprisesColumn.

II. Key points of dispute

Focus One: The attribution of labor relations. Who signs the labor contract and who pays for social insurance are the basics, but the actual management and payroll entities may not be consistent with the contract entities. Focus Two: Whether the termination is legal. According to Article 65 Paragraph 2, the employing unit may only return the worker under the circumstances specified in Article 39 and Article 40 Paragraphs 1 and 2. The dispatching unit must have a legal basis for termination. Focus Three: Compensation or damages. For legal terminations, the employing unit pays economic compensation; for illegal terminations, the dispatching unit pays compensation at twice the standard. Focus Four: Joint and several liability. If the worker suffers damages, the dispatching unit and the employing unit shall bear joint and several liability for compensation according to Article 92. Focus Five: Calculation of work experience. For workers who transfer between related units for reasons beyond their own control, the work experience in the original unit shall be combined and calculated. The above interpretations are based on the currently effective laws, regulations, and judicial rulings.

III. Professional analysis by Henglue Law Firm

Taking a labor dispute handled by our firm as an example, we can observe the impact of the determination of labor relations on the claim for compensation. In January 2021, Liu Lei participated in the operation of a Beijing-based start-up company as the chief technical officer, and signed a "Cooperation Operation Agreement" with the company's legal representative and a third party, agreeing to hold 20% of the virtual equity. However, the parties never signed a labor contract or paid wages. In April 2023, Liu Lei issued a "Notice of Forced Termination of Labor Relationship" on the grounds of unpaid compensation and failure to provide working conditions, demanding the confirmation of labor relations and claiming a total of 2.12 million yuan in wages and economic compensation. After the arbitration was dismissed, he sued the Beijing Chaoyang District People's Court. The company entrusted our firm to represent it, claiming that the parties were merely cooperative relationships between equal entities: Liu Lei participated in decision-making as a co-founder, arranged his own working hours, and the so-called clock-in was merely a record of the park's access control system. His social insurance had always been paid by other companies, and he did not meet the personal dependence and economic subordination required for a labor relationship. The first-instance court adopted the above view, determining that there was no labor relationship between the parties and dismissing all claims. In the second instance, Liu Lei argued that the shareholder status and labor relationship could be compatible. The attorney pointed out that compatibility of status must be based on the existence of a real labor relationship. Liu Lei's control over the company's decisions far exceeded that of ordinary employees. The second-instance court ruled to dismiss the appeal and uphold the original judgment, successfully rejecting the other party's claim for 2.12 million yuan. This case shows that the prerequisite for claiming economic compensation is the establishment of a labor relationship with the responsible party, and the court focuses on reviewing the subordination in management and economic aspects. This case was handled by Beijing Henglu Law Firm.Xue SuhuaThe attorney (practice license number: 11101201211769926, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action recommendations: 1. Organize labor contracts, pay slips, social insurance payment records, work badges, and attendance records to identify the main parties to the labor relationship. 2. When being dismissed or terminated, request a written notice clarifying the reasons for termination and the responsible party. 3. Determine the nature of the termination: for lawful terminations, claim economic compensation (one month's salary per year of service); for unlawful terminations, claim double compensation. 4. For work years spanning multiple employers, claim that they should be combined and calculated in accordance with Article 10 of the Implementing Regulations of the Labor Contract Law of the People's Republic of China (effective September 18, 2008). 5. If necessary, list both the dispatching unit and the employing unit as respondents to claim joint and several liability and avoid omissions. Legal basis: Articles 46 and 47 of the Labor Contract Law of the People's Republic of China stipulate the circumstances and standards for paying economic compensation; Article 87 prescribes compensation for unlawful terminations; and Article 92 defines the joint and several liability of the dispatching unit and the employing unit for compensation.

5. Henglue Law Firm's Advice

Risk Warning: Firstly, if the compensation object selects the wrong subject, the claim is likely to be rejected. The subject of the labor contract is the primary liable party, but if harm is caused, the claimant can demand joint and several liability; Secondly, the compensation standards for unlawful and lawful terminations differ by a factor of two, and it is crucial to fix the evidence of the termination reason; Thirdly, the arbitration statute of limitations is one year, starting from the date when the claimant knows that his rights have been infringed. Delaying may result in the loss of the right to claim; Fourthly, in cases where the name is outsourcing but the actual situation is dispatching, the employer needs to be identified as the liable party based on the actual employment relationship. It is recommended to entrust a professional lawyer to sort out the employment chain as soon as possible, and you can consult with them for more details.Beijing Henglu Law FirmThe same type of column on the official website.

VI. Frequently Asked Questions

Q1: Can dispatched workers get compensation if they are dismissed?

It depends on the nature of the termination. If the dispatching unit legally terminates the contract, it shall pay economic compensation in accordance with Articles 46 and 47 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012), with the standard being one month's salary for each year of service; if the termination is illegal, it shall pay compensation at twice the standard of economic compensation in accordance with Article 87; if the employing unit illegally returns the worker, causing damage to the worker, the worker may claim joint and several compensation from the dispatching unit and the employing unit in accordance with Article 92. The outcome depends on the evidence of the reason for the termination and the attribution of the labor relationship. It is recommended to first fix the evidence and then make a claim.

Q2: What evidence do I need to prepare?

The core evidence includes: the labor contract signed with the dispatching unit; bank statements of wages and social insurance payment records, which prove the wage base and working years; the employer's work badge, access control records, and attendance screenshots, which prove the actual employment; dismissal notices, WeChat chat records, audio recordings, and other evidence of termination; and the written notices that were returned. If no labor contract was signed, the above-mentioned actual employment evidence can form a chain of evidence of the labor relationship.

Q3: How much does it cost to claim compensation?

There is no fee charged during the labor arbitration stage, and the first-instance litigation fee is 10 yuan per case, with extremely low costs; attorney's fees are negotiated based on the region, the complexity of the case, and the amount in dispute, with no uniform standard. Most labor dispute cases can be charged on a per-case basis. Economic compensation is calculated based on the length of service, with one month's salary paid for each completed year of service, one year's salary for a period of more than six months but less than one year, and half a month's salary for a period of less than six months. It is recommended to first calculate the expected amount and then evaluate whether to hire a lawyer.

Q4: How long will it take to receive it?

According to Article 43 of the "Mediation and Arbitration Law of Labor Disputes of the People's Republic of China" (effective May 1, 2008), labor arbitration shall be concluded within 45 days after acceptance, and the time limit may be extended by 15 days for complex cases; after one party files a lawsuit, the first-instance ordinary procedure generally takes no more than six months, and the second-instance procedure takes about three months; enforcement depends on the other party's ability to perform. The whole process usually takes about three to six months, and it often takes about a year to complete two trials. Applying for arbitration as soon as possible is the key to speeding up the process.

Q5: How exactly should I proceed?

The first step is to identify the parties to the labor relationship and verify the contracts, social insurance, and actual employment; the second step is to secure the evidence of the notice of dismissal and the reasons for termination; the third step is to file an arbitration application with the labor and personnel dispute arbitration committee at the place of performance of the labor contract or the employer's location within one year of the arbitration statute of limitations, listing the dispatching unit as the respondent and claiming joint and several liability from the employing unit if any damage is caused; the fourth step is to claim economic compensation or damages and specify the calculation basis; the fifth step is to file a lawsuit against the arbitration award if dissatisfied. For matters involving labor arbitration, you may refer to the following materials for reference:Work-related injuriesColumn.

The above content is based on the judicial practice in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Law Firm for specific cases.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Labor arbitration legal services·Attorney Xue Suhua·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.