[Direct answer]It can be identified. When arbitrating or reviewing the nature of employment by the court, they do not focus on the written contract, but on the actual employment relationship: if the employer directly recruits, commands, checks attendance, and pays wages, settles accounts by headcount or working hours, and the contractor does not actually manage the employees, the nominal "outsourcing" may be identified as labor dispatch; if the management traces are closer to direct employment, it may even be directly determined that there is a labor relationship between the workers and the employer. The core basis is Article 66 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012) regarding the dispatch positions and employment forms, as well as Articles 3 and 4 of the Interim Regulations on Labor Dispatch (implemented on March 1, 2014). Workers can claim their rights based on management traces and wage and social insurance records, and can refer to the above provisions for reference.Work-related injuriesColumn.

I. Problem Background and Typical Scenarios

Such disputes over identification are common in several situations: First, the enterprise avoids the restrictions or proportion requirements on dispatched positions by packaging the dispatch as outsourcing; Second, the contractor is just a "shell company" without business qualifications or management personnel, and all employees are directed by the contractor; Third, the settlement is based on per-person payment rather than performance-based payment; Fourth, the workers receive documents from both parties at the same time, and both parties shift the blame on each other during arbitration; Fifth, the responsible party for work-related injuries is unclear. Both the enterprise and the workers may be involved in litigation, and the enterprise can refer to relevant regulations for compliance matters.Business and contract disputes in enterprisesThe column. In the Beijing area, the substantive review of cases involving "outsourcing in name but actual dispatching" by arbitration and courts has become a common practice.

II. Key points of contention

Focus One: Substantive review of the nature of employment. Who hires, who manages, and who pays are the three key factors. Focus Two: Settlement methods. Settling by headcount and working hours points to dispatching, while settling by results points to outsourcing. Focus Three: Management authority boundaries. If the contractor directly conducts attendance and imposes rewards and punishments, it exceeds the scope of the outsourcing relationship. Focus Four: Contractor qualifications and actual operations. Unqualified or shell companies are prone to being exposed and identified. Focus Five: Responsibility sharing after being identified as dispatching. The dispatching unit and the employing unit shall bear joint and several liability for any harm caused to the workers. Focus Six: Whether a direct labor relationship with the contractor can be identified requires a comprehensive assessment of recruitment, management, and compensation. Specifically, the determination shall be based on currently effective laws, regulations, and judicial rulings.

III. Professional analysis by Henglue Lawyers

From the practical experience of lawyers handled by our firm, the success or failure of the determination depends on the completeness of the evidence chain: workers claiming "false outsourcing" should focus on fixing the communication records of the employer directly recruiting them, daily work arrangements and attendance screenshots, the salaries paid in the employer's name or the payroll records issued on behalf of the employer, wearing the employer's work badge, traces of applying the employer's rules and regulations, and clues of settlement based on headcounts. In the judicial practice of Beijing, when the three facts of shell contractors, deep management by the employer, and settlement based on headcounts overlap, the likelihood of being identified as labor dispatch significantly increases. A common misunderstanding is to give up just by submitting a contract named "outsourcing", or to only focus on the payroll records while ignoring the management traces. In fact, management evidence is often more convincing than financial evidence. Enterprises should also note that if the management relationship is not truly transferred when forcibly "outsourcing", it may still be identified as dispatch employment and face rectification.

IV. Practical suggestions and legal basis

Action recommendations: First, collect evidence systematically along the four lines of "recruitment - management - compensation - settlement"; Second, after being identified as a dispatched worker, you can simultaneously file requests for equal pay for equal work, overtime pay, and work-related injury benefits; Third, if a direct labor relationship exists and the employer defaults on wages, you can simultaneously claim unpaid wages and economic compensation; Fourth, if the enterprise's employment model needs to be rectified, it is advisable to conduct a compliance assessment simultaneously, and relevant reference materials can be consulted for this purpose.Business and contract disputes in enterprises1. The column; 2. The fifth point is to pay attention to the one-year arbitration statute of limitations, which starts from the date when the right holder knows that his rights have been infringed. 3. In terms of legal basis, Article 57 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012) stipulates that engaging in labor dispatch business requires administrative approval, and Article 66 stipulates that dispatch is limited to temporary, auxiliary, and substitute positions; 4. Article 4 of the Interim Regulations on Labor Dispatch (implemented on March 1, 2014) stipulates that the number of dispatched workers shall not exceed 10% of the total number of employees; 5. Article 770 of the Civil Code of the People's Republic of China (implemented on January 1, 2021) stipulates that the contract for contracted work takes the delivery of the work results as the object, which can be used as a reference for distinguishing outsourcing from labor dispatch.

5. Henglu Law Firm's Advice

Risk Warning: First, determining whether it is "fake outsourcing" is a factual dispute, and if there is insufficient evidence, it may still be handled according to the contract name; Second, even if it is determined to be dispatching, the labor relationship still exists with the dispatching unit, and the party claiming economic compensation needs to choose the right counterparty; Third, recovering unpaid wages and work-related injury benefits is subject to a one-year arbitration statute of limitations, and delaying it will result in the loss of the right to win the arbitration; Fourth, if the enterprise's "transfer to outsourcing" is not handled properly, it may face administrative penalties and joint compensation risks. It is recommended to sort out the evidence as soon as possible and seek advice if necessary.Beijing Henglue Law FirmThe same category on the official website.

VI. Frequently Asked Questions

Q1: Can an arbitration request regarding a situation where outsourcing is falsely claimed as dispatch be supported?

It's possible. Arbitration and courts review the employment relationship based on the actual circumstances, rather than the name of the written contract. If it can be proven that the employer directly recruits, commands, checks attendance, pays wages, and settles accounts based on the number of employees, the nominal outsourcing can be identified as labor dispatch; if the contractor is a shell company with strong management traces, it may even be directly determined that a labor relationship exists with the employer. There are precedents of such rulings in the Beijing area. The key lies in whether the evidence is complete and can corroborate each other.

Q2: What evidence do I need to prepare to prove that what's labeled as "outsourcing" is actually "dispatched labor"?

The focus is on collecting four categories of information: First, the recruitment process, including records of interviews, employment notifications, and job assignments. Second, the management process, including attendance records, shift schedules, work badges, rules and regulations, and reward and punishment notifications. Third, the compensation process, including the main body of wage payments, payment records, and records of personal income tax and social insurance payments. Fourth, the settlement process, including contracts based on headcounts or hourly rates and reconciliation statements. These four lines of evidence corroborate each other, providing a more reliable basis for identification and verification.

Q3: How much does it cost to litigate a case like this?

Labor arbitration is free of charge; the acceptance fee for the first instance of litigation is 10 yuan per case. The attorney's fee is determined through negotiation based on the difficulty of collecting evidence and the amount of the claim, with no uniform standard. The core costs of such cases lie in evidence compilation and the design of representation strategies. Most disputes can be resolved at the arbitration stage. It is recommended to conduct an evidence evaluation first before deciding whether to hire a lawyer, to avoid making blind investments.

Q4: How long does the process of identifying a fake outsourcing contract take?

After applying to the labor and personnel dispute arbitration committee, the case is generally concluded within 45 days, and the period may be extended by 15 days if the case is complex. If the party is not satisfied with the arbitration award and files a lawsuit, the first-instance ordinary procedure generally concludes within six months, the summary procedure within three months, and the second-instance procedure within about three months after the appeal. If the case also involves matters such as work-related injury identification or social insurance retroactive payment, the period will be extended accordingly, and the overall duration is usually between several months and one year.

Q5: What should I do if I'm a victim of false outsourcing and actual dispatch, and my rights and interests are damaged?

The first step is to fix the evidence along four lines: recruitment, management, compensation, and settlement; the second step is to apply for labor arbitration, claiming to confirm the nature of employment and claiming unpaid wages, equal pay for equal work, work-related injury benefits, or economic compensation; the third step is to file a complaint with the labor supervision department if there are violations in the dispatch process; the fourth step is to file a lawsuit against the arbitration decision if dissatisfied; and the fifth step is to entrust professional lawyers to formulate strategies for complex cases, which can be referred to for reference.Work-related injuriesColumn.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

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

Disclaimer: This article is compiled based on the current effective laws and regulations and publicly available 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.