[Direct answer]Generally, it is not recognized as a labor relationship. In the employment practices of construction projects in Beijing, migrant workers work on construction sites under the supervision of contractors, and the relationship between the two parties is mostly a labor hiring relationship. However, in the case of illegal subcontracting and contract splitting, even if they do not establish a labor relationship with the contractors, migrant workers can require the construction enterprises that illegally awarded the contracts to assume the responsibility of the employing entity. According to Article 4 of the "Notice on Establishing Labor Relationships" (issued by the Ministry of Labor and Social Security on May 25, 2005), if construction and mining enterprises award projects to organizations or individuals who do not have the qualification of an employing entity, the employing entity with such qualification shall assume the responsibility of the employing entity. Article 30 of the "Regulations on Ensuring the Payment of Migrant Workers' Wages" (implemented on May 1, 2020) also stipulates that if the subcontractors default on the wages of migrant workers, the general contractors shall pay off the wages first. In the event of work-related injuries, the contractors who illegally subcontracted the projects shall assume the responsibility of work injury insurance. For reference only.Work-related injuriesColumn.

1. Problem background and typical scenarios

Such problems are common in several situations: First, contractors verbally hire their fellow villagers to work on construction sites, pay them daily wages, and fail to sign any contracts; Second, the general contractors subcontract the labor to unqualified contractors, and after the workers are injured, all parties shirk responsibility and no one takes responsibility; Third, after the project is subcontracted repeatedly, the wages are in arrears, and the workers don't know who to seek compensation from; Fourth, when the project is suspended and the workers are dismissed, the workers have no way to claim compensation; Fifth, there are disputes over overtime pay on holidays and working in high temperatures. When handling similar cases in the Beijing area, the court usually first identifies the project contracting chain and the actual employment management entities, and then determines who should bear the responsibility for wage payment and compensation.

II. Key points of dispute

Focus One: Whether a labor relationship exists between the contractors and the workers. In most cases, the contractors are not recognized as employers, so the labor relationship is not established. Focus Two: Regarding the responsibility for employing workers in the case of illegal subcontracting, the qualified contractors shall bear the ultimate responsibility. Focus Three: Concerning the responsibility for paying wages, the general contractors shall assume the obligation to pay the migrant workers' wages in advance if the subcontractors default on the payment. Focus Four: Regarding the responsibility for work-related injuries, the contractors shall bear the work-related injury insurance liability in the case of illegal subcontracting, regardless of whether a labor relationship exists. Focus Five: Regarding the nature of the settlement between the contractors and the workers, the labor remuneration and the project payment must be distinguished. Focus Six: Regarding the issue of evidence, attendance records, payrolls, WeChat work group records, and site access cards are key to establishing the facts. Specifically, the above interpretations are based on the currently effective laws, regulations, and judicial rulings.

III. Professional analysis by Henglue Law Firm

Judging from the practical experience of lawyers handled by our firm, the focus of handling such cases lies in clarifying the chain of responsibility. Common patterns include: the general contractor subcontracts labor operations to individual contractors, who recruit, manage, and settle wages for workers. After the occurrence of wage arrears or work-related injuries, the contractors evade responsibility, and the general contractor defends against the existence of labor relations. In terms of adjudication, the court adheres to the criterion of subordination in determining labor relations, and does not fictitiously determine labor relations based on illegal employment. However, in terms of responsibility, the court protects workers through systems such as the responsibility of the employing entity, work injury insurance liability, and priority settlement of wages, to avoid leaving workers unprotected on the grounds of "no labor relations". Common pitfalls include: suing only the contractors, leading to unsuccessful enforcement after winning the case; missing the one-year time limit for work injury recognition; and disputes over wage amounts due to missing attendance and wage records. In similar cases handled by our lawyers, we usually list all responsible entities such as the general contractor, subcontractors, and contractors, and lock in the facts of illegal subcontracting through wage payment records, construction logs, and supervision and safety materials, so as to maximally expand the scope of enforceable liabilities.

IV. Practical suggestions and legal basis

Action suggestions: 1. Retain evidence that can prove employment, such as attendance records, employee badges, wage transfer records, WeChat work group records, and photos of safety helmets and work uniforms. 2. For those who have been owed wages, first claim against the general contractor and subcontractors. They can also file a complaint with the labor and social security supervision department or apply to the general contractor for advance payment in accordance with the "Regulations on Ensuring the Payment of Migrant Workers' Wages". 3. For those who have been injured, it is necessary to apply for work-related injury recognition within one year of the accident. In the case of illegal subcontracting, they can directly claim work-related injury insurance benefits from the contractor who has the qualification to employ workers. 4. When claiming compensation, list the contractors and subcontractors as jointly liable parties. 5. For disputes involving project settlement and labor fees, they can refer to the relevant provisions.Real estate transactions and construction projectsColumn. In terms of legal basis, in addition to the aforementioned notifications and regulations, the time limit for applying for work-related injury identification stipulated in Article 17 of the Work-Related Injury Insurance Regulations (amended on December 20, 2010) requires special attention. Failure to meet the deadline will result in the loss of the basis for claiming work-related injury benefits. For the key points of relevant documents, please refer to the following materials for reference.Special services and other casesColumn.

5. Henglu Law Firm's Advice

Risk Warning: Firstly, there is generally no labor relationship between the contractors and the workers, so directly applying for labor arbitration to confirm the labor relationship with the contractors is unlikely to be supported. The direction of rights protection should be aimed at the contracting units that have the qualification of employing subjects; Secondly, the one-year statute of limitations for work-related injury identification is easily missed, and during the treatment period, it is also necessary to entrust close relatives or others to apply for it in time; Thirdly, it is difficult to prove the wage standard solely with verbal agreements, and daily record-keeping directly determines the amount of compensation; Fourthly, the contractors' personal solvency is limited, so when suing, it is necessary to add the qualified units to bear the main responsibility. It is recommended to consult as soon as possibleBeijing Henglu Law FirmFor similar columns on the official website, fix the evidence and identify the correct responsible party.

VI. Frequently Asked Questions

Q1: Is there a labor relationship between migrant workers and contractors?

Generally, this is not the case. Contractors are often natural persons who do not have the qualifications to be employers. Their relationship with migrant workers is handled as a labor-hiring relationship, and labor arbitration usually does not confirm the existence of a labor relationship between the two parties. However, this does not mean that migrant workers have no protection: in the case of illegal subcontracting and contracting out, the contractors who have the qualifications to be employers shall bear the responsibility of the employer, and the migrant workers can claim back wages and compensation for work-related injuries from them, rather than just holding the contractors personally accountable. The choice of the responsible party directly determines the effectiveness of protecting their rights.

Q2: If I'm injured at a construction site and haven't signed a contract, who should I seek compensation from?

Handle the situation according to the circumstances. For cases where the contractors illegally subcontract or subcontract to contractors, the contractors with the qualification of employing workers shall bear the responsibility for work-related injury insurance, which does not require the existence of a labor relationship as a prerequisite. They should first apply for work-related injury identification, then conduct labor capacity appraisal, and finally claim work-related injury insurance benefits. For cases where the contractors are personally employed by the contractors and have no relationship with the contractors, they shall claim personal injury compensation according to the principle of fault liability in accordance with Article 1192 of the Civil Code. The key is to identify the contracting chain and lock in the responsible parties with solvency.

Q3: If the contractor absconds, who should I go to to claim my wages?

You can claim against the general contractors. According to Article 30 of the Regulations on Ensuring the Payment of Migrant Workers' Wages (effective May 1, 2020), if the subcontractors default on the wages of migrant workers, the general contractors shall pay off the wages first. After the general contractors have paid off the wages, they may seek recourse according to law. At the same time, you can file a complaint with the labor and social security supervision department of the project location, or apply for labor arbitration regarding the arrears in wages; keeping the attendance sheets, payrolls and transfer records is the key evidence for determining the amount of arrears in wages.

Q4: What evidence do migrant workers need to prepare when demanding unpaid wages?

The five key types of evidence are as follows: 1. Identification and employment evidence, such as work badges, access passes, safety helmets, work uniforms, and attendance records. 2. Wage evidence, including payrolls, transaction records, IOUs, and settlement statements. 3. Communication evidence, such as WeChat group chat records and audio recordings of conversations with contractors or project managers. 4. Project-related evidence, including construction diaries, process sign-offs, and supervision materials. 5. Testimonies from co-workers in the same workgroup. The more complete the evidence is, the smoother the process of determining the wage amount and identifying the responsible parties will be.

Q5: How long does it take for migrant workers to protect their rights?

It depends on the specific legal path. For complaints filed with the labor and social security supervision authority, according to Article 17 of the "Regulations on Labor and Social Security Supervision" (effective as of December 1, 2004), the investigation shall generally be completed within 60 working days from the date of accepting the case; for wage arrears disputes applying for arbitration, according to Article 43 of the "Mediation and Arbitration Law of the People's Republic of China on Labor Disputes" (effective as of May 1, 2008), the hearing period is 45 days, and the time limit may be extended by 15 days for complex cases; for work-related injury cases involving identification and appraisal, the overall process often takes more than half a year; and for first-instance litigation under the ordinary procedure, the time limit shall not exceed six months. For reference only.Work-related injuriesColumn.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm about specific situations.

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·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.