[Direct answer]The labor dispatch workers are returned by the employing units. First, it is necessary to determine whether the return is legal. The statutory circumstances of return are enumerated in Article 65 Paragraph 2 of the Labor Contract Law of the People's Republic of China (implemented on January 1, 2008 and amended in 2012) and Article 12 of the Interim Regulations on Labor Dispatch (implemented on March 1, 2014), such as the worker's fault, incompetence, the employing unit's bankruptcy and dissolution, and the termination of the dispatch agreement. The return beyond the statutory circumstances is illegal. After being returned, the labor relationship still exists with the dispatch unit. During the period without work, the dispatch unit shall pay the worker's remuneration at not less than the local minimum wage on a monthly basis. If the illegal return causes damage, the employing unit and the dispatch unit shall bear joint and several liability for compensation; if the worker is illegally dismissed, he/she may claim for continued performance of the contract or compensation. It is recommended to first fix the evidence such as the return notice and then apply for labor arbitration. The process can be referred to for reference.Labor arbitration and legal services for work-related injury compensationor consultBeijing Henglue Law Firm.

I. Problem Background and Typical Scenarios

There is a tripartite relationship between the dispatching unit, the employing unit, and the worker in labor dispatch: the dispatching unit is the employer listed on the labor contract, and the employing unit is the actual workplace where the worker performs their duties. Scenarios of being sent back are very common: when a project ends, during off-season layoffs, when the employing unit downsizes its staff or terminates its operations, the employing unit may send back the workers with a simple notice; some workers are left unemployed for a long time after being sent back, while others are terminated by the dispatching unit or are forced to sign "voluntary resignation" documents. Due to the separation of legal relationships, many dispatched workers are unclear about who to claim their wages from, whether the sending back is legal, or whether they can still receive compensation after being sent back. When seeking legal redress, they often target the wrong party or miss the statute of limitations.

II. Key points of contention

  • The dispute over the legality of returns: The statutory circumstances for returns are exhaustively listed. If the employing unit returns the worker for reasons such as "position elimination" or "cost reduction and efficiency improvement", which do not fall under the statutory circumstances, it constitutes an illegal return. The losses caused by this can be claimed for joint and several compensation.
  • The dispute over treatment during the return period: During the period of no work after being returned, the dispatching unit shall pay the worker's salary at a rate not lower than the local minimum wage standard. In practice, the practice of long-term waiting for work with no pay and only paying social insurance without paying the worker's salary is generally illegal.
  • Resolving the dispute over dismissal and compensation: The dispatching unit directly terminates the contract on the grounds of "being returned", or lowers the conditions when re-dispatching and forces the workers to leave on their own. This involves the determination of the legality of the dismissal and economic compensation.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers have observed three common types of disputes in labor dispatch cases: First, when the employing unit terminates the contract or adjusts its operations, it may verbally notify the workers to return without issuing a written return notice, making it difficult for the workers to prove the time and reason for the return. It is recommended that workers immediately request a written confirmation upon receiving the return notice and fix the evidence through methods such as communicating in work groups and recording conversations; Second, after being returned, the workers may enter a "neglected" state, with the dispatching unit neither reassigning them to new posts nor paying their wages, attempting to delay until the workers quit voluntarily. In this case, workers should promptly send a written notice demanding payment for the period without work, and the record of the notice itself serves as evidence of their rights; Third, the dispatching unit may unilaterally terminate the contract on the grounds that the workers have been "returned", transferring the employing unit's operational risks to the workers. Whether the termination is legal depends on whether the grounds and procedures comply with the provisions of the Labor Contract Law; If the employing unit's illegal return causes damage to the workers, the employing unit and the dispatching unit shall bear joint and several liability for compensation in accordance with Article 92 of the Law. In cases involving outsourcing, dispatching, and mixed employment by multiple entities, identifying the employing entity and the responsible entity is more complex. It is recommended to use the following methods to clarify the responsibilities of each party:Special services and other case-related servicesThe team evaluates the employment relationship before deciding on the arbitration target.

IV. Practical suggestions and legal basis

Legal basis: Article 58 of the Labor Contract Law of the People's Republic of China (implemented on January 1, 2008 and amended in 2012) clearly stipulates that the dispatching unit is the employing unit and shall pay the labor remuneration on a monthly basis. During the period without work, the dispatched workers shall be paid on a monthly basis at a rate not lower than the minimum wage standard prescribed by the people's government of the dispatching unit's location; Article 65 paragraph 2 stipulates that the employing unit may return the workers to the dispatching unit only when the dispatched workers meet the circumstances stipulated in Article 39 and Article 40 paragraphs 1 and 2 of the Law; Article 92 establishes the joint and several liability for compensation of the employing unit and the dispatching unit when the employing unit causes damage to the dispatched workers. Article 12 of the Interim Regulations on Labor Dispatch (implemented on March 1, 2014) lists the circumstances under which the employing unit may return the workers: when the employing unit meets the circumstances stipulated in Article 40 paragraph 3 and Article 41 of the Labor Contract Law; when the employing unit is declared bankrupt according to law, has its business license revoked, is ordered to close down, is dissolved, or decides to dissolve in advance or no longer continues to operate after the expiration of its business term; and when the labor dispatch agreement expires and terminates. Practical advice: Retain the dispatching agreement or labor contract, payroll records, attendance records, and return notifications; after being returned, first require the dispatching unit to rearrange positions and demand payment in writing; when the contract is terminated, demand a written notice of termination and state the reasons; the statute of limitations for claiming rights is one year (Article 27 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China, implemented on May 1, 2008). For issues related to wage recovery and subsequent enforcement, please refer to the relevant provisions.Legal services for creditor-debtor disputes and enforcement cases.

5. Henglu Law Firm's Reminder

Being sent back does not mean the termination of the labor relationship. The first step should always be to stabilize the labor relationship with the dispatching unit and secure evidence of the send-back, rather than rushing to find the next job and leaving immediately. Three tips: First, do not sign any documents stating "voluntary resignation" or "resignation for personal reasons", otherwise, your pay during the unemployment period and economic compensation may be lost; Second, if the unit lowers the original conditions when re-dispatched, you can refuse. At this time, you still have the right to claim economic compensation if the contract is terminated; Third, the payer of wages and compensation is the dispatching unit. If the employing unit violates the law, you can list it as a defendant and claim joint and several liability. If you are currently facing situations such as being sent back, waiting for a new assignment, or being dismissed, it is recommended that you consult a professional lawyer as soon as possible with your dispatching agreement and salary records, and you can first file a lawsuit against the dispatching unit through the labor arbitration committee.Beijing Henglu Law FirmUnderstand the approach to handling similar cases.

Q1: After being returned by the employing unit and having no work to do, who will pay my salary during this period?

It is issued by the dispatching unit. The labor relationship exists between the worker and the dispatching unit, and the return does not change the labor relationship. According to Article 58 of the Labor Contract Law and Article 12 of the Interim Regulations on Labor Dispatch (implemented on March 1, 2014), after being returned, during the period without work, the dispatching unit shall pay remuneration at a monthly rate not lower than the local minimum wage standard, and social insurance shall continue to be paid. It is illegal for the dispatching unit to stop paying wages on the grounds of waiting for a job or not arranging work. The worker may issue a written reminder and apply for arbitration to recover the arrears. If the arrears are serious, the worker may also be forced to terminate the labor relationship and claim economic compensation on this basis.

Q2: The employing unit said that my "position was cancelled" and dismissed me. Is that legal?

It depends on whether the circumstances meet the legal requirements. According to Article 12 of the "Interim Regulations on Labor Dispatch" (implemented on March 1, 2014), the employing unit may only return the dispatched workers in the following situations: (1) when the circumstances specified in Article 40(3) and Article 41 of the Labor Contract Law occur (such as major changes in objective circumstances, layoffs in accordance with the law); (2) when the employing unit is declared bankrupt, has its business license revoked, is ordered to close down, is dissolved, is prematurely dissolved, or its business term expires; or (3) when the dispatch agreement expires and is terminated. Returning the dispatched workers solely on the grounds of business adjustment or cost reduction and efficiency improvement does not meet the legal requirements and constitutes an illegal return. If this causes damage to the workers, the employing unit and the dispatching unit shall bear joint and several liability for compensation in accordance with Article 92 of the Labor Contract Law.

Q3: If the dispatch company directly terminates the contract with me after the return, what can I claim?

It depends on the specific circumstances. If the dispatching unit unlawfully terminates the contract, the worker may, in accordance with Articles 48 and 87 of the Labor Contract Law, demand that the contract be continued or that the dispatching unit pay compensation at twice the standard of economic compensation; if the dispatching unit reassigns the worker to a new position and maintains or improves the working conditions, but the worker refuses to report to work without a valid reason, the dispatching unit may terminate the contract without paying compensation; if the dispatching unit reduces the working conditions and reassigns the worker, but the worker disagrees, the worker still has the right to claim economic compensation in accordance with Articles 46 and 47 of the Labor Contract Law when terminating the contract. The key evidence is the termination notice and the notice of reassignment. When receiving the documents, take photos to preserve them first, and then decide whether to sign for receipt or reply.

Q4: What evidence should be prepared for such cases, and how should the respondents be listed?

Preparation of evidence: labor contracts signed with the dispatching unit, dispatching information between the dispatching unit and the employing unit (work badges, access control systems, shift schedules), bank transaction records of wages, social insurance records, attendance and work group records, return notifications or audio recordings of verbal returns, and termination notifications. When arbitrating, the dispatching unit will be listed as the respondent; if the employing unit illegally returns the worker or causes damages, it will be listed as a co-respondent to claim joint and several liability (Article 92 of the Labor Contract Law). If the wage payer, social insurance contributor, and management party are inconsistent, it is necessary to sort out the three parties in advance to form an evidence chain before filing a case, so as to avoid listing the wrong parties and causing repeated procedures.

Q5: Is there a fee for applying for arbitration in labor dispatch disputes, and how long will it take to get the result?

There is no charge. According to Article 53 of the "Mediation and Arbitration Law of Labor Disputes of the People's Republic of China" (effective May 1, 2008), labor dispute arbitration is free of charge, and the funds are guaranteed by the government. The arbitration tribunal shall conclude the case within 45 days from the date of acceptance, and the case may be extended by no more than 15 days with approval if the case is complex (Article 43). If the party is not satisfied with the arbitration award, it may file a lawsuit within 15 days from the date of receipt of the award. Dispatch cases often involve two respondents and the main disputants, so the actual period may be longer than ordinary cases. It is recommended to list all the main parties and submit all the evidence at the time of filing the case to reduce the need for supplementation and extension, and to pay attention to the one-year arbitration statute of limitations.

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 Henglue Law Firm