[Direct answer]There are two different situations: for those who have already legally enjoyed pension insurance benefits or received retirement pensions and are reemployed, the employment relationship between them and the employing units shall be handled in accordance with the rules of civil contracts; for those who have reached the statutory retirement age but have not enjoyed pension insurance benefits, the labor contract shall be terminated in accordance with Article 21 of the Implementing Regulations of the Labor Contract Law of the People's Republic of China. The nature of the employment relationship after that varies from region to region. In most regions, it is handled as a service relationship, while in some cases, it is still protected as a labor relationship. There are significant differences in compensation for injuries and dismissal compensation between the two types of situations. The specific classification of each case can be determined throughLabor arbitration and legal services for work-related injury compensationOrBeijing Henglu Law FirmEvaluation.

I. Problem Background and Typical Scenarios

China's delayed retirement policy is gradually being implemented, and the number of people over the retirement age who continue to work is increasing. Common scenarios include: retired employees being rehired by their former or new employers to continue working in management, technical, or logistics positions; the widespread use of older workers in positions such as cleaning, security, nanny, and chef; migrant workers who reach retirement age but cannot receive pensions due to insufficient payment periods, forcing them to continue working; and employees who reach retirement age but have not yet completed 15 years of social insurance payments, with their employers directly suspending payments and terminating contracts. These workers' main concerns focus on three points: whether their relationship with their employers constitutes an employment relationship or a service relationship; whether injuries at work can be recognized as work-related injuries and who should compensate them; and whether they are entitled to economic compensation when being laid off. Different legal definitions apply to these situations, and the compensation standards and legal remedies vary completely, which is the core of disputes over employing older workers.

II. Key points of dispute

  • Relationship qualification: How should over-age workers who have received pensions and those who have not received pensions be qualified respectively? Can over-age workers who have not participated in social insurance and not received benefits claim support for labor relations? There are differences in the opinions of arbitration tribunals and courts in different regions on this issue.
  • Work-related injuries and compensation for injuries: If an elderly worker is injured during work, they can either claim compensation through work-related injury insurance or seek personal injury compensation. The responsibilities of the parties involved and the items of compensation differ significantly in the two cases.
  • Compensation and dismissal: When over-aged workers are owed wages or dismissed, can they claim double wages, economic compensation, or damages under labor law, or can they only seek accountability according to the contract provisions?

III. Professional analysis by Henglue Lawyers

When handling cases involving age-related issues and the determination of labor relationships, Henglue Lawyers adhere to the principle of "first defining the nature of the relationship, then formulating a strategy". According to the law: Article 44 Paragraph 2 of the Labor Contract Law of the People's Republic of China stipulates that the labor contract shall terminate when the employee begins to enjoy basic pension insurance benefits in accordance with the law; Article 21 of the Implementing Regulations of the Labor Contract Law of the People's Republic of China further stipulates that the labor contract shall terminate when the employee reaches the statutory retirement age; Article 32 of the Interpretation of the Supreme People's Court on the Application of Law in the Trials of Labor Disputes explicitly states that if an employer and its recruited employees who have already legally enjoyed pension insurance benefits or received retirement pensions have a labor dispute, the relationship shall be treated as a service relationship. Accordingly, the reemployed personnel who have already received pensions maintain an equal subject relationship with the employer in terms of compensation, dismissal, and injury compensation, which primarily depends on the parties' contractual agreements and civil law rules. For groups who have reached the retirement age but have not enjoyed pension insurance benefits, there are two interpretations in practice: one holds that the labor contract terminates upon reaching the retirement age, after which the relationship shall be treated as a service relationship; the other holds that if the employee has not legally enjoyed pension insurance benefits and continues to work in the original position, they may still be protected under the labor relationship. In most regions, elderly workers who have not established social insurance relationships are treated as service relationships, with significant differences in individual cases. The determination of labor relationships follows a well-established set of standards. In a case handled by Henglue Lawyers, a company unilaterally issued termination notices to twelve employees on the grounds of irregular recruitment procedures. The lawyer argued that the labor relationship was established from the date of employment, that registration was not a prerequisite for the contract's effectiveness, and that rectification did not constitute a statutory reason for termination. Both the arbitration, first-instance, and second-instance courts ruled that the termination was illegal and ordered continued performance, demonstrating the strong protection afforded to workers once the labor relationship is determined. Conversely, non-subordinate cooperative relationships do not constitute labor relationships: In another case handled by Henglue Lawyers, the client claimed to have confirmed a labor relationship and demanded over 2 million yuan in wages and economic compensation as a co-founder participating in company operations, holding virtual equity and receiving compensation based on profit-sharing, without being subject to the company's attendance management. Both the first-instance and second-instance courts rejected the claim on the grounds of lacking personal and economic subordination. Similarly, disputes over age-related employment should review the actual state of management and compensation rather than solely focusing on age.

IV. Practical suggestions and legal basis

At the legal basis level: Article 44 Paragraph 2 and Article 46 Paragraph 6 of the Labor Contract Law of the People's Republic of China stipulate the termination of labor contracts and economic compensation arrangements when workers begin to enjoy basic pension insurance benefits in accordance with the law; Article 21 of the Implementing Regulations of the Labor Contract Law of the People's Republic of China stipulates that labor contracts terminate when workers reach the statutory retirement age; Article 32 of the Interpretation of the Supreme People's Court on Legal Issues in the Trials of Labor Disputes determines that workers who have already received pensions shall be treated in accordance with the labor relationship. At the practical advice level: When employing elderly workers, employers should require them to sign written employment agreements that specify the work content, remuneration standards, payment schedules, injury handling procedures, and termination conditions, avoiding oral agreements. Employers should also pay attention to preserving work badges, shift schedules, wage transfer records, and work communication records to prove the employment facts and remuneration levels. In the event of injury accidents, employers should promptly seek medical treatment and retain medical records and expense receipts. They should first determine whether the employer has purchased work-related injury insurance or accident insurance for the workers before choosing between applying for work-related injury insurance or pursuing personal injury compensation. If workers are owed wages, they can recover the amounts according to the agreement and resolve disputes through arbitration or litigation if necessary. Employers, on the other hand, should purchase commercial insurance such as employer liability insurance and accident insurance to mitigate risks and standardize employment documents.

5. Henglue Law Firm's Advice

Over-age employment is not a lawless zone, but the path to protecting rights must be chosen correctly. For re-employed personnel who have already received pensions, the focus should be on signing detailed agreements and clearly stipulating rules regarding compensation, injuries, and termination; for workers who have not yet received pensions but are still working, they should promptly verify their insurance status and assess whether they can make up for the payments to obtain pension and work injury protection. After an injury, they should seek professional advice as soon as possible to avoid missing the deadline for applying for work injury recognition. Regardless of the situation, the preservation of employment-related evidence determines the success or failure of protecting rights. This case was handled by Beijing Henglu Law Firm.Feng NaThe series of labor disputes handled by the lawyer (practice license number: 11101202211562923, subject to the document issued by the judicial administrative organ) reflect the characteristic that once the labor relationship is identified, the workers' rights will be fully protected. For example, if you or your family are facing issues such as the identification of employing workers over the age limit or compensation for injuries, it is recommended to consult and evaluate the situation as soon as possible.

Q1: If a person who has already received a pension is rehired, does he/she sign a labor contract?

No. According to Article 32 of the "Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trial of Labor Disputes", if an employer and a person it has recruited who has already legally enjoyed old-age insurance benefits or received a pension have a labor dispute, the people's court shall handle it as a labor relationship. Therefore, a labor relationship is established between the rehired personnel and the unit. The two parties can sign a rehiring agreement or a labor contract, and the remuneration, working hours, vacation, and termination conditions shall be implemented in accordance with the agreement. The economic compensation, double wages, and compensation for unlawful termination systems in the Labor Contract Law shall not apply. If the rehired personnel are injured, they shall generally be handled in accordance with the rules of personal injury compensation. If the unit is at fault, it shall bear corresponding responsibilities. If the unit has purchased accident insurance or employer's liability insurance, it may apply for compensation according to the insurance contract. It is recommended to clarify the terms of the agreement item by item before rehiring.

Q2: If a person reaches retirement age but has not received their pension yet, does continuing to work constitute an employment relationship?

This is the most controversial issue in the employment of elderly workers. According to Article 21 of the Implementing Regulations of the Labor Contract Law of the People's Republic of China, the labor contract shall terminate when the worker reaches the statutory retirement age. As for the nature of the employment relationship after the termination, the judicial interpretations vary from region to region: most regions consider that a labor service relationship is formed thereafter, and the rights and obligations of both parties shall be handled in accordance with the agreement and civil rules; some regions also treat those who have not enjoyed pension insurance benefits, have not received retirement pensions, and continue to provide normal labor as having a labor relationship or granting them partial labor law protection. In practice, the determination should be based on the first employment time, social insurance payment situation, and local judicial interpretations. It is recommended that such workers actively verify the conditions for insurance participation and benefit receipt, and when disputes arise, consult a lawyer to evaluate the nature of the relationship and choose the correct channel for arbitration or civil litigation.

Q3: If an over-age worker gets injured at work, how will they be compensated?

There are two approaches. For elderly individuals who have already participated in work injury insurance, some regions allow elderly workers to enroll in work injury insurance separately or through specific programs. In the event of an accident-related injury, they can apply for work injury recognition and receive compensation according to work injury insurance benefits. For those who have not enrolled in insurance, they generally cannot follow the work injury insurance process and can instead claim medical expenses, loss of income, nursing care expenses, and disability compensation from their employer or the infringer through personal injury compensation. The court will determine liability based on the fault of both parties. If the employer has promised to cover all medical expenses or purchased accident insurance or employer liability insurance, they can claim compensation according to the agreement or insurance policy. After an injury, the victim should seek medical treatment immediately, keep medical records and receipts, and note that the statute of limitations for personal injury compensation is three years. Additionally, there are strict time limits for applying for work injury recognition. It is advisable to consult a lawyer as soon as possible to determine the appropriate approach.

Q4: Can over-aged employees who are dismissed claim economic compensation or damages?

For elderly workers handled according to labor relations, the economic compensation and compensation for illegal dismissal systems stipulated in the Labor Contract Law do not apply. Whether they can receive compensation for being dismissed early mainly depends on whether there is an agreement between the two parties. If there is no agreement, they can claim compensation from the other party for the actual losses caused by the early termination, but the amount is usually lower than the labor law standards. If the case is recognized as a labor relationship, for example, if they have not enjoyed pension insurance benefits and are protected according to local labor relations laws, disputes such as dismissal and unpaid wages can be claimed for economic compensation or compensation according to Articles 46, 47, and 87 of the Labor Contract Law of the People's Republic of China. Therefore, it is crucial to first determine the nature of the relationship and then make claims: after being dismissed, they should keep the dismissal notice, wage records, and employment evidence. They can consult a lawyer to evaluate the nature of the relationship according to local standards and then decide whether to pursue arbitration or litigation.

Q5: Are the wages and overtime pay of elderly workers protected by law?

They are protected, but the methods of protection differ. Whether it is an employment relationship or a labor service relationship, the right to receive compensation for labor is protected by law. For those who are owed compensation, elderly workers can sue for recovery based on employment agreements, attendance records, and salary transfer certificates, and claim interest on arrears or breach of contract liability if agreed upon. The difference is that, in the case of a labor service relationship, basic labor standards such as overtime pay, minimum wage, and paid annual leave generally do not apply directly. Overtime compensation must be explicitly stipulated in the agreement. In the case of protection under an employment relationship, the aforementioned labor standards still apply. It is recommended that elderly workers clarify working hours and overtime compensation in writing when they are hired, keep records of their work schedules and workloads during their employment, and first issue a written notice of default before seeking legal redress. The completeness of evidence often determines the outcome of the recovery process.

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