[Direct answer]The core of distinguishing the two is "subordination". According to Article 1 of the "Notice on Establishing Labor Relationships" (Lab and Social Security Ministry [2005] No. 12), a labor relationship is established if the following circumstances are met: both parties meet the legal qualifications as subjects; the worker is subject to the employer's labor management and engages in paid labor arranged by the employer; and the work provided by the worker constitutes an integral part of the employer's business. If it constitutes a labor relationship, the labor law systems such as social insurance payment, economic compensation, overtime pay, and dismissal protection shall apply; if it is merely a labor service relationship, it shall be handled in accordance with the rules of civil contracts, and there will generally be no social insurance or economic compensation. The name of the agreement does not change the determination, and the key lies in the actual employment. Case assessments can be conducted throughLabor arbitration and legal services for work-related injury compensationOrBeijing Henglu Law FirmCarry out the process.

1. Problem background and typical scenarios

"Whether they are employees or cooperation partners" is the first hurdle in many employment disputes. Typical scenarios include: after employment, the company never signs a labor contract and only pays monthly salaries, but denies the employment relationship when the employee leaves; the company makes employees sign "cooperation agreements" or "contracting agreements", but still requires them to clock in and out and obey the work schedule; employment forms such as retirees being rehired, students doing internships, and part-time helpers are mixed together, and the parties cannot clarify their legal identities; in the case of platform and outsourced employment, the service provider and the employer shift the blame to each other, and the injured or unpaid workers do not know who to turn to. The identity directly determines what can be claimed: under an employment relationship, employees can demand social insurance, economic compensation, double wages, and overtime pay, while under a labor relationship, disputes are mainly handled according to contractual agreements and fault rules. Many workers miss out on their rights because they fail to clarify their legal status at the outset and follow the wrong procedures or miss deadlines for claims.

II. Key points of contention

  • Determination of subordination: Personality subordination (whether to accept attendance, command, rewards and punishments), economic subordination (whether the compensation is relatively fixed and whether it relies on the unit's income), organizational subordination (whether the work belongs to the unit's business component), and how to prove these three elements with evidence.
  • Handling cases where the name and reality do not match: If the unit disguises the true employment relationship by using terms such as "service", "cooperation", or "contracting", can the actual employment relationship be identified based on the facts rather than the name of the agreement?
  • The construction of the evidence chain: When there is no signed labor contract, how can pay slips, attendance records, work documents, chat records, and other evidence be combined to meet the standards of proof in arbitration and court proceedings?

III. Professional analysis by Henglue Lawyers

The cases handled by Henglue Lawyers perfectly illustrate the typical situations on both sides of this legal boundary. On one side, there is the "cooperation-like relationship that is actually a labor relationship": In the case of the dismissal of twelve employees, a company issued a termination notice on the grounds that the recruitment procedures were found to be irregular during an internal inspection. The attorney representing the employees pointed out that the labor relationship is established from the date of employment, and a written labor contract becomes effective upon signing and stamping by both parties. The filing with the human resources and social security authorities is merely an administrative matter, and the company's rectification does not constitute a statutory reason for termination. The arbitration, first-instance, and second-instance courts successively ruled that the termination was illegal and ordered the employer to continue performing the contractual obligations—even though the employees were not formally registered and some contract renewals were incomplete, as long as there was actual employment and management, the labor relationship remained valid and fully protected. On the other side, there is the "nominal participation that is not a labor relationship": In another case handled by Henglue Lawyers, the client participated in the start-up of a company as a co-founder, signing a "Cooperative Operation Agreement" and holding a 20% virtual equity stake. The parties never signed a labor contract or paid fixed wages. The client later demanded confirmation of the labor relationship and claimed a total of 2.12 million yuan in wages and economic compensation. The attorney representing the company focused on the defense of subordination: The client independently determined working hours, and the so-called "time clock punching" was merely a record of the park's access control system. The compensation came from profit-sharing rather than fixed wages, and the client's social insurance remained with another company. The client's status was equivalent to that of a shareholder rather than an employee subject to management. Both the first-instance and second-instance courts ruled that no labor relationship existed between the parties, and all claims were dismissed. Comparing the two cases, we can see that determining a labor relationship does not depend on the name of the agreement or whether it is registered, but rather on whether there is actual management and being managed, relatively fixed compensation, and dependence on the organization of the employer's business. For enterprises needing to clarify the boundaries between cooperation and employment and standardize agreement texts, they can refer to the above analysis.Legal services for corporate commercial and contract disputesHandle them together.

IV. Practical suggestions and legal basis

Legal basis: Article 1 of the "Notice on Establishing Labor Relationships" (Labor and Social Security Ministry [2005] No. 12) stipulates three elements for establishing labor relations; Article 2 of the notice stipulates that if the employer fails to sign a labor contract with the worker, the existence of labor relations between the two parties can be determined by reference to pay slips, work badges and attendance records, recruitment registration forms, and the testimonies of other workers. Article 7 of the "Labor Contract Law of the People's Republic of China" stipulates that labor relations are established from the date of employment, Article 10 requires that written labor contracts should be concluded when establishing labor relations, and Article 82 stipulates that if a labor contract is not concluded within one month but less than one year, the employer shall pay double wages. Article 27 of the "Labor Dispute Mediation and Arbitration Law of the People's Republic of China" stipulates a one-year arbitration statute of limitations. Practical suggestions: Workers should establish their own evidence lists - monthly fixed-date and relatively fixed-amount salary bank statements are the most powerful core evidence; attendance clock records such as Dingding, work badges and uniforms, chat records in work groups, shift schedules, and business documents on behalf of the company jointly constitute proof of management subordination; the party to the labor relationship should sign a written agreement, clarifying the settlement method, delivery of results, and responsibility for injuries, and retain acceptance and payment certificates for important projects. Claiming labor relations and claiming labor remuneration follow different procedures, with the former requiring first determining the nature of the relationship and then taking action.

5. Henglu Law Firm's Reminder

Here's a message for workers: Your identity is determined by facts, not by a piece of paper. It doesn't matter what kind of agreement the company asks you to sign. What matters is whether you accept its attendance management system, whether you receive relatively fixed compensation, and whether the work you do is related to its business. If you find yourself being "cooperated" with, collect your pay slips and attendance evidence as soon as possible. For those who haven't signed a written contract, pay attention to the statute of limitations for double pay. If you get injured, first identify the compensation subject according to the correct procedure. Here's a message for employers: Avoiding employment responsibilities under the guise of labor services and cooperation may save you a little money in the short term, but you'll have to pay double pay, economic compensation, and even compensation for illegal dismissal. Standardizing employment documents is the only way to minimize losses. This case was handled by Beijing Henglue Law Firm.Feng NaThe series of cases handled by the lawyer (practice license number: 11101202211562923, subject to the document issued by the judicial administrative organ) show that the debate over the nature of the case persists throughout the process. It is recommended to engage a professional lawyer to intervene in the early stage of the dispute. The compliance review of a complex employment structure can be carried out throughSpecial services and other case-related servicesDocking.

Q1: If no labor contract has been signed, how can one prove the existence of a labor relationship with the company?

According to Article 2 of the "Notice on Establishing Labor Relationships" (Labor and Social Security Ministry No. 12, 2005), the following evidence can be organized: 1. Payroll receipts or records, especially bank transaction records showing regular monthly transfers; 2. Identification documents such as work badges, service badges, or employee ID cards; 3. Attendance records or shift schedules; 4. Recruitment registration forms or employment registration forms; 5. Testimonies from other employees; 6. Chat records from work groups or business documents signed on behalf of the company. The evidence must paint a complete picture of your acceptance of the company's management and engagement in paid work arranged by the company. According to Article 82 of the Labor Contract Law of the People's Republic of China, if the employment period exceeds one month but is less than one year and no written contract is signed, you may also claim double monthly wages. Note that this claim is subject to a one-year arbitration statute of limitations and should be raised as soon as possible.

Q2: What is the relationship between retired re-employed personnel and their employers?

It is generally a labor relationship. According to Article 32 of the "Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trial of Labor Disputes Cases (I)", if an employment dispute arises between an employer and a person who has already legally enjoyed old-age insurance benefits or received a pension, it shall be handled as a labor relationship. Returned employees are not subject to labor legal systems such as social insurance payment, economic compensation, and compensation for unlawful termination. Their remuneration and termination conditions shall be implemented in accordance with the returnee agreement, and injuries shall generally be handled in accordance with the rules of personal injury compensation. If the employer is at fault, it shall bear the liability for compensation. It should be noted that if a person has reached the retirement age but has never enjoyed old-age insurance benefits or received a pension, the identification of the nature of employment varies from place to place. In some regions, they are still protected according to labor relations or some labor standards. It is recommended to evaluate the case based on the local adjudication standards and the insured status.

Q3: Do internships and part-time jobs conducted by students at school constitute labor relations?

Generally, it is not considered employment. Students who work part-time during their spare time or participate in internships are usually not regarded as employees, and no labor relationship is established between them and the employing units. Their injuries during the internship are generally not covered by work injury insurance, but they can claim personal injury compensation based on fault liability. The school or internship unit is responsible for assuming a corresponding share of the liability. However, there are exceptions: students who are about to graduate and are employed full-time, subject to attendance management, receive fixed salaries, and engage in on-the-job work may be recognized as having a labor relationship in practice. The employer's defense that "they are still students" may not necessarily hold water. Before the internship, a written agreement should be signed to clarify the subsidy standards, working hours, and liability for injuries. For those employed for employment purposes, it is important to keep attendance and salary records to avoid disputes over the nature of the relationship.

Q4: If the company asks me to sign a "cooperation agreement", can the employment relationship still be recognized?

Yes, the key lies in the actual employment relationship. The name of the agreement does not affect the determination of the labor relationship. If a cooperation agreement or a contract for hire is signed, but the worker actually accepts the company's attendance management, obeys the scheduling commands, receives a relatively fixed salary every month, and the work performed belongs to an integral part of the company's business, they still meet the three elements of Article 1 of the "Notice on Determining Labor Relationships". In this case, the worker can be recognized as an employee. When making such a claim, the worker should submit attendance records, fixed transfer records, records of the work group, and evidence of the implementation of the company's rules and regulations to prove their subordinate status. If the company only uses the title of the agreement to defend against the claim, the defense will generally not be accepted. Conversely, for a truly independent operator who is paid based on results and bears the risks of profits and losses, even if the company denies their employment status, it will be difficult to recognize them as employees. In this case, both parties should claim their rights in accordance with the contract terms. Before making such a determination, the worker should first check whether the evidence of subordinate status is sufficient.

Q5: What's the difference in compensation treatment between labor relations and service relations?

The main differences are reflected in four aspects. First, social insurance: Under the employment relationship, the employer must pay for five types of social insurance. Under the labor service relationship, there is no mandatory obligation to pay, and both pension and medical insurance need to be arranged by the individual. Second, termination compensation: Under the employment relationship, dismissal requires statutory grounds. If the dismissal is illegal, the employer must pay compensation at twice the standard of economic compensation. Even in legal dismissal cases, most situations still require the payment of economic compensation. Under the labor service relationship, there is generally no economic compensation, and the parties can only claim compensation according to the agreement or actual losses. Third, work injury protection: Under the employment relationship, work-related injuries are covered by work injury insurance, with benefits paid by the fund and the employer according to regulations. Under the labor service relationship, injuries are handled as personal injury compensation, requiring proof of fault and with different compensation items and calculation standards. Fourth, labor standards: Overtime pay, minimum wage, and paid annual leave only apply to employment relationships. The debate over the nature of the relationship often translates into a dispute over compensation, so evidence preparation should focus on establishing the nature of the relationship.

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·Attorney Feng Na·Beijing Henglu Law Firm