[Essential Viewpoint]

      Is there a labor relationship between the intern and the unit? There are major disputes in labor law theory and judicial practice, and there are mainly the following two views:

     1. The interns and the employer do not constitute a labor relationship. This view is based on Article 12 of the "Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China". It is believed that the internship of current students in the employer is just using part-time work-study or upgrading professional skills in their spare time, not a labor relationship, and no labor contract is required.

      2. The interns and the employers form a de facto labor legal relationship. This view is based on Article 4 of the "Opinions on the Implementation of the Labor Law of the People's Republic of China". The civil servants and the staff of institutions and social organizations that implement the civil service system, as well as rural workers (employees of township and village enterprises) Excluding farmers working in cities and doing business), active military personnel and family nanny, etc. are excluded from the labor contract law, which does not exclude school interns, and the student status of interns does not naturally restrict interns from being ordinary labor Join the labor force.

      Whether the interns form a labor relationship with the employer involves not only the labor risks of the enterprise, but also the protection of the rights and interests of interns. At present, judicial practice in Guangdong Province is more inclined to the first view, which believes that college students are not subject to labor and do not constitute a factual labor legal relationship with the employer.

【Typical Case】

      Feng (a college student) joined the Minzhu Village Neighborhood Committee on July 30, 2011. On July 10, 2012, Feng officially graduated and worked in the Minzhu Village Neighborhood Committee after graduation until the end of April 2013. During the period from July 30, 2011 to July 10, 2012, the Democratic Village Committee did not sign a labor contract and purchase social insurance with Feng. Feng applied to the Arbitration Commission for arbitration and demanded payment from July 30, 2011 to 2012. For those who did not sign a labor contract during July 10, 2010, the arbitration committee rejected all Feng’s arbitration claims after hearing. Feng refused to accept the suit to the court. The court held that the internship of students at school means that colleges and universities organize students to state agencies, enterprises and institutions, social organizations and other social organizations to conduct professional-related practical teaching activities in accordance with professional training goals and teaching plans. During the internship period, it did not constitute a labor relationship with the employer, and Feng’s lawsuit request for double wages during the internship period was rejected according to law.

(Case Source: Judicial Cases of No Litigation Network)

[Attorney Tips]

1. Before accepting intern students, the employer requires the intern students to provide the school's internship introduction letter, which is used to verify the intern's personal identity and at the same time to prove the student's identity.

2. If the employer only provides short-term internship opportunities, it is recommended that the human resources department of the company and the interns sign a written internship agreement, stipulating the respective rights and obligations of both parties during the internship period, whether to issue internship allowances, and the specific method and amount of internship allowances. ; In this case, it is recommended not to register for the interns, let alone sign a written labor contract with them.

3. When registering for internship, sign a tripartite agreement, namely the school, the internship unit, and the interns. Otherwise, the interns may be required to provide internship introduction letters or recommendation letters and other supporting documents. For the internship activities carried out by the enterprise, it is required to clarify in writing that there is no labor relationship between the intern and the employer.

[Article link]

"Opinions on Several Issues Concerning the Implementation of the "Labor Law of the People's Republic of China"" Article 12 The use of part-time work-study programs in their spare time by school students is not regarded as employment. If a labor relationship is not established, labor contracts may not be signed.

"Opinions on Several Issues Concerning the Implementation of the "Labor Law of the People's Republic of China"" Article 4 Civil servants and employees of institutions and social organizations that implement the civil service system, as well as rural laborers (employees of township and village enterprises and those who work in cities and do business) (Except for farmers) The labor law is not applicable to active military personnel and family nanny.

The Ministry of Labor (2005) No. 12 "Notice on Clarifying Labor Relations Related Matters" Article 1 The employer does not sign a written labor contract when hiring employees, but the following circumstances are also established, the labor relationship is established: (1) Employer and labor Those who meet the subject qualifications prescribed by laws and regulations; (2) The various labor rules and regulations formulated by the employer in accordance with the law are applicable to employees, and employees are subject to the labor management of the employer and engage in paid labor arranged by the employer; (3) The labor provided by the laborer is an integral part of the employer's business.

"Guangdong Province Higher Education Student Internship and Graduate Employment Internship Regulations" Article 2 These regulations apply to the internship of students of higher education institutions in the administrative area of ​​this province and the employment internship of college graduates with permanent residence in the province.

The internship referred to in these Regulations refers to colleges and universities organizing students to state agencies, enterprises, institutions, social organizations and other social organizations to carry out professional-related practical teaching activities in accordance with professional training goals and teaching plans. The employment probation for graduates (hereinafter referred to as probation) referred to in these Regulations refers to the people's governments or people's organizations at all levels who have not yet had employment adaptability training within one year after graduation. The internships for academic education students of secondary vocational schools and technical schools in the administrative area of ​​this province and the employment internships of academic education graduates of secondary vocational schools and technical schools with permanent residence in the province shall be implemented in accordance with these regulations.