What are the legal risks of labor dispatch companies
1. Legal risks caused by non-standard termination of contracts
Employers often differentiate between existing employees and dispatched employees, especially in state-owned enterprises. Former employees often continue the inertia of being "regular workers" and still enjoy "iron rice bowls", while labor dispatch employees are often dynamically managed and can be easily dismissed. Over time, employers often arbitrarily dismiss dispatched workers and refuse to pay wages on the grounds of no labor relations, leading to many legal disputes.
According to the relevant provisions of the Labor Contract Law, although there is no labor relationship between the employing unit and the dispatched workers, the dispatched workers cannot be dismissed arbitrarily. If the relevant legal provisions are violated, the enterprise may face the risk of litigation. To avoid such risks, in addition to complying with relevant laws and regulations and engaging in legal employment, enterprises can also agree on terms with dispatched workers in labor agreements with labor dispatch units. For example, if dispatched workers do not comply with the company's rules and regulations, the employing unit may return them. But the enterprise should inform the dispatched workers of the relevant rules and regulations. If the obligation to inform is not fulfilled, the employing unit still bears the responsibility for non standardization.
Employers should recognize that although arbitrary dismissal can make dispatched personnel obedient, it is difficult to establish a scientific and fair talent screening mechanism as a daily management tool, which is detrimental to the long-term development of the enterprise.
2. Legal risks applicable to labor dispatch
At present, many companies use labor dispatch as a pretext to entrust employees who have been working in their own units for many years to labor dispatch units, in order to evade corporate responsibility. However, these so-called dispatched employees are actually still engaged in their original work, only signing contracts with labor dispatch units instead of the original unit. In fact, this is a behavior of evading the law, and there are also legal risks involved. The Labor Contract Law stipulates that labor dispatch is applicable to "temporary, auxiliary, and alternative" work, and most labor dispatch employees in enterprises engage in normal work related to their main business. There is no provision in the Labor Contract Law regarding what constitutes "temporary, auxiliary, or alternative" work.
3. The responsibility for the dispatched workers causing harm to others and the risk of self harm shall be borne
The unclear sharing of responsibilities between the dispatching unit and the employing unit is a major problem when dispatched employees cause harm to others and themselves, and the legal risks they chant cannot be underestimated. In practice, there is often no agreement between the dispatching unit and the employing unit regarding the responsibility for injury accidents that occur due to reasons other than the employing unit. The reason is that most employers believe that there is no labor relationship between the dispatched workers and the employing units, and if work-related injuries occur, the employing units should not bear legal responsibility, but should be borne by the dispatching units.
The dispatched worker has a self employment relationship with both the dispatching unit and the employing unit, which are the joint employers of the dispatched worker. In labor dispatch activities, dispatch units and employers jointly obtain common benefits created by workers through labor dispatch. The scope of employment is obtained through labor dispatch agreements, which grant the right to request labor payment from workers, the right to manage the labor process of workers engaged in specific work, and the ownership of the results of workers. These determine the basis for the obligations undertaken by the employing unit. In addition, for dispatched workers who cause harm to others or claim to have suffered harm during dispatched labor, the dispatching unit and the employing unit shall fulfill the employer's substitute responsibility and bear joint and several liability for compensation to the outside world
According to Article 92 of the Labor Contract Law, if a labor dispatch unit violates the provisions of the Labor Contract Law and causes damage to dispatched workers, the labor dispatch unit and the employing unit shall bear joint and several liability for compensation. For example, if the workers dispatched by the labor dispatch unit do not have the qualifications for specific positions, and the dispatched workers suffer personal injury during their employment, the dispatch unit and the employing unit shall bear joint and several liability for compensation. It can be seen that when dispatched employee