While broadening employment channels for individuals and helping enterprises reduce costs and increase efficiency, flexible employment also brings unprecedented challenges to traditional labor relations. Problems such as lack of social security, difficulty in guaranteeing labor rights and interests, and platform algorithm control need to be followed up by laws and policies
work anchors is one of the more common flexible employment directions at present. Photo/Visual China
text｜Finance reporter Jin Yilong Zhou Manqing Zhang Han
Editing｜Zhu Ya
Before "going alone", Xiaobei worked in Wuhan for nearly three years, and during this period he changed six companies. This job is quite free, and everything is based on performance. However, the COVID-19 pandemic that arrived in early 2020 once blocked her employment path and her income returned to zero for several consecutive months. Eventually, she decided to get rid of her fixed corporate organization and start her freelance career.
"If you make a call, you will get income." Xiaobei is now doing e-commerce promotion. Relying on the rebate platform, she sends product discount information from partner merchants to various online communities. As long as someone places an order, she can charge a service fee ranging from 5%-20%.
For Xiaobei, what attracted her to this job was not only because she did not have to "check in" at the company, but also because her boss told her to "do this and that", but more importantly, her income was considerable. However, because she has not signed an labor contract with any employer, she also has no social security for employees such as medical care, pension, etc.
In academic research, workers like Xiaobei who are "part-time", "stage" and "de-employerization" are called flexible employment personnel, and freelancers such as freelance writers, independent designers, and online anchors are also among them. Although it may not be in line with the public's traditional mentality of "seeking stability", it is a true portrayal of the changes in the employment concepts of the younger generation. They want to have more flexible working hours, do what they like, and earn income while pursuing their own worth.
"More and more workers are getting rid of full-time jobs in the enterprise and turning their attention to gig economy ." American scholar Diane Mulcahy predicted in his book "Gi-Economy is Coming" published at the end of 2016 that the number of freelancers will exceed full-time employees in the next decade.
Her prediction seems to be becoming a reality.
At the beginning of 2022, data released by the National Bureau of Statistics showed that as of the end of 2021, China's flexible employment had reached 200 million, of which more than 1.6 million were engaged in online anchors and related practitioners, an increase of nearly three times from 2020. This means that if the invisible unemployed people are not considered, in China's nearly 900 million working population, at least one out of every five workers is "flexible employment."
is different from the traditional manufacturing industry's "glitter work". In the era of gig economy, a mobile phone can sign and deliver work online. In recent years, a large number of platform workers such as takeaway riders and online ride-hailing drivers have been spawned. In this process, some third-party flexible employment platforms that provide comprehensive services such as business subcontracting, income settlement, and tax management have also emerged.
However, while broadening employment channels for individuals and helping enterprises reduce costs and increase efficiency, flexible employment also brings unprecedented challenges to traditional labor relations and labor relations. The self-immolation incident of food delivery riders that attracted attention in 2021 has exposed problems such as lack of social security, difficulty in guaranteeing labor rights and interests, and unstable income for flexible employment.
" Finance " reporter once saw at an internet celebrity tourist attraction in Beijing that the cameras of many video anchors replaced the megaphones of tour guides and became the most eye-catching scenic spots in the attractions. In the cold wind of early spring, these anchors have been stationed for several hours, and some live broadcast rooms have few fans and rewards. This may be seen from the side that the current situation of many flexible employment workers is not as cool as they seem.
At the 2022 National People's Congress, Premier Li Keqiang said: "We must gradually improve the policies and wear 'seat belts' for these 'riders', so that flexible employment and other new employment forms not only solve urgent needs, but also stimulate market vitality and social creativity." This is the third year that Li Keqiang mentioned "flexible employment" at the Prime Minister's press conference.
Employment is the foundation of people's livelihood and the foundation and prerequisite of social and economic development. From the labor supply side, the employment market is still under pressure. According to the Ministry of Education, the total number of Chinese college graduates in 2022 will reach 10.76 million, breaking the 10 million mark for the first time. In addition to the college graduates, nearly 300 million migrant workers are also in China who need stable employment.
Many experts interviewed said that in addition to the active choice of workers, the rise of flexible employment is behind the changes in the economic situation, the transformation of industrial structure, the rise of labor costs, and the demand for flexible employment of enterprises. It can be foreseeable that in the context of increasingly severe employment situation, the group of flexible employment may continue to expand.
But are the laws and policies and systems that match flexible employment ready?
takes the initiative to "do odd jobs"
"I am doing promotion, do you need to attract traffic?" The phone call was connected, and Xiaobei skillfully promoted his business. The other end of the earpiece is the merchant on the e-commerce platform. Although she had never met her, the other party never asked which company she came from. "Everyone is more concerned about what channels you have and whether you can help sell more goods." With the trust she has established on the Internet, she has gradually accumulated her customer base, earning more than 10,000 yuan per month, no less than her previous salary when she was working full-time.
Xiaobei is from Hubei. She graduated from a higher vocational college in Wuhan in 2017. In the last year of college, a supply chain company came to the school to recruit people. Her work location was in the logistics park in the suburbs of Wuhan. After a brief interview, she, a major in logistics management, went to report with a large bag of small bags. It is said to be an on-the-job internship, but in terms of work intensity and duration, she is not much different from a formal employee. After joining the job, Xiaobei chose to be a sorting warehouse maintenance staff. This position implements "two shifts". The middle shift starts at 14:00 and ends at 22:00. After she really arrives at the post, she finds that whether she can get off work on time depends on the amount of orders. "I usually have to work overtime, and sometimes I have to go to the early morning." Xiaobei complained that this job didn't leave her free time.
Although the sorting warehouse keeper, as a part of the e-commerce logistics supply chain system, plays a crucial role in ensuring the timely supply of materials, the recruitment requirements are not high. According to the company information provided by Xiaobei, the reporter of "Finance" easily searched for the recruitment information of this position: "No limit on men and women, junior high school or above, ages 18-45, knowing 26 English letters, and their hands and feet are flexible." Not only is it easy to enter, but it also includes food and accommodation. This place has become a temporary harbor for many fresh graduates. There are more than a dozen college students who went in to intern with her, but most of them are just to complete the six-month internship period, so that they can get a graduation certificate at that time.
If it is not considered the various part-time jobs I did in college, this job is Xiaobei's first stop in the employment market, but she didn't last long, and she slipped away, "I'm so tired. I lost ten kilograms in less than two months." In addition to being unable to bear the intensity of work, she also said that if she wanted to go to the city on weekends, she had to take an hour or two bus, so when she was looking for a job, she was more inclined to go to the bustling city.
In the first two years of graduation, Xiaobei's work experience was all about sales, and he traveled to different industries such as real estate and medical care. She likes to deal with people and enjoys the sense of accomplishment brought by marketing, but she is always with small companies, and the benefits are sometimes good and sometimes bad. Salesmen have to rely on a team to achieve performance, and inevitably have some harsh requirements - she takes the sales office work she has done as an example, "I call customers every day, and the call time will last for two hours." Over time, it weakens her interest in this industry and she rethinks her future.
In fact, Xiaobei had an opportunity to join a big company. It was a listed pharmaceutical company. In the year she graduated, the company's investment promotion specialist position was recruiting people, requiring work experience, bachelor's degree or above, and an annual salary of 150,000 yuan, which is higher and more stable than all sales jobs Xiaobei later engaged in. Xiaobei has a strong sense of purpose and has done a lot of homework for the interview. "I just want to go to a big company." The recruitment manager felt that she was very different from other job seekers, and the two chatted well, so he relaxed the conditions and asked her.
However, the nature of the job of the investment promotion specialist is quite special. He travels a lot. Before joining the job, the general manager met Xiaobei. Unexpectedly, this meeting made her miss the job she longed for for a long time. "Maybe you were a little thin at the time, looking like a child, worried about not having enough work experience." She later learned from the recruitment supervisor part of the reason for being rejected.
Xiaobei also understands the considerations of employers, "I just came out of college and you have no strong experience and your talents are not outstanding. People will not pay you such a high salary." It is different to do sales. As long as you have good performance, fresh graduates can also get good income. Other tasks are difficult to achieve. A friend of Xiaobei is a computer major. He went to Beijing for an internship before graduation. However, when he returned to Wuhan to find a full-time job in 2018, his salary was only a few thousand yuan, and he did not increase to more than 10,000 yuan in 2022.
As a major science and education center, Wuhan has 84 universities and more than 1.2 million college students. It is one of the cities with the largest number of college students in the world. However, for a long time, this "new first-tier" city has not been very attractive to the graduates it has trained. There is a popular joke on : "In Wuhan, a monthly salary of 3,000 yuan is not enough to recruit a migrant worker, but a group of college students can recruit." Xiaobei stayed in Wuhan after graduating, but in addition to being able to do sales, there seems to be no better employment choice. Among the nearly 40 people in their class, those who are still stable in Wuhan can count it with their fingers.
From a national perspective, flexible employment has become one of the important choices for college graduates. According to statistics from the National Higher Education Student Information Consulting and Employment Guidance Center, the flexible employment of college graduates of the 2020 and 2021 nationwide accounts for more than 16%, among which the flexible employment of 2021 graduates of the 2021 provinces and cities exceeds 30%. The background of this phenomenon is that in recent years, young people with college graduates as the focus has faced considerable pressure on employment, and the survey unemployment rate for urban youth aged 16-24 has been relatively high. In October 2021, Ha Zengyou, Director of the Employment Department of the National Development and Reform Commission, said at a press conference that on the one hand, the total number of young people is relatively large. Taking 2021 as an example, the number of college graduates reached 9.09 million. At the same time, due to the impact of the epidemic, floods and disasters, some small and medium-sized enterprises have experienced the phenomenon of reducing recruitment and cautious recruitment, and the recruitment situation is relatively tense; on the other hand, the structural employment contradictions of the youth group are becoming increasingly prominent, and the disconnection of supply and demand, discomfort in people and jobs, and "slow employment" occurs from time to time.
Due to the impact of the epidemic and other aspects, some small and medium-sized enterprises have experienced reductions and cautious recruitment, and the recruitment situation is relatively tense. Photo/Xinhua
Although he has a seemingly stable full-time job, after the outbreak of the new crown epidemic in early 2020, China's real economy suffered a major impact, and Xiaobei's income was suddenly out of control. Since then, social e-commerce has become an important battlefield for marketing. She found that perhaps she could rely on the rebate platform and community to help small and medium-sized businesses attract traffic and solve their difficulty in selling goods. In this way, she has work to do even if she doesn't go out.
This employment path was learned by Xiaobei from his roommate. The drainage method was also taught by the other party. It sounds complicated, but she learned it in more than a week. Every day, she would browse e-commerce platforms, look for merchants who might have needs, and then call one by one to discuss cooperation, which has something in common with the sales work she had done before.
Regarding the cooperation model, Xiaobei explained: "As long as someone places an order through our channels, I will have money to make money."As an e-commerce promotion staff, Xiaobei earns service fees - usually 5% of the unit price of the product, but the profit margin of health products is relatively large, so she will set the service fee to 20%. After the transaction is successful, she withdraws cash through a digital marketing app.
Xiaobei said: "At the same time, ten products are promoted, as long as three of them have sales, I will not have to worry about not having money and can go out to play during the day. "Before this, she worked six days a week. In order to check in at the company before 9 o'clock, she had to go out to squeeze in to the bus at around 8 o'clock, but her income was not much different from now. "I will not look for a full-time job in the short term." "She said.
"In the context of industrial transformation and upgrading, a large number of Chinese labor is shifting from traditional manufacturing to the digital economy and sharing economy fields, and online and home office has become possible. ” Professor of the School of Economics of Renmin University of China Nie Huihua told the "Finance" reporter that there are two reasons behind this. First, technological progress has effectively solved the problem of supply and demand matching; second, labor costs have risen, and enterprises have a demand for flexible employment.
After working in the tourism management industry for more than ten years, Wang Yuanyuan chose to resign in 2020, join an insurance agency, and customize various insurance parties for customers. Case. She doesn't have to go to the company to work, and signed an agency contract with the company, rather than a labor contract. Compared with the social security of corporate employees, she cares more about the fact that the tax is less and the income is more. "I earned 800,000 last year."
In the study of Professor of the School of Labor and Personnel of Renmin University of China, Tu Yongqian , China's concept of flexible employment originated from International Labor Organization . The concept and connotation of "informal sector employment" proposed in 1972 have evolved over the past 40 years. In short, the international "informal sector employment" mainly refers to those practitioners participating in production and operation service institutions with small scale, small capital, low technical and skill requirements, and unstable income, as well as self-employed employment and other economic activities.
2000, China's informal employment exceeded formal employment in the total urban employment scale. From a literal perspective, "informal employment" is suspected to be derogatory, and China is more inclined to use the term "flexible employment". 2001 In 2018, the "Outline of the Tenth Five-Year Plan for National Economic and Social Development" mentioned "flexible employment" for the first time, mainly referring to the adoption of various flexible employment forms such as part-time, temporary, phased and flexible working hours of .
"In the 1990s, a wave of laid-offs occurred in China. In order to make a living, unemployed people would choose to do odd jobs. In order to subsidize their household income, some farmers would also go to the city to do short-term work through acquaintances during the slack season. This informal employment belongs to the flexible employment we are discussing today. "Tu Yongqian said.
Of course, today's flexible employment is not the public's impression of short-term work and cool labor, but also freelancers, such as online anchors, independent designers, corporate consultants, etc. Tu Yongqian said: "With the rise of the Internet, many people are using the platform to 'do odd jobs', some use their leisure time, and some are full-time. Overall, 'do odd jobs' has become a common social phenomenon with the participation of the whole people. "
The temptation of "freedom"
The "gap work" mentioned by Tu Yongqian is a common saying. In the economics community, a concept has long been born-gap economy (Gig Economy). According to the explanation of McKinsey, the global consulting agency, the gig economy refers to the economic field composed of freelancers. They use websites or applications to sign contracts online.
28-year-old Li Xing (pseudonym), a takeaway rider in Beijing. Every day, the first thing he does is to take out his mobile phone and open a crowdsourcing app. When a customer places an order on the takeaway platform, after the system is processed, he can just click the screen to "go online" and take the order. After the operation is successful, he will wear a uniform color takeaway clothing, wear a helmet, ride a second-hand motorcycle bought for 1,200 yuan, and rush to the destination displayed on the navigation to pick up the food at the fastest speed. The work of the day begins.
In the takeaway industry, crowdsourcing and special delivery are the two most mainstream employment models. The latter has to be managed by the delivery station and has a fixed working time and delivery range. Li Xing felt that he was not free, so he chose the crowdsourcing model . "No one cares, just pick it up if you want." He said this, but in fact, like many crowdsourcing riders, he is in a "all-weather" working state.
Li Xing is used to going out at 10 o'clock. When receiving the first order, he tends to choose the place closest to his residence. Because the delivery range of crowdsourcing riders is not limited, he often runs alone in Beijing, and has been to Fangshan District at the farthest. For takeaway riders, there is no distinction between being busy or not being busy. As long as you don’t take orders, you can have work to do 24 hours a day. In order to make more money, 15:00-15:30 was his only interval in the day. At this time, he would find a place to charge and lie on the motorcycle and sniff for a while. At 16 o'clock, he will be busy again until 22 o'clock delivering the last order of the day. Such a day will earn about 400 yuan.
Li Xing is from Henan. After graduating from high school, he followed his fellow villager to Beijing to decorate his house. At that time, he relied on introductions to take on work. Although the working hours are regular, from 8 o'clock to 17 o'clock, his wages are basically settled in the year and are often owed. Unless he meets a good boss, he will only be paid once a month or two. He worked for two years before choosing to leave.
In comparison, it is much more flexible to be a crowdsourcing takeaway rider. Download the App, complete the information, and buy an electric bike. More importantly, riders can decide on the commuting hours and pay a day, so they won’t have to eat until they have a meal. Inspired by "freedom" and "income of over 10,000 yuan", he joined the takeaway industry.
Li Xing’s choice is not special. After conducting a long-term survey of couriers and takeaway workers in Wuhan, Zheng Guanghuai's team found that 68.79% of respondents said that "free work" is the main reason why they become takeaways and couriers.
Li Xing became a takeaway rider around 2017, which was the late stage of rapid expansion of China's takeaway industry. According to the "Legal Research Report on Employment Model of Takeaway Platform" released by Beijing Zhicheng Migrant Workers Legal Aid and Research Center (hereinafter referred to as "Zhicheng Center") in September 2021, in the past ten years, the takeaway market has experienced multiple rounds of capital competition and industry integration and mergers. Finally, in the second half of 2017, a dual giant pattern of Meituan and Ele.me takeaway accounted for 46.1% and 39.5% of the market share.
In this process, takeaway riders face the dual states of "high-intensity work" and "low-level guarantee".
and Li Xing on the same platform Beijing special delivery rider Wang Kai (pseudonym), observed that when an order comes in, the time left for the rider is only about 30 minutes. The first 10 minutes are used to rush to the pickup point. If there is a peak of lunch, merchants will give priority to dine in. It will take 10 minutes to wait for meals and pick up meals. The last 10 minutes are the delivery time. "Waiting for traffic lights and crossing the overpass, if you don't go against the trend, you will all have to time out." This is not difficult to explain why takeaway riders have suffered repeated traffic accidents.
On April evening, 2022, when meeting with a reporter from "Finance", Wang Kai said that he saw three traffic accidents related to takeaway riders on the way to deliver the food that day. One of them happened around 11:30, which was the busiest time of delivery in the day. He was waiting for the traffic lights and did not dare to look over because in a while, the orders he had to be timed out - for special delivery riders who use positive reviews and punctuality rates as assessment standards, timeout means fines, which all riders must avoid.
is a delivery station that Wang Kai serves. It is fined 100 yuan for a negative review by riders. Based on the average price of 9 yuan per order, at least 11 orders must be run to recover the loss. When you meet a customer with a bad face, Wang Kai will politely say: "Your takeaway has arrived, I wish you a happy meal." But during the delivery, the overflow of dishes is inevitable. He can only take the initiative to compensate the customer, or ask the other party to place another order, and he will pay the money, "One order is only thirty or fifty.""Compared with the 100 yuan fine, Wang Kai believes that this treatment method is more reasonable.
For crowdsourcing riders, a negative review is fined 3 yuan. Li Xing will receive it every month, which has little impact, but the pressure is that their orders mainly rely on grabbing, "I usually only grab orders 5 kilometers away from the merchant, and I can't get there any further. "For Li Xing, grabbing orders while riding will distract and have some dangers, but if you don't grab them, you will have no income. This is a process that is not easy to balance.
When studying the labor process of the delivery crew group, Zheng Guanghuai's team proposed the concepts of "platform workers" and "download labor" - riders work by downloading the app. On the surface, this app is just a tool to assist them in their work, but in fact, riders download a set of precise labor controls Model. Under this model, the original subjectivity of workers is fully shaped and even replaced. They seem to work in a more free way, but at the same time they are under deeper control. The characteristics of this labor model are: strong attraction, weak contract, high supervision and low resistance.
" When we see the takeaway platform offering high-paying and free recruitment advertisements, we have achieved conceptual control, which is also the deepest control, first attracting people, and then action control. Now it is not like the manufacturing era, where no one stands behind the scenes to direct workers to do things, but after downloading the app to your mobile phone, from the place of order reception, delivery time, to consumer feedback, and the allocation of labor results, there is data at every step, and finally an optimal control mode is obtained. "Zheng Guanghuai told the reporter of "Finance" that this optimal control model is the result of a highly combination of technical hegemony and the body and mind of workers, and it connotes the two-way process of downloading and uploading.
However, this control of the platform will be subject to constraints in the future. Article 20 of the " Internet Information Service Algorithm Recommendation Management Regulations " implemented on March 1, 2022 stipulates that if an algorithm recommendation service provider provides work scheduling services to workers, the workers should protect the workers' legal rights and interests such as labor remuneration, rest and vacation, and establish and improve the platform's order distribution, remuneration composition, and related algorithms such as payment, working hours, rewards and punishments.
No matter what, this job satisfies Wang Kai. He can earn about 10,000 yuan per month on average, and he saved up over the years After some money, he spent more than 700 yuan to buy a plane ticket and returned to his hometown. It was the first time he took a plane in his life, "just to experience it." He planned to work for a few more years while he was young.
"network" of labor relations
Before coming to Beijing to be a special delivery rider, Wang Kai did the same job in his hometown in Shanxi. At that time, he entered through a labor agency, and belonged to the same delivery platform as the current delivery platform, and it also had a special delivery model. The difference is that when he was in Shanxi, he was asked to register as an "individual industrial and commercial household".
Wang Kai still remembered that shortly after joining the company in Shanxi, the delivery station notified all riders and scan the QR code to fill in personal information such as mobile phone number, name, ID number, etc., which was considered successful in registration. Someone asked at the time: "Why do you need to register? "But I only got a simple answer: I can only get a salary after registering.
Although Wang Kai is young, he has been struggling in society for many years and has seen it a lot. He knows in his heart that it is definitely "no benefit" after registering, but he also said to himself: "Where you don't register, how can you run the order if you don't register? "But what he is not entirely clear is that when the identity becomes an "individual business owner", it means that he will no longer be protected by the labor law . Once a dispute arises, he will often fall into the dilemma of "not finding an employer".
In the takeaway industry, "individual business owners" are new identities that emerged with the expansion of the scale of the takeaway platform and the evolution of the employment model.
According to the research of the Zhicheng Center, in the traditional model, after consumers order food by phone, restaurants hire employees to deliver, and the situation has changed.Around 2008, takeaway platforms such as Ele.me and Meituan were launched one after another, and the delivery service was transferred by the takeaway platform to recruit and directly hire takeaway workers. During this period, the rights and interests of takeaway workers were relatively guaranteed. A research report released by the Beijing Yilian Labor Law Aid and Research Center in in 2020 showed that most takeaway workers had labor contracts before, and the platform would also pay social insurance for them, and provide free work equipment such as electric cars, clothes, hats, etc.
As the competition among various takeaway platforms becomes fierce, in order to expand the scale of transportation capacity, in 2015, takeaway platforms began to introduce crowdsourcing models. Initially, takeaway platforms usually directly recruit crowdsourcing riders, sign cooperation agreements with crowdsourcing riders, and purchase accident insurance for them.
"Legally, if you buy insurance for a worker or a provider of a certain service, we can understand it to a certain extent that the two are either labor relations, labor relations, or are recognized as other contracts or cooperative relations, and there is a legal connection point. As a takeaway platform for actual employers, you can only find an intermediate role to do this." Chen Bing, director of the Competition Law Research Center of Nankai University, told the reporter of "Finance".
Soon, the takeaway platform also discovered the legal risks, so it cooperated with the crowdsourcing service company to pass on the costs and risks it should have borne to the crowdsourcing service company, which means that the rider's labor rights and interests are simultaneously reduced.
As Zhicheng Center said in its report, almost during the same period when the crowdsourcing model appeared, the takeaway platform began to outsourcing the delivery business on a large scale. At this time, the high-risk and low-yield labor outsourcing market spontaneously evolved into "individual business owners". Xu Miao, a former researcher at the Zhicheng Center, told the "Finance" reporter that according to the team's survey and statistics, there are more than 1.9 million self-employed individuals in the country whose business scope includes takeaway. Excluding the part that is not a rider, for example, some small restaurants also deliver takeaways themselves, and about 1.6 million takeaway riders may be registered as "self-employed and commercial households."
For takeaway riders being registered as "individual business owners", Chen Bing's research team found that behind this is a flexible employment comprehensive service platform. This type of platform is now widely used in takeaway, housekeeping, decoration, and transportation industries. In addition to the settlement wages mentioned by Wang Kai, it can also realize employment matching, tax planning, tax payment, social security payment and other functions.
Chen Bing introduced that although it is labor outsourcing on the surface, the large-scale flexible employment comprehensive service platform generally does not emphasize labor attributes. Instead, after taking over the flexible employment needs of the B-end (actual employer), the C-end (worker) is batch registered as "individual industrial and commercial households" and then subcontract cooperation. In this way, there is no labor relationship between all parties, but only a business cooperation relationship between general commercial entities.
It should be noted that although there is no labor relationship between all parties, Wang Kai and his colleagues are still controlled by the algorithm of the takeaway platform and are managed and assessed by outsourcers from the entire process from order acceptance to delivery. "For example, how much is the deduction for negative reviews? This is actually the first one issued by the platform, but after layers of transactions, it will eventually be executed by the outsourcer." Chen Bing said.
Zhicheng Center searched almost all judgments related to riders' identification of labor relations (hereinafter referred to as "labor recognition") since the emergence of the takeaway platform. On this basis, 1,907 valid judgments were studied in more than five years from April 2016 to June 2021. The results showed that the labor recognition rate of takeaway platforms was basically controlled within 1%, and deliverymen also reduced the labor recognition rate from 81.62% to 46.89% and 58.62% through "individual industrial and commercial households" and other models.
In fact, this complex relationship does not exist only in the group of takeaway riders, and flexible employment workers such as online ride-hailing drivers also face similar problems.
Two years ago, Tang Zhi, a lawyer at Hunan Qinxiyan United Law Firm, received a consultant whose husband is an online ride-hailing driver and registered three platforms.One day at noon, after accepting the order from one of the platforms, he delivered the passenger to the designated location. After the passenger got off the bus, the online car-hailing driver fell into the car. After identification, he died suddenly of .
At the beginning, the family members planned to demand compensation for work-related injuries through litigation. This first requires confirmation that the driver has a labor relationship with the platform, and that the labor relationship can only be confirmed with one platform, but the family members cannot provide a labor contract. Tang Zhi later learned that since online ride-hailing platforms usually do not sign labor contracts directly with the driver, but will sign other agreements with the driver, such as contract agreements, leasing agreements, joint venture agreements, contract agreements, etc., this also increases the difficulty of confirming labor relations.
"According to the provisions of the " Labor Contract Law ", "Labor Law" and relevant documents, the most important basis for whether the worker and the employer can determine the labor relationship is the dependence and management of both parties." Tang Zhi explained to the reporter of "Finance" that in this case, determining whether there is a labor relationship between the platform and the driver should specifically consider factors such as the operating model of the platform, the level of management of the platform for workers, the income distribution method, and whether the workers independently bear business risks. If the platform only provides information services to online ride-hailing drivers and charges certain management fees or information fees or service fees through the platform, and the workers can decide independently whether to accept orders, etc., it is generally difficult to identify as labor relations.
"He has records of order acceptance on various platforms, which are relatively scattered. It is impossible to see where the center of gravity is. It is also difficult to judge whether the platform's personal management attributes are strong or weak." Tang Zhi said that judging from the relevant judgments, courts in various places have different handling attitudes and are controversial. In this case, he suggested that the family negotiate and resolve the issue. After several twists and turns, the platform finally gave a pension of hundreds of thousands of yuan.
This is the first time Tang Zhi has come into contact with a personal injury claim case of online ride-hailing drivers. Although he has experience in handling labor disputes, this time he deeply feels that the identification of labor relations under new business forms such as flexible employment is more complicated.
In 2008, when Tang Zhi entered the legal profession, the original Labor Contract Law began to be implemented. At this time, the original Labor Law had been promulgated for 14 years. He found that at that time, there were often subcontracting and subcontracting in the construction field, and not signing labor contracts. Even if the contractor ran away, at least the working hours and location of the workers were clear, and there was also a clear responsible entity, that is, the general contracting unit in the engineering construction field was responsible for the wage payment of migrant workers. Therefore, even if workers in the construction field do not sign a labor contract, it is relatively easier to protect their rights.
In contrast, under the new business model of flexible employment, workers' work locations and working hours are more flexible and are no longer restricted by fixed locations, positions and time. The ways to obtain compensation include monthly settlement, daily settlement, and each order settlement, which is more diverse. In Tang Zhi's view, if the labor or employment relationship cannot be determined, it will directly affect the realization of rights protection such as economic compensation, work-related injury compensation, and social insurance.
Whether workers with flexible employment are considered company employees, even in , where the gig economy is relatively mature, there is still controversy. Regarding this relationship, the Uber case has undoubtedly caused the most controversy internationally in recent years, and different countries have different attitudes to dealing with it.
In September 2019, California, the United States signed the "AB-5 Act" (California Assembly Bill 5), requiring workers engaged in the gig economy to be identified as formal employees, rather than contract workers or independent contractors, which aroused strong opposition from online ride-hailing giants such as Uber, and ultimately forced the court to agree to suspend the implementation of law.
In November 2020, California voters voted to pass Proposal No. 22, allowing online ride-hailing platforms to consider drivers instead of classifying drivers as employees, but rather as "independent contractors." The bill also stipulates that the platform must provide health insurance and occupational accident insurance to drivers who work more than 15 hours a week.
However, in August 2021, a California Superior Court judge ruled that treating drivers as independent contractors was a violation of the state constitution and unfairly restricting the legislature's power in workers' compensation and labor-management negotiations.
In February 2021, the British Supreme Court ruled that it required Uber to classify drivers as workers, rather than independent contractors. The reason is that Uber has obvious control over drivers, so Uber is an employer, and drivers have the right to enjoy the rights of employees such as minimum wages.
In response to the Uber case, Nie Huihua pointed out that from the legal rulings between the United Kingdom and the United States, whether a company has control over individuals is the key to judging the employment relationship. If the company has strong control over workers' market access, labor process and labor output, then the two are employment relationships, otherwise it is a market contracting relationship.
In his opinion, if the platform company believes that control over employees cannot offset the costs brought about by employment relationship recognition, the platform company can relax its control over employees until its control level is determined to be that there is no employment relationship. However, where is this critical value, it is necessary for all sectors to explore together.
The social security problems in reality
Nie Huihua has been studying the digital economy in recent years. What impressed him was that when investigating flexible employment groups represented by online ride-hailing drivers, the other party often did not know whether they had established labor relations with the employer, but when asked "who paid you five insurances and one fund", they realized that they had always been away from the social security system.
After dropping out of college, Wang Kai worked as an Internet cafe administrator and a courier in his hometown in Shanxi. He did not sign a labor contract for both jobs, and no one paid him social security. Until May 2016, he saw a large e-commerce company short of people in the Beijing warehouse. In order to face the "6.18", the labor company recruited Wang Kai as a dispatched worker. Fortunately, four months later, a small number of job vacancies appeared in the 100 formal job quotas. Wang Kai performed well and was able to transfer to a formal job in an e-commerce company. After the company paid the five insurances and one fund, he received a monthly salary of more than 5,000 yuan.
One year during the National Day holiday, he shouldn't have been on duty. Because the warehouse tasks were heavy, he worked for three days while sick. After returning to the dormitory after finishing the shift, he finally had a headache at 4 a.m. It was his girlfriend who helped him call him 120. He was admitted to the emergency room of the hospital that night and was diagnosed with acute meningitis. He was hospitalized for 17 days and spent more than 20,000 yuan.
According to Wang Kai's retelling of the doctor, his cause was caused by excessive fatigue and insufficient rest. After being discharged from the hospital, Wang Kai took a large stack of relevant supporting materials to apply for work-related injury reimbursement, but the process was cumbersome. He went to the company headquarters three times, but still failed. "Every time I said that my materials were incomplete, and it cost 50 yuan just to print and copy." In desperation, Wang Kai resigned and returned to his hometown. Fortunately, he also paid the New Rural Cooperative Medical Insurance (New Rural Cooperative Medical Care), and finally reimbursed more than 6,000 yuan at a rate of 33%. After all, he still has to bear more than 10,000 yuan.
In the 1990s, with the development of the market economy, in order to promote reemployment and alleviate the problem of labor overpower, the state and local governments began to encourage the establishment of labor dispatch companies. However, it was not until 2014 that the "Interim Provisions on Labor Dispatch" began to be implemented that relevant details were determined for the first time. During this period, the social security problem of flexible employment personnel has always been a missing link.
In 1999, Ma Kui went to Beijing from his hometown in Gansu to work. He worked in a miscellaneous hotel and drove a sightseeing bus in Houhai bar. He also worked as a security guard in a teahouse as a dispatch worker and worked as a small worker on a construction site. In that era, there was no mandatory insurance for construction workers, and he could only admit that he was unlucky if he was injured. A few years later, he found a job delivering newspapers at the post office and took the third insurance for the first time. He said that this was the best job he had ever done. But the good times didn't last long. Because I went back to my hometown to take care of my mother-in-law who had undergone surgery, I took three months off. When I came back, I was replaced by my work.
Nowadays, 37-year-old Ma Kui is driving an online car-hailing car. The car is rented, with a monthly payment of 4,700 yuan. Although the time is free and the more you work, there is no social security. Xiaowen, his wife, who is three years younger than him, is a cleaning storage storage engineer and has no affiliated platform. As for the source of income, she relies on customers to introduce customers. Xiaowen has worked in front desks and other work before, and no company pays social security for her. In her opinion, what flexible employment workers need most is medical insurance. "I dare not get sick, I endure even minor illnesses and dare not go to the hospital." Xiaowen said.
In China's current social security system, in addition to the two categories of employee basic insurance and residents' basic insurance, flexible employment workers like Ma Kui and his wife are also allowed to choose a payment base to participate in the insurance according to the average social salary. The fee rate is generally 20%, of which 12% enter the unified account and 8% enter the personal account. Ma Kui also paid for three months as a flexible employment employee, but found that the cost was too high and the effect of social security could not be seen in the short term, so he no longer paid.
For this practice, Wang Dehua, a researcher at the Institute of Finance and Economics Strategy of the Chinese Academy of Social Sciences, pointed out in a paper that due to the lack of corporate payment entities, the total payment rate for flexible employment personnel to participate in insurance is lower than 4% of normal enterprises to participate in insurance. Assuming that a person now starts to participate in insurance as a flexible employment personnel, choose the lowest 60% base for 15 years. If the pension increases by 5% in the future, the government needs to save 150,000 yuan to balance the payment and expenditure of this person's lifelong pension.
"In the past, the number of people participating in this insurance model was only tens of millions, and the pressure was not great. If future gig economy practitioners participate in employee pension and medical insurance in a flexible employment model, the number of people participating in employee pension and medical insurance may reach hundreds of millions. This impact is obviously unbearable for employees' social insurance." Wang Dehua wrote.
Dabai, a permanent courier in a community in Beijing, told the "Finance" reporter that among the express companies, currently only JD.com and SF Express provide social security for couriers. Most employees of other small and medium-sized express companies have to find ways to solve the social security problem themselves. Some people will contact other companies to pay social security, and some people will pay social security in their hometown. According to his estimate, among couriers in small and medium-sized express delivery companies, the proportion of people with social security accounts for only about 10%.
A good signal is that in July 2021, the Ministry of Human Resources and Social Security and eight other departments jointly issued the "Guiding Opinions on Maintaining the Labor and Social Security Rights and Interests of Workers in New Employment Forms" (hereinafter referred to as the "Guiding Opinions") to strengthen occupational injury protection, focus on platform enterprises in the travel, takeaway, instant delivery, same-city freight and other industries, and organize the pilot project of occupational injury protection for flexible employment personnel on the platform. Platform enterprises should participate in accordance with regulations; platform enterprises are encouraged to improve the level of protection for flexible employment personnel on the platform by purchasing commercial insurance such as personal accidents and employer responsibilities.
In the pilot of occupational injury protection, the main approach of the takeaway industry is to promote commercial insurance to riders. On the takeaway platform served by Li Xing, crowdsourcing riders are directly insured by crowdsourcing service providers to the insurance company for accidental injury insurance. The daily premium of 3 yuan is deducted from the rider's commission. The coverage time is from the daily order to 1:30 am the next day.
complex problems need to be flexibly handled
back to reality, and there are still problems that need to be solved. Zheng Guanghuai said: "Commercial insurance is not mandatory, especially for crowdsourcing riders. You can buy orders today and not buy tomorrow. If the coverage time is exceeded, for example, an accident occurs on the way back to the dormitory and the labor relationship is unclear, who is the responsibility? "
"Wrestling and abrasions, you have to go to the hospital to get a certificate. If you need a certificate from the traffic management bureau, it is very troublesome. It is better to run a few more orders if you have that time." Xiao Ming, 28, once worked as a crowdsourcing rider for a while, at most, he gave 11 orders in 40 minutes, but the system often sent orders in the opposite direction. In order not to exceed the time, he could only go against the wind and speed. There were often news about deliverymen having car accidents. Under the persuasion of his parents, he eventually left the industry.
Tu Yongqian told the reporter of "Finance" that the reason why takeaway riders have become a high-incidence group of traffic accidents is not only because of the inadequate rationality of the program and algorithm design of the takeaway platform, but also has a lot to do with the riders' lack of understanding of safety and labor rights. "Many times, riders are running forward desperately in order to grab time and fat orders. There are traffic jams and weather reasons here. They also have to consider customer evaluations. It is difficult to explain what causes the work-related injury."
"Now the premium of 3 yuan per day is mainly borne by the riders themselves. Now there are tens of millions of riders. If they are all considered labor relations, it will inevitably lead to an increase in labor costs. At that time, the cost of this part will be passed on to consumers." In Tu Yongqian's idea, according to the current "three-in-one" social security model in China, the government can launch an independent insurance type for flexible employment and conduct industry segmentation, reducing the costs, and the government, enterprises and individuals each bear part of it, which is more conducive to promoting industry development and protecting workers' rights and interests.
At this stage, flexible employment is a very broad concept, involving industries such as home improvement, takeaway, logistics, and online anchors. Some of them only move traditional businesses online, while the platform is simply engaged in information matching. In Chen Bing's view, the key is to clarify the evaluation elements such as income source, job attributes, labor intensity, responsibility allocation, tort relief of individual workers in different scenarios, and draw a clear boundary between rights and obligations between workers and employment platforms and flexible employment service platforms, and clarify the platform's responsibility type and necessary limits.
In addition, Chen Bing suggested that it can be classified and processed according to different employment situations. For flexible employment workers in high-risk industries, preliminary classification can be carried out based on their gender, age, education level, skilled jobs, etc., forced raising employment security obligations, and signing employment agreements based on the "labor relationship" recognized by the Labor Law; and indoor cleaning, goods-carrying anchors and online course teachers, etc., the corresponding flexible labor levels bear employment risks one after another, and guide both labor and capital to reach an agreement within the applicable boundaries of rights and responsibilities.
"For example, online anchors often work indoors, which looks low and do not have traffic accidents like takeaway riders. However, this group of people who work repeatedly and have a long time of labor will also have the risk of depression and death from overwork. However, the risk is not so obvious, but it actually exists, and their demand for labor security cannot be ignored." Chen Bing said.
The above guiding opinions also preliminary division of the platform's employment forms, and divide workers in new business forms into three types: "labor relations", "not completely in line with labor relations" and "civil relations". The degree of protection and basis are different. For those who do not fully meet the circumstances of establishing a labor relationship but who conducts labor management on workers, local governments are required to guide platform enterprises and workers to enter into written agreements to reasonably determine the rights and obligations of enterprises and workers.
Nie Huihua pointed out that in the flexible industrial use, if the platform company is recognized as a labor relationship between employees, then the platform company is likely to have to bear the five insurances and one fund and various welfare costs of employees. If the two are not labor relations, shouldn’t someone bear the cost that should have been incurred?
"The current social security payments account for about 40% of personal wages, and all five insurances and one fund must be purchased, resulting in a heavy burden on enterprises. They can only make mistakes and build multiple firewalls in the relationship with riders. There are many institutional transaction fees here. Enterprises seem to avoid costs, but in the end there will always be a social group to bear this cost. To a certain extent, this is a waste." Nie Huihua said in an interview with a reporter from "Finance" that social security responsibilities and labor relations are tied to each other, which is the root cause of the social security dilemma of flexible employment personnel.
He proposed a solution: to relatively separate social security responsibilities and labor relations, that is, employees can pay social security on their own, or through labor dispatch companies, and they can also make payments from platform companies, without even having to pay all five insurance types. However, the policy must ensure the most basic rights and interests of workers, so that there is no obvious arbitrage space between the several payment methods.
"What the government needs to do is formulate regulatory rules, clarify the rights and obligations of different entities, and give the right to choose to the market. When the rules change and the costs are reduced, companies are willing to assume more responsibilities after weighing costs and benefits, and do not try every means to avoid them." Nie Huihua said that it is better to try new business forms, new methods, old methods in old industries. If all industries follow the same set of standards, they will not be able to stimulate market vitality.
Chen Bing believes that the gig economy carries an important function of people's livelihood protection. If social security responsibilities are blindly pushed to the platform, it will be a fatal blow to enterprises and industries, and will also cause the operation of the entire city to stagnate. At that time, the demand for flexible employment will not be met, which will easily increase the risk of unemployment.
In fact, since 2021, due to the impact of the new crown epidemic and other reasons, the unemployment rate in industries such as online education and tourism has increased, and the phenomenon of hidden unemployment has made the real employment situation full of challenges.
Under the severe employment situation, the employment target this year is not low. Premier Li Keqiang proposed in his government work report on March 5 that the main expected development goals for 2022 are: GDP growth of about 5.5%; more than 11 million new jobs in urban areas, and the urban surveyed unemployment rate will be controlled within 5.5% throughout the year.
What we need to see is that the gig economy is becoming an important force in promoting flexible employment and a new growth point for promoting high-quality development of the national economy. In November 2020, the "Current Situation, Social Impact and Policy Recommendations of the Development of the Giant Economy in the Internet Era" released by the Institute of Economics, School of Social Sciences and other institutions of Tsinghua University showed that in 2019, China's gig economy contributed 10.43% to the total GDP increase, and it is expected that by 2035, this proportion will increase to 13.26%, accounting for 6.82% of GDP.
Multiple interviewed experts said that only when enterprises, individuals and governments are prepared to respond can flexible employment benefit more workers and the gig economy can play a greater role.
