As a supplementary form of flexible employment of enterprises, labor dispatch can meet the phased and seasonal employment needs to a certain extent. However, in practice, in order to reduce labor costs or avoid the management burden of formal employment, some enterprises use labor dispatch as a means to replace the basic employment system, break through the legal "three sexes" job restrictions, and use dispatched workers in an excessive manner. Such operations not only deviate from the legislative intent of the labor dispatch system, but also expose enterprises to the dual risks of administrative penalties and labor disputes. This article will systematically sort out the key points of labor dispatch employment from three dimensions: practical misunderstandings, legal consequences, and compliance paths.

1. Practical misunderstandings: misunderstanding of the "three sexes" post and operational anomie

Article 66 of the Labor Contract Law clearly limits labor dispatch to temporary, auxiliary and alternative jobs, but there are many deviations in the understanding and implementation of this provision in the actual employment of enterprises.

First, the nature of the position is defined arbitrarily. Some enterprises simply classify main business positions such as production, sales, and technology research and development into "auxiliary positions", and use dispatched workers to undertake core business work for a long time. The essence of this practice is to replace regular employment with labor dispatch, which is obviously inconsistent with the positioning of "supplementary form".

Second, there is a lack of procedures for identifying auxiliary positions. According to the regulations, the determination of auxiliary positions is not a matter that can be unilaterally decided by the enterprise, but must be carried out through democratic procedures - that is, it is discussed by the workers' congress or all employees, negotiated with the trade union or employee representatives on an equal footing, and publicized within the enterprise. In practice, most enterprises do not fulfill this procedure and delineate the scope of auxiliary positions based solely on management decisions, resulting in a weak legal basis for job identification.

Third, the employment ratio exceeded the legal upper limit. Article 4 of the Interim Provisions on Labor Dispatch clearly states that the number of dispatched workers used by the employer shall not exceed 10% of its total employment. However, in actual operations, due to business fluctuations or cost considerations, the phenomenon of over-proportional employment occurs from time to time, and some companies even use dispatch work as the main source of labor.

Fourth, the evasion operation of the post period. The statutory duration of temporary positions does not exceed 6 months, but in practice, there are situations where the same dispatched worker is arranged in the same position for a long time and the employment period is extended in disguise by renewing the dispatch agreement, etc., making the "temporary" exist in name only.

The core problem of the above operation is that the legal risk of alienating labor dispatch, which should be used as a supplementary means, into a channel to avoid formal employment responsibilities, should not be underestimated.

2. Legal consequences: the dual pressure of administrative accountability and civil compensation

The legal consequences of irregular labor dispatch have a clear legal basis, and in recent years, law enforcement and judicial attention to such issues has continued to increase.

(1) Administrative responsibility

According to Article 35 of the Regulations for the Implementation of the Labor Contract Law, if the employer violates the labor dispatch regulations, the labor administrative department has the right to order corrections within a time limit; if the circumstances are serious, a fine of between 1,000 and 5,000 yuan may be imposed for each dispatched worker. For situations such as over-proportional employment and illegal posting, once verified, enterprises not only face fines, but may also be required to rectify within a time limit, affecting the normal production and operation order.

(2) Civil liability

The more far-reaching impact lies in the determination of liability at the civil level. In judicial practice, if the dispatched position does not meet the requirements of the "three sexes" or is overly employed, and the worker claims to confirm the existence of a de facto labor relationship with the employer, the court is more likely to support the claim. Once the de facto labor relationship is established, the employer must assume all the legal obligations of the employer, including but not limited to: double the wage difference without signing a written labor contract, supplementary payment of social insurance, payment of economic compensation or compensation, etc. This means that the labor costs that enterprises try to avoid through labor dispatch still need to be borne in another way.

(3) Chain reaction at the level of employment management

The long-term use of dispatched workers beyond the scope and proportion may also cause internal disputes between the treatment of dispatched workers and regular workers, affecting the stability of the workforce. When the proportion of dispatched workers is high, the risk of collective labor disputes increases accordingly, and enterprises may face a more complex dispute resolution situation.

3. Compliance path: institutionalized arrangements from source control to dynamic management

The core of avoiding legal risks in labor dispatch lies in strictly following the three basic principles of "legal scope, legal proportion, and legal procedures", and bringing dispatched workers into the standardized management track.

(1) Accurately define the "three sexes" positions

• Temporary positions should be strictly controlled within the scope of not more than 6 months of existence, and if they really need to continue to employ after expiration, they should consider switching to formal employment or solving it through business outsourcing.
• Alternative positions are only applicable to situations where regular employees of the employing unit are temporarily unable to work due to off-the-job study, vacation, etc., and should be terminated upon the expiration of the replacement period.
• Auxiliary positions should be defined as non-main business positions that "provide services for the main business position". The key here is to clarify the boundary between main business and non-main business, and avoid simply classifying core business positions into auxiliary categories.

(2) Implement democratic publicity procedures

The identification of auxiliary positions must comply with legal procedures: after discussion by the workers' congress or all employees, plans and opinions are proposed, and determined through equal consultation with the trade union or employee representatives. After the consultation is determined, it should be publicized in a conspicuous position within the enterprise, and a complete written record should be kept for future reference. This procedure is not only a requirement of legality, but also an important evidence basis for preventing subsequent disputes.

(3) Strictly control the proportion of employment

Enterprises should establish a statistical mechanism for total employment to regularly calculate the ratio of labor contract employees to dispatched workers to ensure that the proportion of dispatched workers does not exceed 10%. For those that have exceeded the proportion, a rectification plan should be formulated to gradually adjust compliance by converting to formal employment and business outsourcing. When assessing the needs of new employment, priority should be given to labor contract employment, and if it is really necessary to use dispatched workers, the proportion space must be verified first.

(4) Establish a dynamic management mechanism

The compliance management of labor dispatch employment should not be a one-time job. Enterprises should establish a job verification mechanism, regularly review whether the dispatched employment positions meet the "three characteristics" requirements, and adjust the deviations found in a timely manner. At the same time, the renewal of dispatch cooperation agreements and the replacement of dispatched workers should be included in the scope of compliance review to avoid the continuation of violations due to operational inertia.

Legal basis

• Article 66 of the Labor Contract Law of the People's Republic of China: "Labor contract employment is the basic form of employment of enterprises in China. Labor dispatch employment is a supplementary form and can only be implemented in temporary, auxiliary or alternative jobs. The temporary jobs specified in the preceding paragraph refer to positions that last for no more than six months; auxiliary jobs refer to non-main business positions that provide services for main business positions; alternative jobs refer to positions in which workers of the employing unit are unable to work due to off-work, study, vacation, etc., and can be replaced by other workers. The employer shall strictly control the number of labor dispatch workers, which shall not exceed a certain proportion of its total employment, and the specific proportion shall be prescribed by the labor administrative department of the State Council. ”
• Article 3 of the Interim Provisions on Labor Dispatch (Order No. 22 of the Ministry of Human Resources and Social Security): "The employer may only use the dispatched worker in temporary, auxiliary or alternative jobs. The temporary jobs specified in the preceding paragraph refer to positions that last for no more than 6 months; auxiliary jobs refer to non-main business positions that provide services for the main business position; Alternative jobs refer to positions where workers of the employing unit are unable to work for a certain period of time due to off-work, vacation, etc., and can be replaced by other workers. When the employer decides to use the auxiliary positions of the dispatched workers, it shall be discussed by the workers' congress or all employees, put forward plans and opinions, negotiated with the trade union or employee representatives on an equal footing, and publicized within the employing unit. ”
• Article 4 of the Interim Provisions on Labor Dispatch: "The employer shall strictly control the number of labor dispatched workers, and the number of dispatched workers shall not exceed 10% of its total employment." The total amount of labor referred to in the preceding paragraph refers to the sum of the number of labor contracts signed by the employer and the number of dispatched workers used. The employer that calculates the proportion of labor dispatch refers to the employer that can conclude labor contracts with workers in accordance with the Labor Contract Law and the Implementing Regulations of the Labor Contract Law. ”
• Article 35 of the Regulations for the Implementation of the Labor Contract Law of the People's Republic of China: "If the employer violates the Labor Contract Law and the relevant labor dispatch provisions of these Regulations, the labor administrative department and other relevant competent departments shall order corrections; if the circumstances are serious, a fine of not less than 1,000 yuan but not more than 5,000 yuan shall be imposed on each dispatched worker; if damage is caused to the dispatched worker, the labor dispatching unit and the employing unit shall be jointly and severally liable for compensation. ”