Answer: Whether you are entitled to remuneration, first of all, depends on whether you and the employer have formed an employment relationship. It is a complex legal and factual matter whether the interns engaged in work for an employer constitute an employment relationship.
The relationship between students in a school work-study program and the employer is generally not an employment relationship.1Article 12 of the Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law of the People’s Republic of China: “Students who use their spare time to work and study are not regarded as employed, and if they have not established employment relationships, they may not sign employment contracts.”Work-study program is an activity that is organized by schools and aims to help students learn practical skills in enterprises.2Article 4 of the Measures for the Administration of Work-study Programs for Students of Institutions of Higher Learning: The term “work-study programs” as mentioned in these Measures refers to the social practice activities in which students, under the organization of the school, use their spare time to obtain legal remuneration through labor and use it to improve their study and living conditions. Article 23: “An off-campus employer that employs a student on a work-study program shall submit an application to the school student work-study program management service organization, and provide a copy of the legal person qualification certificate and relevant supporting documents.” After examination and approval, the school student work-study management service organization recommends students who are suitable for the work requirements of the employers to participate in work-study activities.¡±Current judicial decisions show that work-study programs that meet the two characteristics mentioned above are generally not recognized as having employment relationships.3Labor Dispute between Zhou Yanru and Foshan Nanhai Taoyuan Golf Club Co., Ltd. Civil Judgment of Guangdong Foshan Intermediate People’s Court (2016) Yue 06 Min Zhong No.5035, Application for Labor Dispute between Wu Yiping and Chongqing Vocational College of Architectural Engineering Civil Ruling of Chongqing High Court (2013) Yu Gao Fa Min Shen Zi No.00838.
However, if a student continues to work for the employer after the end of the work-study program (for example, the student has graduated or the internship arranged by the school has expired), it is likely to be recognized as an employment relationship. 4Civil Judgment of Second Instance of Labor Dispute between Huang Ruoting and Shaoguan Style Real Estate Hotel Co., Ltd. Civil Judgment of Intermediate People’s Court of Shaoguan City, Guangdong Province (2016) Yue 02 Min Zhong No.5.Another controversial situation is that students who meet the legal working age formally work for an employer under no school arrangements, and some court decisions have identified them as employment relationships,5Labor Dispute Case between Jiangmen Jiashida Industrial Co., Ltd. and Yang Junzhuo Civil Judgment of Guangdong Jiangmen Intermediate People’s Court (2017) Yue 07 Min Zhong No.1686, Changsha Sanitary Products Co., Ltd. V. Dai Lanping and Other Labor Dispute Cases Civil Ruling of Hunan High Court (2017) Xiang Min Shen No.2632, Bulletin of the Supreme People’s Court No.6, 2010 (Total No.164), 2009 Jiangsu Nanjing Intermediate People’s Court Guo v. Jiangsu Yifeng Pharmacy Chain Co., Ltd Labor dispute: whether the worker is a student does not affect the validity of the employment contract. ¡°As long as the students who have not graduated have reached the legal age of employment, they have the qualification of labor subject and enjoy the right to work. If the employer knows that the worker is a student when concluding the contract, and both parties have signed the employment contract and performed it in accordance with the contract, the contract does not violate the provisions of laws and regulations, and there is no fraud or threat. Therefore, it should be regarded that the employment contract is legal and effective, and the employment relationship is established.¡±while others still identify them as interns’ work-study and deny employment relationships. 6Yu Qian and Liaoyang Radio and Television Station Labor Dispute Retrial Review Civil Ruling Liaoning Provincial People¡¯s High Court Civil Ruling (2022) Liao Minshen No.2635, Shenzhen Sisini Jewelry Design Studio, Hong Xiaoqing Labor Dispute Civil Judgment of Second Instance Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2019) Yue 03 Min Zhong No.16676.
Based on the current judicial decisions, the main factors to judge the existence of employment relationships for students include: the age of the student and whether there is any concealment of age and student status, whether the two parties have signed an employment contract, whether the student has completed their studies, the purpose and intention of both parties for employment, the nature of the employer (for example, if the internship organization is a state organ, it may be more difficult to identify employment relationships), and especially the benefits of the student internship to the employer (for example, the student is used by the employer as a formal worker). Courts usually make a decision based on the above factors.
Secondly, if the employer and the student do not constitute an employment relationship and thus constitute a contractor relationship, but the two parties have agreed on remuneration, then the student can also request remuneration according to the agreement. Of course, the student can not get the protection of the rights under employment law, such as minimum wage, double-wage damages in the absence of a written employment contract, and so on. However, some of the employment rights such as work injury entitlements are still available to these students.
Therefore, whether you are entitled to be paid depends on the specific circumstances. If you are a student in school, but work for the company that you reached out on your own, and the employer also treats you as a formal employee, you are likely to have formed an employment relationship with the employer, then the employer¡¯s refusal to pay you because you are a student in school violates the provisions of employment law. However, if you are a work-study student arranged by the school, and the school and the employer have a detailed internship agreement stipulating that the internship is not paid, the agreement should be valid unless there are special circumstances (for example, the nature of the student’s formal replacement of workers far exceeds the nature of social practice for learning and improvement). Even if the two parties do not constitute an employment relationship, the agreed remuneration for labor services is still binding on the employer.
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Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
Email: wangdong@royalaw.com
- 1Article 12 of the Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law of the People’s Republic of China: “Students who use their spare time to work and study are not regarded as employed, and if they have not established employment relationships, they may not sign employment contracts.”
- 2Article 4 of the Measures for the Administration of Work-study Programs for Students of Institutions of Higher Learning: The term “work-study programs” as mentioned in these Measures refers to the social practice activities in which students, under the organization of the school, use their spare time to obtain legal remuneration through labor and use it to improve their study and living conditions. Article 23: “An off-campus employer that employs a student on a work-study program shall submit an application to the school student work-study program management service organization, and provide a copy of the legal person qualification certificate and relevant supporting documents.” After examination and approval, the school student work-study management service organization recommends students who are suitable for the work requirements of the employers to participate in work-study activities.¡±
- 3Labor Dispute between Zhou Yanru and Foshan Nanhai Taoyuan Golf Club Co., Ltd. Civil Judgment of Guangdong Foshan Intermediate People’s Court (2016) Yue 06 Min Zhong No.5035, Application for Labor Dispute between Wu Yiping and Chongqing Vocational College of Architectural Engineering Civil Ruling of Chongqing High Court (2013) Yu Gao Fa Min Shen Zi No.00838.
- 4Civil Judgment of Second Instance of Labor Dispute between Huang Ruoting and Shaoguan Style Real Estate Hotel Co., Ltd. Civil Judgment of Intermediate People’s Court of Shaoguan City, Guangdong Province (2016) Yue 02 Min Zhong No.5.
- 5Labor Dispute Case between Jiangmen Jiashida Industrial Co., Ltd. and Yang Junzhuo Civil Judgment of Guangdong Jiangmen Intermediate People’s Court (2017) Yue 07 Min Zhong No.1686, Changsha Sanitary Products Co., Ltd. V. Dai Lanping and Other Labor Dispute Cases Civil Ruling of Hunan High Court (2017) Xiang Min Shen No.2632, Bulletin of the Supreme People’s Court No.6, 2010 (Total No.164), 2009 Jiangsu Nanjing Intermediate People’s Court Guo v. Jiangsu Yifeng Pharmacy Chain Co., Ltd Labor dispute: whether the worker is a student does not affect the validity of the employment contract. ¡°As long as the students who have not graduated have reached the legal age of employment, they have the qualification of labor subject and enjoy the right to work. If the employer knows that the worker is a student when concluding the contract, and both parties have signed the employment contract and performed it in accordance with the contract, the contract does not violate the provisions of laws and regulations, and there is no fraud or threat. Therefore, it should be regarded that the employment contract is legal and effective, and the employment relationship is established.¡±
- 6Yu Qian and Liaoyang Radio and Television Station Labor Dispute Retrial Review Civil Ruling Liaoning Provincial People¡¯s High Court Civil Ruling (2022) Liao Minshen No.2635, Shenzhen Sisini Jewelry Design Studio, Hong Xiaoqing Labor Dispute Civil Judgment of Second Instance Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2019) Yue 03 Min Zhong No.16676.