Answer: In principle, pure volunteers are not considered as workers under the legal system of employment law. However, in practice, employers may grant subsidies or provide benefits such as allowances or reimbursement to volunteers, at which time the situation will be somewhat complicated. The court will examine the agreement between the two parties, whether there is remuneration, the name and amount of remuneration, and other factors to determine whether there is a situation of evading employment law obligations in the name of volunteers.
For example, in the case of Huang Yingying before Bijie Intermediate Court of Guizhou Province in 2021, the court held that although a kindergarten had signed a volunteer service agreement with Huang Yingying, the agreement stipulated such matters as remuneration and social insurance under employment law, and therefore the two parties were considered to have a substantive employment relationship.1Dafang County Central Kindergarten, Huang Yingying Employment Dispute Civil Judgment of Second Instance Civil Judgment of Bijie Intermediate People’s Court of Guizhou Province (2021) Qian 05 Min Zhong No.5176.
However, when the employer is a government department, the court tends to focus on examining the name of the volunteer agreed by both parties, and less on essential matters such as whether the volunteer receives remuneration and social insurance. For example, in the case of Xiang Yonghong before the Chongqing High Court in 2018, although a subdistrict office employed volunteers and contributed their pension insurances, the court still denied employment relationship on the basis of the agreed volunteer agreement between the two parties. The case of Hu Guoxing in Shanxi Provincial High Court in 2017 is similar.2Xiang Yonghong and Chongqing Wanzhou District Disabled Persons’ Federation Chongqing Wanzhou District Gaosuntang Subdistrict Office Employment Dispute Appeal and Application for Retrial Civil Ruling Chongqing High Court Civil Ruling (2018) Yu Min Shen No.2263. Hu Guoxing v. Yangquan Public Security Bureau Employment Dispute Civil Ruling of Shanxi Provincial People¡¯s High Court (2017) Jin Min Shen No.154.
We believe that the law should be implemented in accordance with a unified standard, no matter who the employer is, it should strictly examine the personal dependence relationship between volunteers and the employer and the subjective understanding of the relationship between the two parties, considering remuneration, social insurances, work management, and other aspects, to determine whether the two parties are under employment relations. See How do I distinguish between an employment relationship and a contractor relationship?
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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
- 1Dafang County Central Kindergarten, Huang Yingying Employment Dispute Civil Judgment of Second Instance Civil Judgment of Bijie Intermediate People’s Court of Guizhou Province (2021) Qian 05 Min Zhong No.5176.
- 2Xiang Yonghong and Chongqing Wanzhou District Disabled Persons’ Federation Chongqing Wanzhou District Gaosuntang Subdistrict Office Employment Dispute Appeal and Application for Retrial Civil Ruling Chongqing High Court Civil Ruling (2018) Yu Min Shen No.2263. Hu Guoxing v. Yangquan Public Security Bureau Employment Dispute Civil Ruling of Shanxi Provincial People¡¯s High Court (2017) Jin Min Shen No.154.