Answer: The relationship between a family member of the boss or actual controller of the employer works for the employer is a special situation. Different from ordinary employment relationship between employee and employer, the relationship involves domestic affection and kinship. Whether the relationship is an employment depends on the closeness of the relationship between the boss and the employee, as well as the specific arrangements between the two parties and the nature of the work.
First of all, the closer the kinship, the lower the possibility of the establishment of employment relations. For example, when a work relationship involves between husband and wife, parents and children, or siblings, etc., the kinship and human relations between the two parties make it difficult to establish an employment relationship. Among these relationships, the closest civil legal relationship is between husband and wife, 1According to the law on marriage and family in China, the income of both spouses during marriage is the common property of the couple, and spouse is also the first heir. nearly making it impossible to form an employment relationship between them. For example, in the case of Fu Bin before Shenyang Intermediate People’s Court in 2022, the court held that the period during which the employee claimed unpaid wages was the period during which there was a husband-wife relationship between the employee and the investor of the employer. Therefore there was no employment relationship between the two parties during the period, and the wages claims were not upheld.2Judgment of Second Instance of Employment Dispute between Fu Bin and Shenyang Tongtai Automobile Driver Training Center Civil Judgment of Shenyang Intermediate People’s Court of Liaoning Province (2022) Liao 01 Min Zhong No.9996.Similarly, the work relationship between father, son, and brothers are also not likely to be considered employment relationship based on human ethics and morality.
Secondly, assessing the work relationship between non-family members or ordinary relatives also needs to consider the work arrangement and nature of both parties. If this arrangement conforms to the core characteristics of employment relations, including economic, organizational, and personal subordination or dependence, and the family member is bound by the company rules to work as other employees are, the two parties are likely to constitute employment relationship. However, if this arrangement is a kind of family business management and family mutual assistance, the family member (the worker) also participate in the management and operation, and can freely decide whether to come to the office, then the employer may have no management authority over the family member. In this case, employment relationship is unlikely to be recognized.3Civil Judgment of Second Instance of Employment Dispute between Peng Guilian and Linghaobo Civil Judgment of Nanning Intermediate People’s Court of Guangxi Zhuang Autonomous Region (2020) Gui 01 Min Zhong No.2597. ¡°Secondly, there is a special family relationship between Peng Guilian and Ling Haobo. Peng Guilian worked in the farm run by Ling Haobo, which originally based on the equal and mutual assistance relationship between family members. This is essentially different from the personal subordination of employment relations. Looking at the evidence submitted by Peng Guilian in this case, it is difficult to conclude that Ling Haobo has implemented employment management over her. During her work in the farm, Peng Guilian lived and ate in the farm most of the time, had free access to work and rest, did not need any attendance, and had strong independence and autonomy in her work. This is obviously different from the general employment relations. Therefore, the Court does not recognize the existence of employment relations between Peng Guilian and Ling Haobo.¡± Employment Dispute between Zheng Chunrong and Dalian Xinmingsheng Automobile Repair Factory Civil Judgment of Dalian Intermediate People’s Court of Liaoning Province (2016) Liao 02 Min Zhong No.7248. ¡°The Appellee was invested and founded by the Appellant’s mother-in-law Sun Zhenyun. Alongside with the Appellant and her husband Wang Yusheng, Sun Zhenyun’s three sons and daughters-in-law all work in the factory, and their work income is the main source of family income. As far as the business model and the way of providing labor stated by both parties are concerned, it is a fact that the appellant provides labor to the appellee, but the relationship between the two parties is not between the employee and the employer; The Appellant’s work in the Appellee’s office is actually a business activity. The Appellee does not have the right to manage the personnel and business of the Appellant. Therefore, the relationship between the Appellant and the Appellee does not have the basic characteristics of an employment relationship. It is not improper for the court of first instance to determine that there is no employment relationship between the Appellant and the Appellee.¡±
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- 1According to the law on marriage and family in China, the income of both spouses during marriage is the common property of the couple, and spouse is also the first heir.
- 2Judgment of Second Instance of Employment Dispute between Fu Bin and Shenyang Tongtai Automobile Driver Training Center Civil Judgment of Shenyang Intermediate People’s Court of Liaoning Province (2022) Liao 01 Min Zhong No.9996.
- 3Civil Judgment of Second Instance of Employment Dispute between Peng Guilian and Linghaobo Civil Judgment of Nanning Intermediate People’s Court of Guangxi Zhuang Autonomous Region (2020) Gui 01 Min Zhong No.2597. ¡°Secondly, there is a special family relationship between Peng Guilian and Ling Haobo. Peng Guilian worked in the farm run by Ling Haobo, which originally based on the equal and mutual assistance relationship between family members. This is essentially different from the personal subordination of employment relations. Looking at the evidence submitted by Peng Guilian in this case, it is difficult to conclude that Ling Haobo has implemented employment management over her. During her work in the farm, Peng Guilian lived and ate in the farm most of the time, had free access to work and rest, did not need any attendance, and had strong independence and autonomy in her work. This is obviously different from the general employment relations. Therefore, the Court does not recognize the existence of employment relations between Peng Guilian and Ling Haobo.¡± Employment Dispute between Zheng Chunrong and Dalian Xinmingsheng Automobile Repair Factory Civil Judgment of Dalian Intermediate People’s Court of Liaoning Province (2016) Liao 02 Min Zhong No.7248. ¡°The Appellee was invested and founded by the Appellant’s mother-in-law Sun Zhenyun. Alongside with the Appellant and her husband Wang Yusheng, Sun Zhenyun’s three sons and daughters-in-law all work in the factory, and their work income is the main source of family income. As far as the business model and the way of providing labor stated by both parties are concerned, it is a fact that the appellant provides labor to the appellee, but the relationship between the two parties is not between the employee and the employer; The Appellant’s work in the Appellee’s office is actually a business activity. The Appellee does not have the right to manage the personnel and business of the Appellant. Therefore, the relationship between the Appellant and the Appellee does not have the basic characteristics of an employment relationship. It is not improper for the court of first instance to determine that there is no employment relationship between the Appellant and the Appellee.¡±