The laborer has reached the legal minimum working age, has not exceeded the legal retirement age or has not received the basic old-age insurance benefits. Employers are enterprises, private non-enterprise units, individual economic organizations, state organs, institutions and social organizations established and existing according to law.

(2) The laborer actually accepts the management, guidance and supervision of the employer.

Workers provide labor according to the instructions and standards of the employer rather than their own will, and their labor process is supervised by the employer, which has the right to reward and punish them according to the contract, rules and regulations and relevant laws and regulations.

(3) Workers are brought into the production organization system of the employer to engage in labor, rather than engaging in independent business or business activities.

Laborers have the intention to join the employer as a member, and the employer also has the intention to manage it as a member of its organization. The labor provided by laborers is socialized labor with strong division of labor, and the labor results are a link or part of the final product of the employer rather than independent. If a laborer engages in business or business activities alone, and the results of his labor or business operations constitute an absorption relationship with the final product of the employer, it cannot be considered that the laborer provides labor on the premise of labor relations.

(4) Laborers have no right to subcontract their work to others.

Labor relations have both property attributes and personal attributes, and it is one of the manifestations of personal attributes that workers must provide their own labor. Employers hire workers to provide labor. On the one hand, they trust laborers' labor ability instead of others', on the other hand, they can manage the whole process of laborers' labor instead of just controlling the labor results. If the laborer subcontracts the work to others, it completely violates the essential attribute of labor relations and the fundamental purpose of establishing labor relations between the employer and the laborer.

(5) The means of production are generally provided by the employer.

In most labor relations, the means of production are provided by the employer, and the workers only provide labor remuneration, and get labor remuneration as consideration. In a few cases, workers will bring some means of production to provide labor, but these means of production are generally auxiliary and will not affect the essential attributes of labor relations. Moreover, when establishing labor relations, employers and employees generally make special agreements on bringing their own means of production. If there is no special agreement, it is assumed that the employer should provide the means of production.

(6) The labor provided by laborers is continuous rather than one-off.

The persistence of labor relations determines that the labor provided by workers must be continuous rather than one-off, which is one of the signs that labor relations are different from other similar legal relations, such as contract relations.

(7) The employing unit pays labor remuneration to the workers.

The employing unit may pay labor remuneration by itself, or entrust other units or natural persons to pay on its behalf. Labor remuneration is the consideration of labor remuneration, and its standard is stipulated by the Labor Standards Law. The payment level is based on the time or quantity of labor payment provided by workers, showing the characteristics of long-term basic stable payment, with few ups and downs.

(eight) the employer shall pay social insurance premiums for the workers and keep the personnel files of the workers.

Social insurance relations and file keeping relations are very important to the rights and interests of workers, but these relations are derived elements of labor relations and can only be used as auxiliary factors rather than decisive factors to judge the establishment of labor relations. We can be sure that the relationship between social security and file management will inevitably arise with labor relations, but we cannot assume that the relationship between social security and file management will inevitably produce labor relations. In practice, there are a large number of social security relations, archives entrusted management, etc., which easily lead to confusion in the identification of labor relations.

(9) The two parties agree to establish labor relations rather than other legal relations.

It is an important factor to judge whether the employer and the employee intend to establish labor relations instead of concluding contracts, labor services or other legal relations through written form, oral form or actual behavior.

Any party to the factual labor relationship may propose to terminate the labor contract that should be signed but not signed. In line with the characteristics of labor relations, the employer shall first sign a labor contract with the employee.

The term of the labor contract shall be determined by both parties through consultation.

Both parties fail to reach an agreement on the term of the labor contract through consultation. Either party may propose to terminate the labor relationship.

Laborers with factual labor relations may propose to sign an open-ended labor contract.

In the process of signing labor relations through consultation between the two parties, if the employee proposes to sign an open-ended labor contract, and the signing conditions stipulated by law are met, the employer and the employee shall sign an open-ended labor contract.

When the employer of a construction enterprise needs to undertake the mandatory construction of the employer and the subcontracting project of a mining enterprise, it is obliged to choose an organization with the qualification of the employer and bear joint and several liability for the subcontracting employer.

Prove the factual labor relations:

If the employer has not signed a labor contract with the employee, it may refer to the following documents when determining that there is a labor relationship between the two parties:

(a) payment vouchers or records (payroll), the payment of various social insurance premiums;

(2) Work Permit, Service Certificate and other documents that can prove the identity issued by the employer to the employee;

(3) Employment records such as Registration Form and Application Form filled out by employees;

(4) attendance records;

(5) Testimonies of other laborers.

Among them, the relevant documents in items (1), (3) and (4) shall be borne by the employer.

Legal basis:

Labor law of the people's Republic of China

Article 16 A labor contract is an agreement between a laborer and an employer to establish a labor relationship and clarify the rights and obligations of both parties.

To establish labor relations, a labor contract shall be concluded.

Article 17 The conclusion and modification of labor contracts shall follow the principles of equality, voluntariness and consensus through consultation, and shall not violate the provisions of laws and administrative regulations.

Sign a labor contract according to law

Article 26 Under any of the following circumstances, the employer may terminate the labor contract, but it shall notify the employee in writing 30 days in advance:

(1) The employee suffers from illness or non-work-related injury, and after the medical treatment expires, he can't engage in the original job or other jobs arranged by the employer;

(two) the laborer is not competent for the job, and he is still not competent for the job after training or adjusting his post;

(3) The objective conditions on which the labor contract was concluded have changed greatly, which makes the original labor contract impossible to perform and the parties cannot reach an agreement on changing the labor contract through consultation.

Forty-sixth wage distribution should follow the principle of distribution according to work and implement equal pay for equal work.

The wage level is gradually increased on the basis of economic development. The state exercises macro-control over the total wages.

Article 51 During legal holidays, wedding and funeral leave and participation in social activities according to law, the employing unit shall pay wages according to law.

Article 79 After a labor dispute occurs, the parties may apply to the labor dispute mediation committee of their own unit for mediation. If mediation fails and one party requests arbitration, it may apply to the Labor Dispute Arbitration Committee for arbitration. One party may also directly apply to the Labor Dispute Arbitration Commission for arbitration. Anyone who refuses to accept the arbitration award may bring a lawsuit to the people's court.

Notice on matters related to the determination of labor relations

second

If the employer has not signed a labor contract with the employee, it may refer to the following documents when determining that there is a labor relationship between the two parties:

(1) Vouchers or records of wage payment and records of payment of various social insurance premiums;

(2) Work Permit, Service Certificate and other documents that can prove the identity issued by the employer to the employee;

(3) Employment records such as Registration Form and Application Form filled out by employees;

(4) attendance records; Testimonies of other workers, etc.