What rights do new economy workers such as delivery riders and party organizers demand? A court in Shanghai has released a white paper.

On December 11, the People’s Court of Xuhui District, Shanghai (hereinafter referred to as Shanghai Xuhui Court) released the “White Paper on Labor Disputes Related to New Employment Forms (Labor Disputes) from 2018 to 2023” (hereinafter referred to as the White Paper) and reported on the court’s adjudication of cases involving workers in new employment forms.

According to the White Paper, from 2018 to 2023, the Shanghai Xuhui Court accepted a total of 410 cases related to labor disputes in new employment forms, concluding 402 of them. Over the past six years, cases involving labor disputes in new employment forms have shown a trend of concentrated group cases while individual cases remained generally stable.

The White Paper indicates that, in terms of job types, over 50% of individual cases involved couriers or food delivery workers, aside from group cases. The plaintiffs were mostly workers, with litigation requests primarily focused on confirming labor relationships and claiming labor remuneration (such as wages, overtime pay, and performance bonuses). In terms of case resolution methods, the proportion of mediation and withdrawal of lawsuits in individual cases was low, and the proportion of judgments confirming labor relationships was also low.

To optimize the legal business environment for equal protection of various employment economic forms within its jurisdiction, the Shanghai Xuhui Court has implemented three main practices: first, promoting coordination and collaboration to form a working synergy; second, strengthening mediation efforts to enhance root cause governance; and third, providing targeted legal education to expand judicial functions.

The court also addressed the challenge of identifying the employer in accidents involving outsourced delivery riders, establishing labor relationships in such cases.

The Shanghai Xuhui Court presented six typical cases in the White Paper, covering new employment positions such as couriers, food delivery workers, and party hosts, showcasing the conflicts and disputes faced by workers in new employment forms during their labor provision.

One typical case involved a dispute over the confirmation of a labor relationship between a delivery rider from a fast-food delivery service and a service outsourcing company. In this case, the rider, Liu, was involved in a traffic accident while delivering food and sued to confirm a labor relationship with the outsourcing company. Previously, Liu had sued another unrelated company to confirm a labor relationship but was not supported. The first-instance court found that the outsourcing company had signed a labor agreement with Liu, clearly stating that the company arranged for Liu to work as a rider, and Liu accepted the company’s management and assessment, adhering to its rules. The outsourcing company had the right to manage and discipline Liu according to its regulations, and it paid Liu a monthly salary. Therefore, a labor relationship had been established between the two parties. The outsourcing company claimed that Liu had a labor relationship with the unrelated company, which contradicted the content of the labor outsourcing contract signed with the outsourcing company. Thus, the first-instance court confirmed the labor relationship between Liu and the outsourcing company. After the outsourcing company appealed, the second-instance court dismissed the appeal and upheld the original judgment.

The court noted that in recent years, the number of workers in new employment forms relying on internet platforms, such as couriers, food delivery workers, and ride-hailing drivers, has significantly increased. While these new employment forms expand job opportunities, they also raise new demands for the protection of workers’ rights due to characteristics such as flexible work locations, hours, and employment relationships. Currently, there are many issues regarding the occupational protection of workers in new employment forms, such as low contract signing rates, chaotic employment relationships, frequent occupational injuries, and inadequate insurance coverage, which need urgent resolution. The identification of labor relationships for workers in new employment forms still needs to follow general rules, considering whether there is a subordinate relationship under labor law. Specifically, this involves determining whether the company has signed a labor contract with the worker, whether it pays labor remuneration, and whether it manages the worker.

In another typical case, a labor contract dispute arose between a network technology company and a “party host.” In this case, Zhang joined the network technology company as a party host, responsible for recording fitness videos for members. The company terminated the labor contract, citing Zhang’s failure to meet performance standards and other issues. Zhang applied for labor arbitration, seeking compensation for the termination and wage differences, which was supported by arbitration. The company was dissatisfied and filed a lawsuit.

The court found that the company’s employee handbook categorized tardiness and absenteeism as minor and serious violations, respectively, and could not terminate an employee based solely on these grounds. Only severe violations that significantly hinder work progress could justify termination. The company had not clearly communicated performance targets to Zhang and had not terminated other employees who also failed to meet performance targets. Therefore, the company’s evaluation of Zhang’s performance was deemed neither objective nor fair, and the grounds for termination were insufficient. After clarifying legal provisions and potential risks, both parties reached a mediation agreement under the court’s guidance, resolving the dispute amicably.

The court emphasized that the rise of new employment forms has given birth to various new professions in cultural and tourism sectors, such as party hosts, script murder game masters, and cultural IP licensing specialists. These professions are characterized by innovative work content, high employment requirements, and significant challenges. When evaluating the performance of workers in new professions, employers should first set clear and specific performance targets and communicate them accurately to the workers. Secondly, they should objectively and fairly assess the workers’ performance to prevent arbitrary evaluations that could lead to disputes. Lastly, the reasons for termination should correspond to specific provisions in the company’s regulations to avoid double penalties or excessive punishments that could harm workers’ legitimate rights and interests.