Research On Legal Issues Regarding The Development Of Shared Employment In The “post-epidemic Era??

The development of shared employment in the post-epidemic era mainly faces the three dilemmas :unclear legal relationship、illegal labor dispatch and protection of labor rights,and there exists certain practical confusions and divergences among them: "Unclear legal relationship" is mainly manifested in the shared employment as a new form of flexible employment,and the legal relationship between the lending company,borrowing company,and loaned employee involved in it is disputed,which needs to be further clarified by the law;"illegal labor dispatch" is mainly manifested in the shared employment is similar to labor dispatch in many aspects.Many companies that do not have the qualifications for labor dispatch may use the name of "shared employment " to make labor dispatch;"protection of labor rights" is mainly manifested in the shared employment involving tripartite entities,and there are still relatively large legal loopholes in the distribution of the employer’s responsibilities between the lending company and the borrowing company relative to the loaned employee.In order to solve the above problems,it is necessary to analyze the feasibility of shared employment in the post-epidemic era and the three specific dilemmas faced,and at the same time build a response to the development of shared employment in the postepidemic era by learning from practice and the experience of foreign systems.As far as the "feasibility of shared employment in the post-epidemic era" is concerned,shared employment is a new form of employment during the epidemic,and it is essentially an important way for enterprises to adjust and coordinate the surplus labor shortage.The efficiency of resource allocation and job stabilization are of great significance.The long-term feasibility of shared employment can be discussed based on three aspects: domestic policy encouragement,comparison of foreign systems,and the advantages of shared labor systems.In terms of "domestic policies",during the epidemic,the country and various localities have successively introduced policies to regulate and encourage the development of shared employment,hoping to use special labor forms to alleviate the problem of human resource allocation imbalance caused by the epidemic in special periods.At the end of 2020 and after 2021,when the epidemic is relatively easing,the Ministry of Human Resources and Social Security and various localities have successively issued notices to do a good job in shared employment guidance and services.In terms of "comparison of extraterritorial systems",by learning from the relevant systems and practices of the United States and Europe that are similar to China’s shared employment,it is found that China’s shared employment is still in its infancy,and there is still a certain gap compared with the development of Western countries.Therefore,shared employment in China still has a relatively large room for development.In terms of the "superiority of the shared employment system",shared employment has its own unique advantages compared to other existing forms of employment,which is the reason why shared employment played a vital role during the epidemic,while other forms of employment did not achieve it.Shared employment can effectively realize the efficient allocation of labor resources,and further expand the scope of seconded units,so that labor can achieve a more extensive flow and allocation.The newly emerging forms of shared employment are also a useful supplement to the employment model in the context of the sharing economy.In terms of "unclear legal relationship",shared employment is a new form of flexible employment.It has many similarities with other forms of flexible employment,such as labor dispatch,labor outsourcing,and secondment.Therefore,it is first necessary to distinguish it from other forms of employment,and make it clear that it does not belong to the flexible employment form that has existed before.Secondly,in terms of the legal relationship structure of shared employment,there exist three parties in shared employment,including borrowing companies,lending companies,and lent employees.If shared employment wants to achieve its long-term development,it is particularly important to clarify the legal relationship between the three parties.As far as "illegal labor dispatch" is concerned,because shared employment does not require companies to have specific qualifications,companies that do not have labor dispatch qualifications may use the name of shared employment to make profit.And labor dispatch has certain limitations-Intermediate exploitation and non-employment demand orientation.In the development process of shared employment,we must strictly prevent turning to labor dispatch in disguise.Compared with labor dispatch,shared employment has its unique advantages—a breakthrough in the proportion of labor and the “three characteristics”.Shared employment does not have the proportional restriction on the number of dispatched workers that labor dispatch has,and unlike labor dispatch as an intermediate provider of human resources,shared employment can realize the direct connection of needs between enterprises and enterprises,which is also beneficial to workers’ rights protection.In order to prevent shared employment from shifting to disguised labor dispatch,and summarize practical problems and practical experience,the following suggestions can be made: adhere to the non-profit principle of shared employment;adhere to the principle of qualification restriction,shared employment is limited to companies with direct needs,with labor dispatch qualified companies must not intervene in the shared employment business;build a shared employment platform of government-supervised enterprises.If the shared employment model is to become the norm and achieve long-term development,the construction of intelligent platforms must be in the forefront.At the same time,the development of the platform also requires government departments to carry out corresponding supervising measures to achieve the standardization of the shared employment platform.In terms of " shared employment rights protection",shared employment is an emerging flexible employment model.As the current law has not yet made clear and specific regulations on the shared employment model,as a vulnerable group,workers’ rights and interests are more vulnerable to infringement.Compared with other forms of employment,the protection of labor rights and interests of shared employment has its particularity,which is mainly manifested in labor autonomy and standardized management of loaned employees.Secondly,shared employment involves two companies—the borrowing company and the lending company.Only when both companies actively undertake their employment responsibilities and divide employers’ responsibilities can they truly protect the rights and interests of workers.The division of employer’s liability mainly involves work-related injury insurance liability and wage payment liability.The borrowing company and the lending company must agree on the relevant principal responsibilities,so that the rights and interests of shared employment can be protected to the greatest extent.Summarizing the practical problems and practical experience,we can put forward the following suggestions on protecting the rights and interests of workers: realize the convergence of mediation 、arbitration and trial,make full use of various dispute resolution mechanisms;strengthen the protection of labor union organizations and industry associations,and give full play to the advantages of both coordinate labor relations and adjust the role of social conflicts;improve the employment training mechanism,establish an effective information sharing and training mechanism,make predictions in advance、share information and provide corresponding skills training in accordance with market changes.Shared employment is a new form of employment,and the relevant labor laws have not made clear and specific regulations on it,but this model has played a huge role during the epidemic.It is believed that the guidance and regulation of shared employment in the post-epidemic era will lead to long-term development and play a greater role.We are not only adhere to the consistent thinking of labor law to protect the legitimate rights and interests of workers,but also consider protecting the actual situation of normal business operations.The focus is to build a stable shared employment relationship,so as to help companies and workers tide over difficulties.