They are all "people in a hurry", but the identity of food delivery riders is also different: some are "crowdsourced riders" who can take orders independently and deliver as they please only during late night snacks; Some "preferred riders" must accept platform delivery instructions without negotiation, and their income is also composed of platform wages and order delivery fees. Different types of riders are trapped in the dilemma of "identity recognition". Recently, the Intermediate People's Court of Suzhou City, Jiangsu Province, made a second instance judgment on a confirmed labor relationship dispute between a "preferred rider" and a food delivery platform partner. The "Preferred Rider" was injured and reported to the platform partner. In June 2021, Xiaoyang (pseudonym), who had a daily job, registered as a "crowdsourcing rider" on a certain food delivery platform for the purpose of earning more money. In his spare time, he rode an electric bike through the streets and alleys, deciding how many orders to run every day according to his own time, earning about tens of yuan. "He was very free, taking orders if he wanted to, and not if he didn't want to." After a year, Xiaoyang resigned from his official job in July 2022 and joined the platform partner's "Preferred Program", becoming a "Preferred Rider". The daily income has increased to over 300 yuan, at the cost of having several check-in groups on his phone and being chased by various data indicators every day: completing at least 5 orders during peak hours, reporting at least 1 week in advance for leave, and meeting all assessment indicators... Unfortunately, less than a month after becoming a "preferred rider", Xiaoyang suffered a car accident while delivering food, resulting in a fracture and a level 9 disability. The platform partner has applied for occupational injury recognition for it. But after receiving a one-time disability subsidy of more than 50000 yuan, Xiaoyang couldn't be happy: "To clock in and have assessments, isn't this just going to work seriously? Why can't it be considered a work-related injury?" After further inquiry, if it is determined as a work-related injury, he can at least receive compensation of more than 100000 yuan. Xiaoyang believes that the failure of platform partners to declare work-related injuries constitutes infringement, and therefore applies for arbitration to confirm the employment relationship. The arbitration was not supported, so he filed a lawsuit with the court. After receiving support from the first instance judgment, the platform partner appealed against the decision. How to determine labor relations during the second instance, Suzhou Intermediate People's Court first identified the differences between different riders: there are significant differences between crowdsourced riders and preferred riders in registration methods, dispatching methods, management methods, salary composition, and settlement. For example, when the platform dispatches orders to crowdsourced riders, they can choose to accept or not accept the order. Once the order is confirmed to be accepted, they should fulfill it as agreed, and the salary settlement is also calculated based on the completion of the delivery; Preferred riders must first join the "Preferred Plan" and cannot withdraw at will in the short term. Platform assigned riders cannot be refused without reason, and the relevant management assessment is also very strict. Once the plan requirements are not met, they will be restored to crowdsourced riders... The judge's trial believes that if the worker claims to have a labor relationship with the platform enterprise or platform employment cooperative enterprise, the people's court should make corresponding determinations based on the employment facts, comprehensively consider the degree of autonomy of the worker in determining working hours and workload, the degree of management control over the labor process, whether the worker needs to comply with relevant work rules, algorithm rules, labor discipline and reward and punishment methods, the continuity of the worker's work, whether the worker can decide or change the transaction price, and other factors in accordance with the law. For the existence of employment facts that constitute dominant labor management, the existence of labor relations should be recognized in accordance with the law. The judge believes that in this case, the platform's employment cooperative enterprise has formed dominant labor management over Xiaoyang. Based on the analysis of WeChat chat records between Xiaoyang and the captain of the Optimal Rider Team, after joining the "Optimal Rider Plan", Xiaoyang accepted the team leader's daily work management, including scheduling and rest adjustment, as well as the team leader's clear requirements for Xiaoyang's online time, peak online time, delivery order quantity, on-time rate, completion rate, etc. according to the introduction and application requirements of the Optimal Rider Plan. The above behavior of the team leader belongs to the performance of duties on behalf of the company involved in the case, and the legal consequences of his management behavior should be borne by the employing company. Second instance: Management has obvious dominance, and the judge believes that the above management facts are sufficient to reflect that Xiaoyang has no substantial autonomy in deciding whether to accept orders, when to accept orders, and the content of orders in the process of providing labor. Daily work is subject to the company's management command and control constraints, and there is a clear relationship between the two parties in terms of management and being managed. Moreover, the company's management of Xiaoyang has obvious dominant characteristics. The judge believes that based on the analysis of the sources of remuneration received by Xiaoyang after providing labor, there is a dependency characteristic. The salary and remuneration of Xiaoyang are calculated by the site involved in the case, which not only includes remuneration calculated on a per unit basis, but also includes other constituent items, reflecting the corresponding assessment of Xiaoyang's work situation by the company involved in the case, and based on this, settling the salary and remuneration with him. Therefore, as a preferred rider, Xiaoyang's labor is closely related to his salary and remuneration. The labor remuneration he receives after providing labor also comes from the company involved in the case, and constitutes his main source of income. Xiaoyang has a high degree of economic dependence on the company involved in the case. In summary, the judge determined that the platform cooperative company involved in the case formed dominant labor management over Xiaoyang, and Xiaoyang had a clear economic dependence on the employing company for the labor provided, which is in line with the essential characteristics of labor relations. Therefore, the judgment concluded that there is a labor relationship between the two parties. Xiaoyang also stated that after the effective date of this case, he will apply to the human resources and social security department to revoke the occupational injury recognition of new employment forms, and re evaluate the work-related injury recognition and level according to the work-related injury declaration process. 【 Observation and Reflection 】 New business practitioners should be given the right to choose remedies. Another controversial point in the second instance of this case is whether Xiaoyang can claim to confirm the labor relationship and declare the work-related injury after confirming the occupational injury in the new employment form? The court believes that the recognition of occupational injuries among new forms of employment is to ensure that new forms of employment employees who have suffered occupational injuries receive medical treatment and economic compensation, strengthen occupational injury prevention, and diversify the occupational injury risks of platform enterprises; The confirmation of work-related injuries is to ensure that employees who suffer from accidents or occupational diseases due to work receive medical treatment and economic compensation, promote work-related injury prevention and occupational rehabilitation, and disperse the work-related injury risks of employers. In practice, platform enterprises pay occupational injury protection fees to new forms of employment employees who register and accept orders through the platform, provide labor such as travel, food delivery, instant delivery, and local freight in the name of the platform, and receive remuneration or income. The above platform's all employee insurance model is based on the total number of platform orders, rather than individual new forms of employment employees participating in insurance based on legal relationships. This may result in competition between new forms of employment employees applying for occupational injury confirmation and work-related injury recognition. When there is a competition between the application for occupational injury confirmation and work-related injury recognition by new forms of employment, the right to choose relief should be granted to new forms of employment. In this case, although Xiaoyang was confirmed to have suffered occupational injuries as a new form of employment worker through declaration, it is not sufficient to determine that he has no right to further apply for work injury recognition by confirming the existence of a labor relationship between him and the company involved in the case. That is to say, when there is a competition between the application for occupational injury confirmation and work-related injury recognition, if the platform enterprise and the platform employing enterprise form dominant labor management over the workers and there is a factual labor relationship between the two parties, the principle of factual priority should be adhered to, and new employment forms should be given the right to choose occupational injury protection relief or work-related injury insurance relief. However, based on the same accident injury, they cannot enjoy both work-related injury benefits and occupational injury protection benefits at the same time. (New Society)