On December 22, the First Intermediate People's Court of Shanghai (hereinafter referred to as the "Shanghai First Intermediate People's Court") held a press conference on the White Paper on the Protection of Labor Rights and Interests in New Forms of Employment (hereinafter referred to as the "White Paper"), announcing the overall situation of the trial of labor dispute cases related to new forms of employment in the past four years by the Shanghai First Intermediate People's Court, and releasing six typical cases. The reporter noticed that the most involved cases are the labor rights protection of food delivery riders and live streamers. The white paper shows that from January 1, 2022 to October 31, 2025, the number of second instance labor dispute cases involving new business formats concluded by the Shanghai First Intermediate People's Court has shown a slight upward trend year by year. From the occupational distribution of the parties involved in the lawsuit, riders account for 32%, the highest proportion; In addition, it also includes e-commerce operators such as couriers and customer service, hosts, bloggers, and ride hailing drivers. It is worth noting that more than half of these cases involve requests for confirmation of labor relations, as well as requests for payment of wage differentials, overtime pay, and conversion of unused annual leave into wages. Fang Fang, the presiding judge of the Civil Trial Chamber of Shanghai First Intermediate People's Court, introduced that "confirming labor relations" is a new challenge facing the rights protection of employees in the current new business model. The confirmation of labor relations itself is a prerequisite for practitioners to be protected by labor laws and regulations. In a case, delivery rider Xia worked at a T company site and received orders through the platform app. The remuneration was settled based on the delivery order number (6 yuan/order, 7 yuan/order for monthly orders exceeding 900). T company provided electric scooters but deducted the rental fee from the remuneration, and did not handle employment registration for Xia. After working for six months, T company removed Xia from the work group and banned his platform account, resulting in his inability to work. Therefore, Xia filed a lawsuit with the court, demanding that T company pay a wage difference of 800 yuan and compensation of 9881.50 yuan for illegal termination of the labor contract. Although Xia was able to provide WeChat chat records as evidence, such as T company organizing daily morning meetings, establishing violation penalty rules, and requiring Xia to comply with fixed commuting times, the court still held that Xia failed to provide sufficient evidence to prove that he was under T company's management and that the two parties did not have personal and economic attributes of a labor relationship. Xia appealed to the Shanghai First Intermediate People's Court as a result. In the second instance, the court held that T company had implemented daily employment management on Xia through behaviors such as name calling during morning meetings, fines for violations (such as taking the wrong meal, exceeding the time limit, and absent from morning meetings), and fixed working hours, which were in line with the core characteristics of personal subordination in labor relations. After determining the employment relationship, according to T Company's regulations, the rider can only be persuaded to withdraw after refusing the order twice, but the company directly terminated Xia's employment relationship on the grounds of refusing the order once, lacking factual basis. The court considers the action to be illegal termination, and the second instance supports Xia's claim. The presiding judge told reporters that the determination of labor relations between new format food delivery riders and employers needs to break through the superficial forms of "piece rate compensation" and "flexible order taking", and focus on examining the essence of enterprise employment management. "Under the platform economy, dominant labor management behavior is the core of judging labor relations, and labor relations cannot be denied solely on the grounds of flexible employment". The white paper points out that the complex employment structure of the current platform makes it difficult to identify actual employers. Many practitioners themselves find it difficult to accurately determine the counterpart of their labor relationship, and there are cases where they wrongly accuse the employer, which increases the cost of safeguarding their rights. The limited evidence they can provide also poses certain challenges for the court to accurately identify the actual employer. Individual employers rack their brains to design "de employment relations". Judges have found in practice that some companies have specifically designed "de employment relations" to reduce labor costs. By signing various civil agreements with new industry employees, they intend to exclude the application of labor laws, and even guide and force employees to register individual businesses and provide corresponding services under the name of individual business cooperation. However, in the actual implementation of the agreement, the relevant enterprises impose mandatory labor management on their employees, which leads to certain difficulties in accurately judging the true intentions of the two parties and determining the nature of their legal relationship in court trials. On one hand, the platform or its cooperative enterprises often design "labor relations", while on the other hand, they often use various mechanisms such as "algorithm guidance, salary design, customer evaluation mechanism, and disciplinary measures" to control employees more strictly and implicitly in essence. This makes the identification of labor attributes and dominant labor management complex. The white paper states that currently, the opacity of algorithms makes it difficult to accurately calculate the labor remuneration of practitioners. And this algorithm rule is usually unilaterally controlled by the platform enterprise, making it difficult for practitioners to obtain, resulting in a dilemma for practitioners to provide evidence when disputes arise. On the one hand, opaque algorithms can achieve precise and covert technical control over employees in new business formats, while on the other hand, the tendency towards "de labor relations" in employment leads to weak links in the protection of labor rights. In a case, the judge needs to penetrate multiple affiliated companies and uncover the "veil" of layered mixed employment in order to identify the real employer. Y Company is the operating entity of a certain food delivery platform. In January 2024, it signed a "Service Contract" with L Company, entrusting the delivery business of a certain site to L Company. L Company holds 100% of shares in E Company and H Company. In April 2024, Liu was instructed by the platform staff to scan the QR code and sign a "Freelance Service Cooperation Agreement" with Company E to work as a delivery person at a certain site. Liu needs to use the app for attendance and be managed by the webmaster. His salary will be paid by Company H. After Liu was injured on April 14, 2024, he applied to confirm the existence of a labor relationship with L Company from April 5, 2024 to April 14 of the same year. The judge of Shanghai First Intermediate People's Court found during the trial that both E Company and H Company are subsidiaries of L Company, which holds 100% of the shares. E Company's service scope is in Henan, which is completely different from Liu's actual workplace in Shanghai. The presiding judge said, "It can be seen that the 'Freelancer Service Cooperation Agreement' is a formal agreement arranged by L Company to avoid labor relations, and Liu and E Company have no real intention of cooperation. ”During this process, Liu's onboarding, management, and compensation were actually led by Company L, while Company E and Company H only played the roles of signing and paying entities respectively. Finally, the court determined that Liu had a labor relationship with Company L. The presiding judge believes that in the field of food delivery, employers who evade labor relations by subcontracting formal business and requiring riders to register as individual businesses cannot conceal the substantive labor relations. In addition to food delivery riders, internet anchors are also the "protagonists" in labor dispute cases involving new business formats, which are often troubled by unclear agreements on "non compete" for internet anchors. Their dilemma often lies in 'competition restrictions'. Zhang joined F Company as a live streamer in March 2020 and signed a non compete agreement with the company. The agreement stipulates that within two years after the termination or dissolution of the employment relationship, Zhang shall not engage in self operated or operated businesses that compete with F Company for others. There are also non compete compensation and breach of contract responsibilities. The condition for triggering the non compete agreement is that the employee has 100000 or more followers on the "Anchor Expert Account" and the sales revenue in any single month reaches 2 million yuan. In August 2021, both parties terminated their employment relationship. F Company requests Zhang to pay a penalty of 916354 yuan for breach of contract and continue to fulfill his non compete obligations. The reason is that the two anchor accounts used by Zhang during his tenure have a combined fan base of over 100000. The first account is a registered account of Company F, shared by multiple people, with over 100000 followers; The second account is a personal account of Zhang, with less than 100000 followers at the time of resignation. The judge of Shanghai First Intermediate People's Court held that in the case of ambiguity in the meaning of the non compete clause, confirmation should be based on the usual meaning of the words and phrases. During his tenure, Zhang shared a company registered account with other anchors and did not use it again after leaving. The account is still operated by Company F and does not have any personal attributes exclusive to employees; Zhang's personal account is exclusively for his own use, which is more in line with the usual understanding of "anchor influencer account". An important point is that although Zhang later inquired about the calculation method of the company's non compete compensation, he immediately returned the compensation paid by F company, indicating that he clearly refused to fulfill his non compete obligations and that the two parties had not reached a new non compete agreement. Therefore, the court ruled that Zhang did not trigger the non compete condition and was not liable for breach of contract. The judge specifically pointed out that the provisions of non compete clauses should be "clear and specific". Some employers sign non compete agreements with online anchors without specifying the anchor's account, the ownership of the live streaming account, the scope of fan statistics, etc. The number of fans, sales revenue, etc. cannot be clearly quantified. This "unclear agreement" situation can cause trouble for both parties. (New Society)