For laid-off and retired employees who have been placed on leave without pay, although they maintain an employment relationship with their original employer, they may not be able to continue working temporarily due to various reasons. In this case, they may look for new job opportunities and establish labor relations with new employers.
As long as the employee has legal labor qualifications and has formed a de facto labor behavior with the new employer, it can be deemed that an employment relationship has been established. According to the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases, which came into effect on January 1, 2021, for "laid-off" employees and "retired" employees who have retained their employment relationship with the original employer and engage in paid labor in another unit and accept management, they shall be deemed to have established an employment relationship between the two parties and shall enjoy the relevant labor benefits in accordance with the provisions of the Labor Law.
Therefore, an employment relationship can be established between laid-off or retired employees and the new employer.
It should be noted that the employment relationship between the employees who enjoy the pension insurance benefits in accordance with the law, the personnel who receive retirement pensions, and the personnel who have reached the statutory retirement age and the original employer or the new employer shall be treated as a labor relationship.
Legal basis: Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (I).
Article 32 Paragraph 2
Where an enterprise has a person on leave without pay, a retired employee who has not reached the statutory retirement age, a laid-off employee who is waiting for work, and an employee who is on a long leave of absence for the purpose of an enterprise's operational suspension of production, and initiates a lawsuit due to an employment dispute with the new employer, the people's court shall handle it in accordance with the labor relationship.
Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases.
Article 7 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases.
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