Research On The Legal Issues Of Continuing Employment For Over-age Workers

There is a long dispute over how to identify the labor relationship between the overage laborer and the employer. In the judicial practice, different courts can give different decisions for the same kind cases. There exist different theories about the issue, such as labor relation theory, service relation theory, employment relation and special labor relation. The identification of the labor relationship determines whether the labor law is applicable, and whether the protection of the labor could be implemented.The Supreme People's court issued a judicial interpretation in 2010, and set the criteria on whether or not the labor had enjoyed the endowment insurance benefit or get the retire pension. If the answer is yes, the relationship should be identified as labor relation, and otherwise, a service relation should be identified and taken as the judicial basis for settling the labor dispute.In author's opinion, the judicial practice identifies the legal attributes of: service relations or labor relations for over-aged labor employment according to whether or not he or she has enjoyed the basic old-age insurance benefits. This is the reason for the confusion. And under such situation, different decisions will occur continuously for the same kind of case. How to judge the legal attributes for the over-aged labor employment is the basic issue that judicial practice has to deal with. If this is not handled properly, over-aged laborers'legitimate rights would not be protected effectively, and would inevitably lead to a miscarriage of justice. The identification of legal attribute for over-aged labor employment needs to adhere to two principles, one is the principle of quality, the second is the principle of differential protection.For the employee who continues to work after retirement age and doesn't: enjoy the endowment insurance benefit nor the retire pension, the question is whether or not he could claim for compensation on the grounds that the employer doesn't pay for the endowment insurance. The payment of endowment insurance is related to the state policies, so the protection scope should at least be consistent with the policies at the time. So that there should be some difference in labor rights protection between this kind of labor and the working age labor. The compensation claim will not be supported if the employer has no way to pay for the endowment insurance.By adopting factor analysis of the labor relation, this paper discusses the judicial practice of identifying the employment relationship based on whether or not the overage labor has enjoyed the endowment insurance benefit or retiree pension. Also, based on detailed case study, this research analyses how to implement legal protection for this kind of labor, in accordance with labor law and labor contract law's principles. By investigating into the relevant legal issues, the paper tries to get more attention upon this special group of overage labors, aiming at providing wider and comprehensive protection for their legal rights.