Just like employment relationships (such as nannies, etc.) are not protected by labor laws in civil law, students are not protected by labor laws during their internships. Legally speaking, it is called the subject's ineligibility.
Reference material: "How to protect rights and interests during internship"
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Under the severe employment situation, colleges and universities and employers Units pay great attention to the internship of college students. Education authorities and universities are also actively expanding internship channels for college students. Many companies, enterprises and other units have become designated internship sites and training bases for some colleges and universities. In order to accumulate experience, increase their job search weight, and improve their employment competitiveness, many students themselves are also actively contacting internship units.
No labor relationship will be established during the internship
It is undeniable that internship is a ladder for college students to enter society. If the internship is good, it will naturally improve practical ability and expand employment opportunities. But once things go against expectations, How should college students seek protection if their rights and interests are infringed upon during their internship?
“The obvious feature of college students’ graduation internships is that there is no labor relationship between the employer and the interns.” Scope, a PhD majoring in labor law at the Law School of Renmin University of China, pointed out, “Because the intern college students still have a teaching relationship with the school, They are still in the state of not graduating, and the personal resume documents of college students are also kept in the school. The unit cannot establish a labor relationship with the intern college students. Moreover, the purpose of this internship itself is to get in touch with the society and practice the theoretical knowledge learned in books. Rather than professional training, its fundamental purpose is teaching.”
The scope pointed out that the commonly referred to as internship is a very broad concept and is not an internship in the strict legal sense. According to the summary and refinement of the labor law and its supporting regulations, internships are basically divided into two situations. First, the interns establish a labor relationship with the unit and receive certain professional training through practice in the unit in accordance with the requirements of laws and regulations. For example, the "Patent Agency Regulations" stipulate that for those who first engage in patent agency work, after one year of internship, they will become patent agents. The institution can issue a "Patent Agent Work Certificate". In this kind of internship, the intern must establish a labor relationship with the unit, with the purpose of enhancing the proficiency in these professional jobs so that he can engage in such a career more independently in the future. Similar situations exist for lawyers, doctors, etc.
The other is the behavior of interns to carry out social practice in the unit out of study needs, such as the graduation internship of college students mentioned above.
The internship period is not protected by labor law
As for the internship in the second situation, the only legal criterion for distinguishing whether it is an internship is the identity of the student. Scope analysis said that under normal circumstances, school students go to work units for internships under the arrangement of the school or use their spare time. Because they are still full-time students at this time, they are not subject to labor law adjustments and protections. Since students are not the subject of labor law adjustments, disputes between students and the internship unit cannot be treated as labor disputes.
Once a student continues to stay in the internship unit after graduation, the relationship between the two will change and a labor relationship will be formed with the employer. After graduation, those who go to other employers as unemployed or unemployed people will be regarded as employed because they already have the status of workers, and concepts such as probationary periods and apprenticeships will arise. Whether during the probationary period or the apprenticeship period, the apprenticeship and probationary periods should be part of the labor contract period. If normal labor is provided during legal working hours, the employer shall pay labor remuneration no less than the minimum wage standard. If you unfortunately fall ill during this period, you will also enjoy the statutory medical treatment period.
Countermeasures and suggestions to protect legitimate rights and interests
Since there is no labor relationship between the intern and the employer and is not protected by labor law, how is the relationship between them defined? Once an infringement case occurs, what is the legal basis for rights protection?
The scope pointed out that at this stage, the country has no special laws and regulations to protect the legitimate rights and interests of college students during their internships. The relevant regulations have too few restrictions on off-campus part-time jobs and internships and lack of operability. During the internship process, if labor and personal injury disputes arise between students and the internship unit, they can only be handled as general civil disputes. If both parties have agreed, they will be handled in accordance with the agreement.
Due to the lack of relevant legal and regulatory protections, college students are at a disadvantage when negotiating with employers during their internships. Especially in the current situation where employment is difficult, students themselves do not have the ability to require employers to sign an internship rights and interests protection agreement. initiative. According to relevant investigations, employers have no initiative to sign security agreements with interns. Some students find internship units through their own connections. The two parties do not even have a basic agreement, which makes some college students unwilling to protect their legitimate rights and interests through legal channels after their rights are infringed. Therefore, relevant experts pointed out that the issue of protecting the rights and interests of college students during their internships should be highly valued, and a system to protect the legitimate rights and interests of college students during their internships should be actively explored and constructed.
Among them, the education administration department, labor and social security department, and relevant legal departments should promulgate relevant laws and regulations as soon as possible based on the actual situation, so that the rights and interests of college students during internships are legally based and the internship College students during the internship period should be included in the adjustment scope of the legal system, or more clear laws should be introduced to serve college students during the internship period, so as to effectively reduce the cost of defending the rights of college students due to damage to their rights during the internship period, and protect the legitimate rights and interests of college students.
In addition, colleges and universities, as managers, should formulate some targeted normative documents for internships and reach an agreement with the internship unit as much as possible. College students should also pay attention when choosing an internship unit. They should choose the internship unit carefully and understand the business legality and industry reputation of the unit in advance. If they do not know much about the internship unit, it is best to sign an internship agreement with it before the internship. Clarify the rights and obligations of both parties; refuse the internship unit’s unreasonable demands to collect deposits or withhold identity documents, etc. At the same time, during the internship process, you should pay more attention to the people and things around you. Once your rights and interests are damaged and a dispute arises, you can find evidence or witnesses that are beneficial to you.
At the same time, the government should increase supervision, include the signing of internship guarantee agreements into the rules for interns to enter the market for internships when necessary, formulate detailed employment market access rules, and continuously standardize the employment market and related functions. Departments should also urge some units to comply with relevant provisions of the labor law through training or signing letters of responsibility, effectively strengthen government regulation and supervision in this area, and create a good market environment for college students' internships.