Do rehired employees need to sign an employment contract with the employer?

The rehired personnel do not need to sign a labor contract with the employer, but need to sign an employment agreement (in the nature of a labor contract), and the rehired personnel do not have the main conditions for signing a labor contract.

Labor Contract Law

Article 44 The labor contract shall be terminated under any of the following circumstances:

2) The worker begins to enjoy the basic pension insurance benefits in accordance with the law;

According to the Circular of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System and the reply of the General Office of the Ministry of Labor to the Request for Instructions on Several Issues Concerning the Implementation of the Labor Contract System, when a retiree is re-employed, the employer shall sign a written employment agreement with the employee instead of a labor contract. If the employment agreement stipulates the early termination of the written agreement, it shall be handled in accordance with the agreement between the two parties, and if there is no agreement, it shall be settled through negotiation, instead of terminating the contract in accordance with the relevant provisions of the Labor Law, and the corresponding compensation shall be paid. Therefore, the employment relationship between retirees and employers is no longer regulated by the Labor Law.

Article 2 of the Notice on Strictly Implementing the Interim Measures for Workers' Retirement and Retirement (Guo Fa No. 1981 No. 164) stipulates: "After retirement, workers generally do not stay in their original units to continue to work, and if other units really need to hire retired workers with technical and professional expertise for technical and operational guidance, they must be signed by the unit that originally paid the retirement expenses, the employing unit and the retired workers, and report to the local labor department for approval before they can be hired." "The contract signed by the three parties is significantly different from the employment contract.

Therefore, disputes between retirees and their employers are mainly dealt with on the basis of the employment contract signed between them, rather than on the Labor Law.

The employment contract does not have the nature of an employment contract, but has the nature of a labor contract, which is regulated by the General Principles of the Civil Law.

Legal analysis: rehired personnel do not need to sign labor contracts and labor contracts. The employer shall sign a labor contract with the following persons for the labor relationship:

Retirees who have not reached the statutory retirement age; Persons who have enjoyed pension insurance benefits or received retirement pensions in accordance with the law; Employees who are on leave without pay in the enterprise; Personnel on long vacations due to the suspension of business operations; laid-off personnel waiting for work; Other.

Legal basis: Labor Contract Law of the People's Republic of China

Article 3 The conclusion of a labor contract shall follow the principles of legality, fairness, equality, voluntariness, consensus, and good faith. The labor contract concluded in accordance with the law is binding, and the employer and the employee shall perform the obligations stipulated in the labor contract.

Article 10 A written labor contract shall be concluded for the establishment of labor relations. If a labor contract has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If an employer and an employee conclude a labor contract before employing the employee, the employment relationship shall be established from the date of employment.

Article 36 The employer and the worker may terminate the labor contract if they reach a consensus through consultation.

Retired personnel who are hired by the employer or rehired back to their original units do not have a labor relationship with the employer or their original employer, but a labor relationship, and do not need to sign a labor contract again. Therefore, the employer is exempt from granting these special workers various statutory benefits corresponding to the labor relationship. Article 32 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (I) Where an employer initiates a lawsuit in the event of an employment dispute with a person hired by an employer who has already enjoyed pension insurance benefits or received a pension in accordance with the law, the people's court shall handle it in accordance with the labor relationship.

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 waiting for work, and a person who has been trained and suspended for a long period of time, and files a lawsuit due to a dispute with the new employer over the use of Qiqing, the people's court shall handle it in accordance with the labor relationship.

Rehired personnel do not need to sign a labor contract, and the relationship between the retired rehired personnel and the employer is a labor service relationship, and a labor contract shall be signed. When the statutory retirement age is reached, the labor contract will be terminated naturally, and the retiree will lose his status as an employee.

Legal basis: Article 32 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (1) Where an employer initiates a lawsuit in the event of an employment dispute with a person hired by an employer who has already enjoyed pension insurance benefits or received a retirement pension in accordance with the law, the people's court shall handle it in accordance with the labor relationship. Where an enterprise is on leave without pay, a retired employee who has not reached the statutory retirement age, a laid-off employee waiting for work, and a person who is on a long vacation due to an employment dispute arising from an employment dispute with a new employer, the people's court shall handle the matter in accordance with the relationship between labor and labor.

There is no need to sign a contract.

Article 2 of the Labor Contract Law stipulates that this Law shall apply to enterprises within the territory of the People's Republic of China, individual economic organizations next to liquids, private non-enterprise units and other organizations (hereinafter referred to as "employers") that establish labor relations with employees and conclude, perform, modify, dissolve or terminate labor contracts.

According to the relevant provisions of China's labor law, when signing or performing a labor contract, the worker must have the legal qualifications, that is, the worker must have the ability to work rights and labor behavior, and be a worker who meets the legal requirements. At this stage, the capacity for labor rights and conduct stipulated in the labor laws and regulations for workers begins at the age of 16 and ends at the age of 60 (55 years for women). Once an employee loses the ability to work rights, he or she loses the legal qualification to sign or perform a labor contract with the employer, and can no longer sign a labor contract with the employer.

Labor contracts signed by natural persons who do not have labor qualifications under the labor laws shall have the effect of labor law without potatoes.

Retirees who are hired by the employer or rehired back to their original employer do not have an employment relationship with the employer or their original employer, but a labor relationship, and do not need to sign a labor contract again. Therefore, the employer is exempt from granting these special workers various statutory benefits corresponding to the labor relationship. If the employer voluntarily gives these "workers" relevant treatment and expressly agrees in the form of a written contract, the employer may have to fulfill its commitments or contractual obligations.