New Regulations Analyze the Legal Relationship of Employing Over-aged Workers
Preface
With the acceleration of the aging population process and the popularization of flexible employment models, rehiring of over-aged individuals and continuous employment have become the norm in the labor market. Security guards, cleaners, logistics operation and maintenance personnel, technical advisors, and other positions have absorbed a large number of workers who have reached the legal retirement age, that is, the over-aged workers referred to in this article. For a long time, there have been disputes in judicial practice regarding the nature of the employment legal relationship of over-aged workers. The past judicial practice has formed a binary opposition judgment model of "labor relationship / labor service relationship". With the implementation of the "Gradual Delay of the Legal Retirement Age Measures" and the completion of the revision of the "Civil Case Classification Rules", the demand for unifying the legal relationship determination standards of over-aged employment and improving the supporting rights protection rules has become increasingly urgent. On May 10, 2026, the Ministry of Human Resources and Social Security and five other departments jointly issued the "Interim Provisions on the Basic Rights and Interests Protection of Over-aged Workers" (hereinafter referred to as the "New Regulations"), and they came into effect on July 1 of the same year. The New Regulations broke the traditional binary determination constraint and built a new institutional framework for the protection of the rights and interests of over-aged workers.
01 Academic viewpoints before the implementation of the New Regulations
Before the implementation of the New Regulations, China had not yet issued a special legislative document to regulate over-aged employment. The theoretical circle's discussion on the nature of the employment relationship of over-aged workers was centered around labor laws and regulations, relevant judicial interpretations, and local judicial guidance. It formed five representative viewpoints:
1. Labor service relationship theory. This view holds that when workers reach the legal retirement age, they lose their labor subject qualification under labor law, and retirement has both rights and obligations dual attributes. Over-aged personnel no longer have the basic foundation to establish a legal labor relationship, and their employment relationship with the employer is uniformly recognized as a labor service relationship, applying the contract and tort rules of the Civil Code, excluding the application of labor legal norms. This theory takes Article 21 of the "Implementation Regulations of the Labor Contract Law" as the normative basis, interpreting this clause as a legal fiction of the elimination of the labor subject qualification.
2. Complete labor relationship theory. This view holds that the legal retirement age is only a system node for applying for pension benefits and not the termination basis for the natural person's labor rights capacity and behavior capacity. Our current laws only limit the minimum employment age and do not set an upper limit for employment age. As long as over-aged workers provide labor to the employer and accept the management of the employer's rules and regulations, forming personal dependence, economic subordination, and business subordination, it constitutes a standard labor relationship and applies all labor legal norms, denying the single interpretation logic of "loss of labor subject qualification upon reaching retirement age".
3. Social insurance standard theory (compromise theory). This theory abandons the single standard of age determination and takes whether the worker enjoys pension insurance benefits and receives retirement pensions as the core criterion for dividing labor relationship and labor service relationship. The normative basis includes Article 44(2) of the "Labor Contract Law", Article 7 of the "Several Provisions of the Supreme People's Court on the Application of Law in Handling Labor Dispute Cases" (now repealed), and Article 32(1) of the "Several Provisions of the Supreme People's Court on the Application of Law in Handling Labor Dispute Cases" (now repealed).
4. Special labor relationship theory. This theory breaks the traditional binary division of labor relationship and labor service relationship analysis framework, proposes a three-part system of employment relationship, and advocates that over-aged employment does not belong to the standard labor relationship of eligible workers, nor is it the ordinary civil labor cooperation between equal subjects. It is an independent special labor relationship form. This theory originated from the local pilot rule of the Shanghai Human Resources and Social Security Bureau's "Notice on Certain Issues Concerning Special Labor Relationships" (Shang Lu Hua Guan Fa Fa [2003] No. 24).
The fifth is the illegal employment relationship theory. This view holds that although the over-aged individuals objectively provide labor to the employer, since the employment behavior violates the mandatory norms of the legal retirement system, both parties do not meet the essential requirements for a legal labor relationship, and it constitutes an "illegal labor relationship where there is actual employment but the legal relationship is illegal". This view has obvious institutional flaws and is prone to allowing or even encouraging enterprises to engage in illegal employment practices, weakening the protection of the rights and interests of the elderly workforce, and being contrary to the legislative orientation of actively promoting aging and providing preferential protection for vulnerable groups. Currently, it has been abandoned by the mainstream academic views and is no longer used as a theoretical reference for judicial adjudication and institutional construction.
02 Judicial practice before the implementation of the new regulations
Due to the insufficient legislative norms, courts and labor arbitration institutions at all levels lack a unified judicial benchmark when handling disputes involving the employment of over-aged individuals. They can only make free judgments based on local guidance documents and individual case facts. This directly leads to fragmented judicial standards and prominent cases with different judgments in the same case, resulting in difficulties in determining work-related injuries, high costs for protecting labor remuneration rights, and uneven protection of rights and interests. The following are typical judicial rules and representative cases from some regions:
Beijing
When a worker reaches the legal retirement age, whether they remain with their original employer or join a new one, the employment relationship between the two parties shall be uniformly handled as a labor relationship [3].
Reference case: (2026) Jing 03 Civil Appeal No. 103
Shanghai
Hierarchical classification of employment situations: For over-aged individuals who have already received basic old-age insurance benefits and are re-employed, the labor relationship shall be handled; for those who have reached the retirement age but whose employers have not terminated the labor relationship and have not processed retirement procedures, the labor relationship shall be recognized; for those who have reached the retirement age, whose labor relationship has been terminated, but who have not yet received pensions due to insufficient social security contribution years, and who subsequently join other units, the labor relationship shall be handled as a labor relationship [4].
Reference cases: (2025) Huaian No. 13226, (2022) Shanghai No. 1396.
Guangdong
After a worker reaches the legal retirement age, the labor contract automatically terminates. From then on, the original employer may continue to retain the employee or another employer may recruit them anew. Whether they receive basic old-age insurance benefits or receive retirement pensions, the employment relationship formed between the two parties is handled as a labor relationship [5].
Reference cases: (2023) Guangdong Civil Appeal No. 923, (2026) Guangdong First Instance Civil Appeal No. 9815
Jiangsu
Employment disputes between employers and those who have already received basic old-age insurance benefits or retirement pensions according to the law are handled as labor relations; for over-aged workers who have not legally enjoyed old-age insurance benefits or received retirement pensions, and whose employment model conforms to the characteristics of labor relations, a special labor relationship is formed between the worker and the employer [6].
Reference cases: (2025) Su Min Shen 5426, (2020) Su Min Shen 6567
Zhejiang
When an over-aged worker is hired, if the reason for their failure to enjoy pension insurance benefits or receive pensions cannot be attributed to the employer, then a labor relationship exists between the two parties [7]. When an employer recruits over-aged workers, they should generally classify it as a labor relationship.
Reference cases: (2024) Zhejiang 07 Civil Appeal No. 796, (2016) Zhejiang Civil Appeal No. 259
Tianjin
For those over the retirement age who have already received basic old-age insurance benefits or are receiving pensions, their employment relationship is a labor relationship; if a worker reaches the legal retirement age due to the fault of the original employer but is unable to enjoy basic old-age insurance benefits or receive pensions, and the two parties continue to have an employment relationship, it shall be handled as a labor relationship [8].
Reference cases: (2024) Jinan Civil Appeal No. 1169, (2020) Jinan Civil Appeal No. 703
Shandong
The judicial standards are based on whether the individual enjoys pension benefits and receives pensions, but there are differences in practical judgments: some judges hold that once the legal retirement age is reached, the individual loses the status of a labor relationship subject, and the employment relationship established with the employer is considered a labor relationship; while another group of judges argue that even if the over-aged worker does not enjoy pension benefits or receive pensions, if the actual employment meets the characteristics of a labor relationship, a labor relationship is established.
Reference cases: (2022) Lu Min Shen 4775, (2020) Lu 17 Civil Appeal 2673, (2021) Lu Min Shen 802, (2021) Lu Civil Appeal 303
03 The Employment Relationship of Over-Age Workers from the Perspective of New Regulations
The new regulations abandon the binary judicial standards of "age classification" and "social security benefits classification", returning to the substantive characteristics of the employment relationship, and no longer mechanically make a binary determination of "labor relationship/contractual relationship" for the employment relationship of over-aged workers. As long as the over-aged worker is subject to the labor management of the employer and engages in paid labor arranged by the employer, it will be included in the unified regulation scope of the new regulations. The new regulations have established a rights and obligations system based on the principle of autonomy of will and mandatory protection of core legal rights: employers and over-aged workers can freely negotiate and agree on general rights and obligations, but the four basic survival rights such as labor remuneration, rest and vacation, labor safety and health protection, and work injury insurance fall within the scope of mandatory legal protection and cannot be excluded through agreement. At the same time, the new regulations set up a dual-track dispute resolution path. If there are disputes over the four core legal rights, the "Labor Dispute Mediation and Arbitration Law" shall be applied, and the labor arbitration pre-procedure shall be followed; for other general disputes, the parties can directly file a civil lawsuit with the people's court.
It can be seen that the employment relationship of over-aged workers under the new regulations is different from the standard labor relationship (not fully applicable to economic compensation, double wages for non-signing labor contracts, etc. as exclusive labor rights), and is not equivalent to the completely equal civil labor relationship (there is a legal mandatory protection bottom line). This article refers to it as a special employment relationship. However, in the framework of the new regulations, the determination of legal relationship is no longer the core controversy focus; instead, the focus of attention is on whether the rights of the workers are realized in the employment relationship.
The number of effective judgments after the implementation of the new regulations is still relatively small. The case I handled involving the employment dispute of over-aged workers has clearly shown this transformation: although this case occurred before the implementation of the new regulations, the Shanghai Songjiang District People's Court of Shanghai made a first-instance judgment after the implementation of the new regulations. Previously, in the reasoning part of each court's judgment, the employment relationship was inevitably defined in a binary manner, but the judgment document of this case was obviously different. The court did not directly define whether the legal relationship between the two parties belongs to a labor relationship or a contractual relationship, but based on the fact that the over-aged worker had exceeded the legal retirement age at the time of entry and there was no evidence to prove that there was an agreement to establish a labor relationship between the two parties, it dismissed the worker's claim for confirmation of the labor relationship, and at the same time, after the court hearing, it explained to the over-aged worker the mandatory protection of their legal rights by the new regulations. Thus, it can be seen that the pattern of binary determination of labor relationship and contractual relationship in previous judicial practice has been broken by the new regulations.
04 The Focus of Attention of Over-Age Workers and Employers under the New Regulations
After the implementation of the new regulations, the first thing that both employers and workers should clearly understand is the legal rights boundary of over-aged workers. This boundary directly determines the compliance obligations of the enterprise and the scope of rights protection for the workers. The specific regulatory points are as follows:
First, the rigid legal rights must be fully implemented. The employer shall not pay labor remuneration lower than the local minimum wage standard; over-aged workers enjoy complete rest and vacation rights, and the duration of overtime and the calculation standard of overtime pay shall be in accordance with labor laws and regulations; enterprises need to reasonably match positions based on the physical condition of the over-aged personnel and control the labor intensity, fulfill the obligations of safety production and occupational health training; It is mandatory to separately enroll on-the-job over-aged workers in the work-related injury insurance program. Commercial personal accident insurance cannot replace work-related injury insurance.
Second, written employment agreements should prioritize the stipulation of flexible matters. For rights and obligations beyond the legally mandatory ones, both parties should clearly stipulate them through written employment agreements. For instance, rules for position adjustments, standards for severance compensation, changes in job content, and liability for breach of contract. They should fix the evidence in advance to reduce the difficulty of proving the subsequent disputes.
Third, grasp the time limit for rights protection based on the type of disputes. The new regulations' dual-track remedy mechanism corresponds to different time limit rules: disputes regarding labor remuneration, work-related injuries, rest and vacation, and labor safety apply the one-year labor arbitration time limit (arbitration time limit of one year during the employment period does not apply to the delay of labor remuneration); other civil disputes apply the three-year ordinary time limit for civil litigation. When workers suffer rights infringements, they should promptly claim their rights based on the type of disputes to avoid losing the right to victory when the time limit expires.
In the long run, labor arbitration institutions and courts in various regions will gradually abandon the binary classification thinking and will no longer debate whether the employment relationship belongs to a labor relationship or a labor service relationship when handling cases. Instead, they will focus on reviewing whether the employer has implemented the four legally core rights and whether it has fulfilled management and safety guarantee obligations. For enterprises, they should promptly revise the employment management system for over-aged workers, sign standardized written employment agreements, and fully enroll in work-related injury insurance to avoid extensive rehire practices. For over-aged workers, they should actively learn the legally granted rights and retain employment evidence such as attendance records, salary payments, and job assignments, and protect their rights according to the type of disputes and in accordance with the law.
Conclusion
In the context of an aging population, re-employment of over-aged workers is an important way to alleviate the labor shortage, ensure the income sources of the elderly population, and implement the national strategy of active aging. Before the new regulations were introduced, there were diverse theories in the academic community and inconsistent judicial standards in different regions. The binary and opposing classification model led to a large number of over-aged workers in the labor force falling into a legal protection vacuum, with blurred rights and responsibilities boundaries for employers and employees, and frequent labor disputes with high difficulty in resolution. The "Interim Provisions on the Basic Rights and Interests Protection of Over-Aged Workers" jointly issued by five departments including the Ministry of Human Resources and Social Security broke the traditional analysis framework of "labor relationship, labor service relationship" being either this or that, and created a hierarchical protection rule of legal rights and general rights. From the institutional level, it unified the judicial standards for resolving disputes over over-aged employment nationwide, filling the legislative gap in the protection of the rights and interests of over-aged workers that has existed for a long time. Both employers and employees should focus on the contents of the new regulations, clearly define the boundaries of their rights and obligations, and jointly build an orderly, stable and fair employment environment for the elderly.
Footnotes:
[1] "Interpretative Rules of the Supreme People's Court on Several Issues Concerning the Application of Law in Labor Dispute Cases (III)" (Article 7): "If an employer and the over-aged workers it has hired who are already enjoying social security benefits or receiving retirement pensions have labor disputes and file a lawsuit in court, the court shall handle it as a labor service relationship. This judicial interpretation has been abolished.
[2] "Interpretative Rules of the Supreme People's Court on Several Issues Concerning the Application of Law in Labor Dispute Cases (I)" (Article 32, Paragraph 1): "If an employer and the over-aged workers it has hired who are already enjoying social security benefits or receiving retirement pensions have labor disputes and file a lawsuit in court, the court shall handle it as a labor service relationship." This clause has been abolished.
[3] "Minutes of the Conference on the Legal Application of Issues in Labor Dispute Cases (II)" (Document No. 220 of the Beijing Higher People's Court). This document has been abolished.
[4] "Guidelines for the Handling of Labor Dispute Cases by the Higher People's Court of Shanghai (I)"
[5] "Conferencing Minutes on Several Issues Concerning the Hearing of Labor and Personnel Dispute Cases" (Document No. 284 of the Guangdong Higher People's Court and the Guangdong Labor and Personnel Dispute Arbitration Commission). This document has been abolished.
[6] "Notice of the Labor and Personnel Dispute Arbitration Committee of Jiangsu Province on Printing and Distributing the Minutes of the Seminar on Difficult Issues in Labor and Personnel Dispute Cases of Jiangsu Province" (Document No. 1 of the Jiangsu Labor and Personnel Arbitration Committee, 2017)
[7] "Notice of the Civil Division of the Supreme People's Court of Zhejiang Province and the Zhejiang Labor and Personnel Dispute Arbitration Institute on Printing and Distributing the Answers to Several Issues Concerning the Hearing of Labor Dispute Cases (II)" (Document No. 7 of the Zhejiang Higher People's Court, 2014)
[8] "Notice of the Higher People's Court of Tianjin on Printing and Distributing the Guidelines for the Handling of Labor Dispute Cases by Tianjin Courts" (Document No. 246 of the Tianjin Higher People's Court)
