实习生劳动关系的认定——基于美国的实践

Cognizance of The Labor Relation of The Internships—— Based on The Practice of The United States

结构化的实习是教学活动的重要组成部分。现实中大部分实习是个人自由选择的结果。因此,不能简单的判断实习生"属于"或者"不属于""雇员"范畴。在美国,无薪实习现象被视作为一个社会问题。因此,美国劳工部和美国各级法院都发展出了测试实习是否属于劳动关系的判断依据。这些不同的依据给司法带来了影响,比如同一个案件运用不同的依据结果不一样。这些依据各有优劣,对我国未来界定实习生的劳动关系具有借鉴意义。

structured internship is an important part of teaching activities. Most of the internships are the result of personal free choice. Therefore, it is not easy to judge the internships belong to or not belong to the category of employees. In the United States, unpaid internships are viewed as a social problem. Therefore, the United States Department of labor and the United States courts have developed a labor relation test of internships. These different tests influence the judiciary, for example, different test can conclude differently on one case. However, these tests have their own advantages and disadvantages, and it is a reference for our country to define the labor relations of the intern in the future.