律师办理新业态用工业务操作指引

北京市律师协会劳动与社会保障法律专业委员会2025 年 12 月 引言···························································································································· 01 第一章 通则·················································································································· 02 第一节··业务办理宗旨····································································································· 02第二节··法律综合运用原则······························································································· 03第三节··概念和术语界定·································································································· 03 第一节··争议解决··········································································································· 04第二节··专项咨询··········································································································· 07第三节··用工合同审查与起草···························································································· 08 第三章 新业态用工模式、法律关系识别及责任划分····························································· 08 第一节··法律关系识别····································································································· 08第二节··实证分析··········································································································· 09第三节··责任划分··········································································································· 10 第四章 律师代理劳动者案件要点······················································································ 12 第一节··证据收集··········································································································· 12第二节··权益主张··········································································································· 14第三节··维权途径选择····································································································· 15 第一节··合规性审查········································································································ 16 第二节··争议应对策略制定······························································································· 18 第六章 新业态用工相关法律法规及政策运用······································································· 19 第一节··专业风险提示····································································································· 21第二节··遵守职业道德和执业纪律······················································································ 22 ······《中华人民共和国劳动法》(2018 修正 )········································································ 24······《中华人民共和国劳动合同法》(2012 修正 )·································································· 36······《中华人民共和国社会保险法》(2018 修正 )·································································· 53······人力资源社会保障部、国家发展改革委、交通运输部等关于维护新就业形态劳动者劳动保障权益············的指导意见·············································································································· 67······人力资源社会保障部办公厅关于印发《新就业形态劳动者休息和劳动报酬权益保障指引》《新就······业形态劳动者劳动规则公示指引》《新就业形态劳动者权益维护服务指南》的通知··············· 71······国家市场监管总局、国家网信办、国家发展改革委等关于落实网络餐饮平台责任切实维护外卖送······餐员权益的指导意见·································································································· 77······交通运输部、国家邮政局、国家发展改革委等关于做好快递员群体合法权益保障工作的意见··· 80······国务院办公厅关于促进平台经济规范健康发展的指导意见················································· 84······国家发展改革委、中央网信办、工业和信息化部等关于支持新业态新模式健康发展、激活消费市······场带动扩大就业的意见······························································································· 90······国务院关于做好当前和今后一段时期就业创业工作的意见················································· 96 附件二：新就业形态劳动争议专题指导性案例及典型案例·····················································104 ······郎溪某服务外包有限公司诉徐某申确认劳动关系纠纷案——最高人民法院第 237 号指导性案·····例··························································································································104······圣某欢诉江苏某网络科技有限公司确认劳动关系纠纷案——最高人民法院第 238 号指导性案·····例··························································································································106······王某诉北京某文化传媒有限公司劳动争议案——最高人民法院第 239 号指导性案例··············108 ······刘某与某信息技术公司劳动争议案——人力资源社会保障部、最高人民法院联合发布新就业形态······劳动争议典型案例之一······························································································110······徐某与某科技公司劳动争议案——人力资源社会保障部、最高人民法院联合发布新就业形态劳动······争议典型案例之一····································································································112······何某与某货运代理公司、某劳务公司劳动争议案——人力资源社会保障部、最高人民法院联合发······布新就业形态劳动争议典型案例之一············································································113······孙某与某物流公司劳动争议案——人力资源社会保障部、最高人民法院联合发布新就业形态劳动······争议典型案例之一····································································································115······李某与某文化传播公司劳动争议案——人力资源社会保障部、最高人民法院联合发布新就业形态······劳动争议典型案例之一······························································································116······宋某与某家政公司劳动争议案——人力资源社会保障部、最高人民法院联合发布新就业形态劳动······争议典型案例之一······························································