Ten legal stories

Ten legal stories

1. Use methods such as withholding files to punish employees who break the contract and change jobs.

A year ago, a Shanghai machinery factory signed a labor contract with fresh graduate Xiao Zhou (non-Shanghai nationality). The factory paid the education subsidy fee to Xiao Zhou’s university and transferred Xiao Zhou’s household registration to the factory’s collective household. The two parties agreed in the labor contract that Xiao Zhou must serve the company for five years. If Xiao Zhou terminates the labor contract early, he should be compensated for liquidated damages. Six months later, Xiao Zhou submitted his resignation. The machinery factory approved Xiao Zhou's resignation but required the payment of liquidated damages. Xiao Zhou refused, so the machinery factory did not handle the termination procedures for Xiao Zhou and withheld his personnel files. Three months later, Xiao Zhou filed for labor dispute arbitration and asked the machinery factory to go through the termination procedures and transfer the personnel files. The factory filed a counterclaim, demanding that Xiao Zhou pay liquidated damages. As a result, the arbitration tribunal only supported Xiao Zhou’s request, but did not support the factory’s request. Why is it stupid: It is the legal obligation of the employer to handle the termination procedures. After Xiao Zhou submitted his resignation, the factory approved it and immediately went through the withdrawal procedures for Xiao Zhou in a timely manner. Behaviors that violate workers' employment rights should be corrected. The counterclaim of the machinery factory is different. It reflects a property relationship and is generally restricted by the statute of limitations in law. Because the machinery factory did not initiate labor dispute arbitration within 60 days after Xiao Zhou refused to pay liquidated damages, it gave up the opportunity to assert its rights. In the same way, if it were not affected by the statute of limitations, the machinery factory should also bear civil liability for compensation for the corresponding losses caused by Xiao Zhou's delay in quitting work.

After the employer terminates or dissolves the labor relationship with the employee, it should complete the termination registration and filing procedures within 7 days and transfer the personnel files. If an employee breaks the contract and leaves, be sure to file an arbitration application with the Labor Dispute Arbitration Commission within the validity period.

2. In order to facilitate the dismissal of employees, continue to use "expired contracts".

Xiao Xia’s five-year labor contract at a company in Shanghai is about to expire. The new manager was dissatisfied with his performance but could not find a suitable candidate for a while. The two parties did not terminate the labor relationship, but neither did they renew the contract. Three months later, the manager found a new person and informed Xiaoxia that the contract had expired and the company decided to terminate the labor relationship with immediate effect. Xiaoxia disagrees with the immediate termination of the labor relationship and demands financial compensation. When the two parties failed to reach an agreement, Xiaoxia submitted a labor dispute arbitration, but the arbitral tribunal did not support the request for financial compensation. Xiaoxia was dissatisfied and took the lawsuit to court. Finally, she received financial compensation for the termination of the labor relationship, which was equivalent to more than 32,000 yuan in five months' salary.

What’s so stupid: If a written labor contract is not signed and actually performed after the expiration of the labor contract, it can be deemed that the employee and the employer have maintained a de facto labor relationship. The "Shanghai Labor Contract Regulations" stipulate that if a labor contract should be concluded but is not, the employee can terminate the labor relationship at any time, and the employer must notify the employee 30 days in advance when it proposes to terminate the labor relationship. As for whether workers have the right to demand financial compensation, regulations vary from place to place and department to department. According to the Shanghai Labor Arbitration Institution, as long as the employer notifies the employer one month in advance, it will not assume other obligations and no financial compensation will be required. The Shanghai Higher People's Court believes that if the employer proposes to terminate the relationship and the employee requests the employer to pay financial compensation, the people's court should support it

Due to the different views of arbitration and the court, the employer in this situation Try to negotiate with workers as much as possible, and it is best not to take the lawsuit to court. In order to avoid unnecessary losses, it can also be stated in the labor contract: If the contract expires and the party fails to notify the other party to terminate the labor relationship, it will be deemed to have agreed to extend the contract period for one month.

3. Agree on the service period and liquidated damages in the labor contract, as well as the probation period.

Ling Yun applied to join the company in October 2003, signed a five-year labor contract, and agreed on a six-month probationary period. In December 2003, the company sent Ling Yun to Japan for a three-month technical training, and signed a "Training Agreement" with Ling Yun. The agreement stipulates that Ling Yun must serve the company for five years after the training; if he resigns during the service period, he must compensate the training fee of 50,000 yuan. In February 2004, Ling Yun returned to the company after completing training and quickly resigned. The company asked Lingyun to compensate the company for the training fees in accordance with the "Training Agreement", but was rejected. The company applied to the Labor Dispute Arbitration Tribunal for compensation for training fees, but received no support.

Why is it stupid: During the probation period, the employee can notify the employer to terminate the labor contract at any time. In addition, the service period is the period during which the employee promises to serve the employer because he accepts special treatment from the employer. However, when the two overlap, the provisions of the probation period shall take precedence. Because during the probation period, workers have the right to terminate the contract at will, which is a privilege granted to workers by the labor law, and the employer has no right to impose restrictions in the form of contracts, agreements, etc. As for whether losses should be compensated, according to the regulations of the former General Office of the Ministry of Labor, if the employer funds various technical trainings for employees, and the employee proposes to terminate the labor relationship with the employer, the employer shall not require the employee to pay the compensation if it is within the probation period. Training costs. The probation period is not a mandatory term of the employment contract. The company had agreed on a probationary period, but when Ling Yun went abroad, he could be made a regular employee in advance.

4. Liquidated damages are agreed upon in the labor contract, but the amount is lower than the actual loss.

Two years ago, a company in Shanghai sent employee Xiaomeng to a foreign country for technical training. The two parties agreed: If Xiaomeng leaves the company after less than 5 years of service after the training, she will have to pay a liquidated damages of 20,000 yuan and compensate for the training fee of 50,000 yuan based on the number of years of service that decreases year by year. Now Xiaomeng has decided to change jobs for some reason, and the company requires a liquidated damages of 20,000 yuan and compensation for economic losses of 30,000 yuan (the service period has expired for 2 years), totaling 50,000 yuan. Xiaomeng believed that the compensation was too much, so she filed for labor dispute arbitration. After mediation, Xiaomeng was only compensated for economic losses of 30,000 yuan, and no longer paid liquidated damages. Why is it stupid: Xiaomeng originally enjoyed the special treatment of company-funded training, and should pay liquidated damages after breach of contract. In addition, if it causes economic losses to the other party, it shall be liable for compensation according to the actual losses. However, the Shanghai Municipal Labor and Social Security Bureau stipulates: "If the amount of liquidated damages agreed upon by both parties is higher than the actual losses caused to the employer due to the employee's breach of contract, the employee shall bear the liquidated damages as agreed by both parties; if the amount of liquidated damages agreed upon by the parties is lower than the actual losses, If the employer requests compensation, the employee shall compensate according to the actual losses.” This actually stipulates the principle of choosing one between liquidated damages and compensation. Since the amount of Xiaomeng’s liquidated damages was lower than the actual loss, it was obviously of little significance.

In places such as Shanghai, the amount of liquidated damages in labor contracts can be slightly higher than the actual loss. However, according to the "Beijing Labor Contract Regulations": "The liquidated damages paid by the employee to the employer shall not exceed the total salary of the employee in the 12 months before the termination of the labor contract."

5. Restrictions on non-competition Economic compensation is paid together with wages.

Two years ago, a pharmaceutical company in Shanghai signed a non-compete agreement with Xiao Cai, stipulating that within two years after leaving the company, he would not be self-employed or work for a similar company that competes with the company. Otherwise, you will be liable for breach of contract and financial compensation. Starting last year, the company notified him that he would add 800 yuan per month as "compensation for non-competition" to his salary. Xiao Cai resigned this year and violated the non-compete agreement. The company filed an arbitration with the Labor Dispute Arbitration Committee and asked Xiao Cai to compensate for economic losses, but it did not receive support. Why it’s so stupid: The non-competition clause is a delayed effective clause in the labor contract, which comes into effect after the labor contract is terminated or terminated. Since the employee's right to choose employment within a certain period of time is restricted, if a non-competition clause is agreed upon in the labor contract or confidentiality agreement, financial compensation must be agreed upon. This kind of economic compensation should be given after the labor contract is terminated or terminated. The company adds a sum of money to the employee's monthly salary and should not be regarded as economic compensation for non-competition restrictions.

The economic compensation for non-competition can be given in one lump sum or in installments after the employee leaves the company. If the standards are agreed upon, the standards shall prevail. If a dispute arises from this, the Shanghai arbitration institution generally recognizes 20% to 30% of the employee's average salary income in the 12 months before the labor contract is terminated or terminated (for less than 12 months, the actual number of months will be used).

6. Use "high salary" to replace social insurance premiums

In order to attract talents, an Internet company in Pudong, Shanghai, agreed with its employees to pay an extra 1,000 yuan in monthly wages, and the company will no longer pay as employees Social insurance premiums. However, after employee Xiao Yao resigned, he immediately reported to the Labor Inspection Brigade and asked the company to pay back his social insurance premiums during his working life, which was supported.

What’s so stupid: The Labor Law stipulates: “Employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law.” Social insurance is not only the right of workers, but also the national interest.

Therefore, even if the employee does not want to participate in social insurance, it is not possible. The agreement to replace social insurance with high salary or commercial insurance, and the agreement that the employee personally bears the social insurance obligations that should be borne by the employer, are illegal. The employer's obligation to pay social insurance premiums is still unavoidable.

The high cost and rigid mechanism of the current urban pension insurance have indeed affected the enthusiasm of employers to participate in the insurance. In contrast, the "threshold" for the overall coordination of "town security" in Shanghai is relatively low, reflecting the multi-level social security level. You might as well give it a try.

7. Funding to train employees, but unable to produce payment vouchers.

In July 2003, in order to improve the technical level of maintenance workers, a certain automobile factory hired senior technicians from outside the factory at a high price to conduct technical training in the factory, and also purchased a lot of training equipment for this purpose. The automobile factory stipulates that if workers who receive training resign before the contract period expires, they must pay 5,000 yuan in compensation to the automobile factory for training fees. Recently, Xiao Qiu resigned. He believed that the automobile factory's request for compensation for training fees had no basis, and applied for labor dispute arbitration. Under the mediation of the Labor Dispute Arbitration Committee, the automobile factory no longer insisted on compensation for training fees.

What’s stupid: The employer’s claim for training fees from early termination of the labor contract is limited to the scope of “funded training”. Specifically, it refers to one of the following situations: (1) Entrusting full-time colleges and universities, scientific research institutes, training centers, and vocational schools to train students on their behalf. (2) Academic training. (3) Ability training, such as foreign language level training, professional and technical title (promotion) training, and labor skills training, etc. (4) Going abroad or in other places for training, further study, training, visiting scholars, etc. The expenses include various tuition and miscellaneous fees, round-trip transportation fees, equipment fees and living allowances during the period abroad. The payment voucher that the employer needs to provide mainly refers to the tuition and miscellaneous fees for employee training, etc., and generally does not include the cost of hiring instructors and purchasing equipment. If the car factory cannot provide proof of payment, the employee may refuse compensation.

"Funded training" is a special treatment, and the training that all employees can enjoy is only internal training within the company. However, for high-value internal training, the targets should also be carefully selected, and a comprehensive plan to prevent job-hopping should be formulated based on factors such as promotion, salary increase, and benefits.

8. Set up an "empty city plan" for probationary employees.

Xiao Lu applied for a job at a company in Shanghai, and the company signed a "probation period contract" with him. It was agreed that the probation period would be three months and the monthly salary would be 1,200 yuan; he would sign a formal employment contract after passing the probation and becoming a full-time employee. According to the contract, the monthly salary is 2,000 yuan, and social insurance premiums must be paid; during the probation period, both parties can terminate the labor relationship at any time, and the other party is not allowed to raise objections. Two months later, the company proposed to terminate the labor relationship on the grounds that Xiao Lu did not meet the employment conditions during the probation period. Xiao Lu was dissatisfied and filed for labor dispute arbitration. The arbitration ruled that the "probation period" contract was invalid, but the company could not terminate the labor relationship, and during the "probation period", the company should also pay a salary of 2,000 yuan and pay social insurance premiums. Why is it stupid: signing a labor contract is a prerequisite for agreeing on a probation period. It is not allowed to sign only a "probation period contract" without signing a labor contract; or it is not allowed to stipulate only a probation period but not a contract period in the labor contract. "Shanghai Labor Contract Regulations" stipulates: "If the parties to the labor contract only agree on a probation period, the probation period is not established, and that period is the term of the labor contract." Accordingly, Xiao Lu's "probation period contract" is not established, and the three-month "probation period" is not established. "period" shall be regarded as the contract period. During the contract period but not the probation period, the employer cannot terminate the labor relationship on the grounds that the employee does not meet the employment conditions. In addition, since the two parties agreed on a salary of 2,000 yuan after becoming a regular employee, Xiao Lu could require the employer to pay the salary equivalent to the salary after becoming a regular employee during the "trial period". However, regulations vary slightly from place to place.

If the employer wants to try out the employees for three to six months before deciding whether to sign a long-term labor contract, it is better to sign a three- to six-month labor contract first and then decide based on Business needs, employee performance and other factors determine whether to renew.

9. In order to control overtime expenses, overtime pay should be "clearly priced".

A shopping mall in Shanghai has a "clear price" for overtime pay for employees. For example, it stipulates 6 yuan for 1 hour of overtime at night; 10 yuan for 1 hour on weekends, with a cap of 50 yuan a day; and 20 yuan for 1 hour on statutory holidays, 1 day. Capped at 100 yuan. Department manager Lao Yang felt that he was at a disadvantage because the overtime pay calculated at 70% of the normal monthly salary for his position was higher than the "clearly marked price" in the mall.

When he resigned, he asked the mall to make up the difference in overtime pay owed in accordance with the provisions of the Labor Law. When the two parties failed to reach an agreement, Lao Yang filed for labor dispute arbitration and received support.

What’s so stupid: According to the provisions of the Labor Law: If you work overtime on a regular basis, you will be paid no less than 150% of your salary; if you work overtime on rest days and cannot arrange compensatory time off, you will not be paid. A wage remuneration less than 200% of the salary; for overtime work on statutory holidays, a wage remuneration not less than 300% of the salary shall be paid. Of course, if the unit's economic benefits are relatively good, as long as the "clearly priced" overtime pay is not lower than the statutory overtime pay standard for employees, it is also allowed. However, if the salary gap between employees is relatively large, then employees with higher salaries will still feel that they are at a disadvantage and think that the company's treatment is unfair. Overtime pay does not have to be calculated at 70% of the employee's monthly salary. Overtime pay can also be determined based on the wage standard corresponding to the employee's position (position) stipulated in the labor contract. The latter is more conducive for employers to control overtime pay.

Ten. In order to retain talents for a long time, the service period is deliberately not agreed upon.

Three years ago, a foreign trade company prepared to expand its business in Europe and reimbursed Xiao Liu’s tuition of 50,000 yuan for studying advanced oral translation in the past three years, and signed an open-term labor contract with Xiao Liu. This year, Xiao Liu resigned, and the company demanded compensation of 50,000 yuan in training fees. Xiao Liu was dissatisfied and filed for labor dispute arbitration, but was only compensated 20,000 yuan.

Why is it stupid: According to the regulations of the former General Office of the Ministry of Labor, the employer funds various technical trainings for employees, and if the employee proposes to terminate the labor relationship with the employer, if the probation period expires, during the contract period, Then the employer can require the employee to pay the training fee. The specific payment method is: if the service period is agreed upon, the amount will be divided into equal parts according to the service period, and the payment will be made in descending order based on the service period that the employee has performed; if there is no agreed service period, the payment will be made according to the labor contract, etc. The amount of capital allocated shall be paid in descending order based on the contract period that the employee has performed; if there is no agreed contract period, the amount of capital allocated shall be paid based on the service period of 5 years in descending order based on the service period that the employee has performed.

If a foreign trade company wants to use Xiao Liu for a long time, it is more cost-effective to agree on a ten-year service period instead of signing a non-fixed-term labor contract without agreeing on a service period.