What should I do if I have not signed a labor contract in Shanghai and have worked for two months?

First of all, before resigning, you should pay attention to collecting and preserving the illegal acts of the unit that infringe on your legitimate rights and interests, as well as the evidence that can prove the existence of labor relations between you and the unit. For example: notice of dissolution or termination of labor contract, notice of dismissal, notice of laid-off or job transfer, notice of disciplinary action or announcement of punishment, payroll or bank receipt signed by menstrual workers within 12 months before the dispute, hospital diagnosis certificate, hospital sick leave rest proposal, labor contract or employment (filing) agreement, employee manual or labor discipline, rules and regulations, labor manual and employment certificate, deposit slip, attendance record, work permit issued by the unit, etc. Testimony of other workers and evidence of other materials related to resignation. If you encounter labor disputes in the future, you will not be in a passive situation.

Then, referring to the relevant contents in the article I wrote below, I wrote a Notice of Compulsory Dissolution of Labor Relations to the unit (with reference patterns below), stating that the unit violated national labor laws and regulations, failed to pay social insurance premiums for me according to law, and did not sign a written labor contract, which violated my legal rights, so I was forced to resign. According to the relevant provisions of national labor laws and regulations, we hereby notify your company to officially dissolve the labor relationship between the two parties on. And you are required to pay me the unpaid economic compensation, compensation, overtime pay, supplementary social insurance and double wages (rewrite the required items according to your actual situation) in accordance with the relevant provisions of the law. I hope your company will give a reply within three days after receiving this notice.

Don't be embarrassed by your face. Writing reasons such as "personal reasons, other developments and family affairs need to be dealt with" in your resignation notice will put you at a very unfavorable position and make you a loser in the lawsuit that should have won.

Then send it by EMS express mail of China Post, and explain the receipt that needs the signature of the recipient to the post office staff. Then call the postal customer hotline1185 in a few days to ask whether the mail has been sent for signature, and inform that the EMS domestic express mail list signed by the recipient and stamped with the post office seal will be sent to you at the address you provided. Then the "EMS domestic express mail list", mail receipt and another original resignation letter of the same style serve as strong evidence that you have delivered your resignation letter to your company. Be sure to write clearly xxxxx's resignation letter and company name in the email name of EMS domestic express list. Or you'll get into trouble in the future.

Finally, you can talk to the company about leaving the company and go through the handover procedures, so that the initiative is in your hands. If there is a labor dispute in the future, it will not cause losses.

Reasonable ways for employees to resign.

Author: zfq, also known as two generations of love 2010 June160: 34: 55.

I. Introduction:

It is common for employees to resign and jump ship. If it is not handled properly, it will not only fail to safeguard their legitimate rights and interests, but also bring trouble and economic losses. Therefore, this paper attempts to analyze the ways of employees' resignation and the corresponding risks from the perspective of employees, and provide some legal suggestions for employees to legally terminate their labor relations with the company.

Second, the specific content:

There are three ways for employees to resign:

The first is that both parties reach an agreement to terminate the labor contract.

Article 24 of the Labor Law stipulates that the parties to a labor contract may terminate the labor contract through consultation. In practice, the dissolution of labor contracts through negotiation is subdivided into two forms: the unit's expression of will and the individual's expression of will. The original document number is 48 1 of the Ministry of Labor, which stipulates that if the unit expresses its intention, it needs to pay economic compensation to the employees. There is no clear law about whether employees should be held responsible for expressing their opinions, but it is left to companies and individuals to fully negotiate.

When employees are ready to change jobs, we think the first choice should be to terminate the labor contract through negotiation. Because the labor contract relationship between the two parties ends in the form agreed by both parties, labor disputes between the two parties can be avoided to the maximum extent, and the troubles of arbitration or litigation can be avoided.

Therefore, from this point of view, we suggest that, as employees, if they want to resign and jump ship, at the beginning, they should convey their intention to terminate the labor contract to the unit through consultation with the original intention of amicable settlement.

However, in the actual negotiation, starting from the employee side, we need to pay attention to the following matters:

1, be sure to sign a written agreement with the unit;

2, the agreement needs to have the following aspects:

(1) The dissolution of labor relations by both parties is a sign of consensus;

(2) the arrangement of the aftermath, including the transfer of social security relations, the handover of work, the transfer of files or accounts and other issues;

(3) the distribution of other duties;

(4) The bottom clause shall state that both parties have no other labor disputes.

The second is to terminate the labor contract in advance.

The so-called advance notice means to notify the other party unilaterally in advance. Article 31 of the Labor Law stipulates that a laborer shall notify the employing unit in writing 30 days in advance when dissolving the labor contract. This is the legal basis for early termination of the labor contract. In addition, Article 37 of the Labor Contract Law stipulates that the employee may terminate the labor contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probation period.

This right is the right to unilaterally terminate the labor contract, that is to say, the employee only needs to notify the unit in writing 30 days in advance, and the labor contract relationship with the unit will be terminated after 30 days; After 30 days, whether the unit agrees or not, the consequences of termination will occur. At present, in practice, a considerable number of employees and units still believe that it is wrong for the unit to disagree with the resignation of employees, which is invalid.

Another thing that employees need to be reminded is to see if there are confidentiality or occupational restrictions agreed with the unit in the labor contract. Article 23 of the Labor Contract Law stipulates that the employer and the employee may agree in the labor contract to keep the business secrets of the employer and confidential matters related to intellectual property rights. For workers who have the obligation of confidentiality, the employer may stipulate a non-competition clause with the employee in the labor contract or confidentiality agreement, stipulating that after the labor contract is dissolved or terminated, the employer will pay the employee economic compensation every month within the non-competition period. If the laborer violates the non-competition agreement, he shall pay liquidated damages to the employer in accordance with the agreement. Article 24 The personnel who are required to restrict competition are limited to the senior managers, senior technicians and other personnel with confidentiality obligations of the employing unit. The scope, area and time limit of non-competition shall be agreed by the employer and the employee, and the agreement on non-competition shall not violate the provisions of laws and regulations. After the dissolution or termination of the labor contract, if the personnel specified in the preceding paragraph go to other employers that have a competitive relationship with their own units to produce or operate similar products or engage in similar businesses, or start their own businesses to produce or operate similar products or engage in similar businesses, the non-competition period shall not exceed two years. Article 90 stipulates: If a laborer terminates a labor contract in violation of the provisions of this Law, or violates the confidentiality obligations or non-competition restrictions stipulated in the labor contract, thus causing losses to the employer, he shall be liable for compensation.

If there is such an agreement, the unit needs to have three elements to claim compensation from the employee: first, the employee violates the provisions of this law to terminate the labor contract, or violates the confidentiality obligation or non-competition restriction stipulated in the labor contract; The second is the fact that it has caused damage to the unit; The third is that there is a causal relationship between the damage fact and the violation of law or breach of contract. All three are indispensable. In addition, if the unit fails to pay the economic compensation for the termination or dissolution of the labor contract as agreed, the agreed terms restricting the completion of the work are invalid. This is the premise for the restrictive clauses to take effect and employees to abide by the restrictive obligations. Moreover, it can't be agreed in the labor contract that the daily wage already includes the economic compensation that restricts the operation. Only after the labor relationship is over can the economic compensation be paid to the workers on a monthly basis within the operation period. Because the employee's confidentiality obligation continues after the termination of the labor contract, which greatly limits the employment scope of the employee after leaving the job, the unit should give economic compensation.

In addition, from the perspective of evidence preservation, we hope that employees can have a certain sense of self-protection when exercising this right, and should consciously preserve the corresponding evidence. For example, when submitting a written resignation letter to the company, two or three copies should be reserved in advance, and the copy should be given to the company, and the recipient of the company should sign the original and indicate the date of receipt. It is best to write the words "A copy of this resignation letter has been received" to keep this evidence.

In order to understand this right, we make the following system tips:

1. If the employee submits his resignation to the company in writing 30 days in advance, it will take effect without the consent of the company.

2. When exercising this right, we should pay attention to whether there is an agreement with the unit about the confidentiality period. If yes, the date of advance notice is not 30 days, but shall be subject to the contract;

3. When submitting the resignation letter, let the unit sign and keep the corresponding evidence. If the company does not want to sign a copy of the resignation letter (preferably two or three copies), then do not send the copy of the resignation letter directly to the company. In addition, send it by EMS express mail of China Post, and explain to the post office staff that the form can only be retrieved after the recipient's signature. Call the postal customer hotline11/85 in a few days to ask whether the mail has been sent for signature and inform the recipient. Then the "EMS domestic express mail list", mail receipt and another original resignation letter of the same style serve as strong evidence that you have delivered your resignation letter to your company. Be sure to write clearly xxxxx's resignation letter and company name in the email name of EMS domestic express list. Or you'll get into trouble in the future.

4. It should be noted that if both parties have agreed on liquidated damages in the labor contract, they need to bear the liquidated damages to the unit.

The third right is the right to resign immediately.

In fact, sometimes the following happens:

1, the occurrence of high liquidated damages;

It is true that some units have stipulated clear liquidated damages in their labor contracts with employees, and some companies have stipulated very high liquidated damages, even with huge liquidated damages. These huge liquidated damages, as employees, sometimes cannot be repaid by their own lives.

2. The employer is illegal;

As a kind of labor relationship, it is also a very complicated phenomenon. During the existence of labor relations, it is inevitable that some illegal situations will occur. Of course, some phenomena are consciously created by the unit in order to reduce costs. In order to let employees leave their jobs without paying economic compensation, the company insults existing employees or maliciously adjusts their jobs. In reality, it happened that the department manager of the company was assigned to the post of cleaner, or employees were maliciously deducted or owed wages. In reality, the original salary was just 4,000 yuan, and it was adjusted to 1000 yuan. Under these circumstances, out of the basic concept of social justice and the psychology of caring for the weak, we do not recommend employees to take the form of notice termination when resigning, because this will not only get economic compensation, but also bear the responsibility for breach of contract. In order to avoid high debts caused by employees' liability for breach of contract, and to obtain the economic compensation that employees deserve, we recommend the third way of resignation to employees: immediate termination of labor contracts. Because the law gives workers the special right to terminate, they can unilaterally terminate the labor relationship with the employer unconditionally. For example, Article 32 of the Labor Law stipulates that under any of the following circumstances, the employee may notify the employer to terminate the labor contract at any time:

(1) is in the probation period;

(2) The employing unit forces labor by means of violence, threat or illegal restriction of personal freedom;

(three) the employer fails to pay labor remuneration or provide working conditions in accordance with the labor contract.

In addition, Article 38 of the Labor Contract Law stipulates that a worker may terminate the labor contract in any of the following circumstances:

(1) Failing to provide labor protection or working conditions as agreed in the labor contract;

(2) Failing to pay labor remuneration in full and on time;

(3) Failing to pay social insurance premiums for laborers according to law;

(4) The rules and regulations of the employing unit violate the provisions of laws and regulations and damage the rights and interests of workers;

(5) The labor contract is invalid due to the circumstances specified in the first paragraph of Article 26 of this Law;

(6) Other circumstances under which the laborer can terminate the labor contract as stipulated by laws and administrative regulations.

If the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or if the employer illegally directs or forces the risky operation to endanger the personal safety of the laborer, the laborer may immediately terminate the labor contract without notifying the employer in advance.

Article 46 Under any of the following circumstances, the employing unit shall pay economic compensation to the workers:

(1) The laborer terminates the labor contract in accordance with the provisions of Article 38 of this Law;

(2) The employing unit proposes to terminate the labor contract with the laborer in accordance with the provisions of Article 36 of this Law, and the labor contract is terminated through consultation with the laborer;

(3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law;

(4) The employer terminates the labor contract in accordance with the provisions of the first paragraph of Article 41 of this Law;

(5) Terminating a fixed-term labor contract in accordance with the provisions of the first paragraph of Article 44 of this Law, except that the employer maintains or improves the conditions stipulated in the labor contract to renew the labor contract and the employee does not agree to renew it;

(6) The labor contract is terminated in accordance with the provisions of Item 4 and Item 5 of Article 44 of this Law;

(seven) other circumstances stipulated by laws and administrative regulations.

Forty-seventh economic compensation shall be paid according to the standard of one month's salary for each full year of work in the unit. For more than six months but less than one year, it shall be counted as one year; If it is less than six months, economic compensation of half a month's salary shall be paid to the workers.

If the monthly salary of workers is three times higher than the average monthly salary of local workers announced by the people's government of the municipality directly under the central government or the city divided into districts where the employer is located, the standard for paying economic compensation to workers is three times the average monthly salary of workers, and the longest period for paying economic compensation to workers shall not exceed 12 years.

The monthly salary mentioned in this article refers to the average salary of workers in the twelve months before the dissolution or termination of the labor contract.

In addition, Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in Handling Labor Dispute Cases stipulates that if an employer forces a laborer to terminate the labor contract, the employer shall pay the laborer labor remuneration and economic compensation, and may also pay compensation:

(a) forced labor by means of violence, threat or illegal restriction of personal freedom;

(2) Failing to pay labor remuneration or provide working conditions as agreed in the labor contract;

(3) Deducting or delaying the wages of workers without reason;

(4) Refusing to pay overtime wages to laborers;

(five) pay the wages of workers below the local minimum wage standard.

According to these laws and regulations, employees can leave their jobs at any time in case of any of the above-mentioned illegal situations during their employment, without having to bear any liability for breach of contract to the company. Under certain circumstances, employees can also ask the company for economic compensation for the termination of the labor contract. This right is called the employee's right to resign immediately, which means immediately. This right has the following characteristics:

1. Need legal facts. For example, there are laws and regulations that require deduction of wages or unreasonable arrears of wages, or there are cases where social insurance is not paid according to law.

2. Employees don't need to notify the unit 30 days in advance, but they can notify the unit to terminate the labor contract relationship at any time.

3. The resigned employee does not need to bear any liability for breach of contract to the unit.

4. Under certain circumstances, if the employee resigns, the unit still needs to pay the employee economic compensation for the termination of the labor contract.

For the purpose of preserving evidence, we make the following suggestions to employees who intend to resign in this way:

1, this right to resign is subject to many restrictions, mainly based on facts. Only when the unit is really illegal and the employees have legal and valid evidence can they exercise this right of resignation, otherwise, the resignation is invalid;

2. Resignation requires proof of legal reasons. According to the above-mentioned laws and regulations, the collection unit has evidence for the above-mentioned illegal acts. However, if the laborer cannot provide the evidence related to the arbitration request controlled and managed by the employer, the arbitration tribunal may require the employer to provide it within a specified time limit. If the employer fails to provide it within the prescribed time limit, it shall bear the adverse consequences;

3. Make a written resignation letter when you resign. In the process of making resignation letters, we should clearly write down the factual reasons for resignation and understand the legal basis and consequences of resignation;

4. When the resignation letter is handed in to the unit, you must sign it. If the unit is unwilling to sign the copy (preferably two or three copies) of the resignation letter, it shall obtain evidence according to the method mentioned in Article 3 of the second notice of dissolution of the labor contract.

Let's practice and apply all kinds of resignation rights mentioned above through a specific case.

Case:

A company in Beijing has four employees, A, B, C and D. One employee is a cleaner with a monthly salary of 600 yuan, and signed a one-year labor contract with the company. B The employee is a general clerk with a monthly salary of 1200 yuan and a one-year labor contract. Employee c is a fresh graduate. He was registered in Beijing when he joined the company and signed a five-year labor contract with the company. Both parties agree that the penalty is 50,000 yuan, and the monthly salary is 1500 yuan. Employee D is the vice president of the company, who has worked in the company for more than nine years with a monthly salary of 8,000 yuan.

Before the expiration of the contract, employee A submitted his resignation to the company and negotiated with the company. Considering that his type of work is very replaceable, it is easy for the company to find someone else to take his place in the outside market, so it immediately agreed to sign an agreement with him and terminate the labor relationship with A. ..

Before the expiration of the contract, employee B also submitted his resignation to the company and negotiated with the company. Considering that it is difficult to recruit others to replace him, the company did not agree to his immediate resignation, but asked him to submit his resignation letter to the company one month in advance and then leave the company one month later. B also agreed and submitted a written resignation letter to the company one month in advance. A month later, he went through the handover procedures with the company and left the company. In this month's time, the company also found a suitable person to replace the work of employees, and was not hurt.

C employees also proposed to terminate the labor contract relationship in advance. Considering that the company has registered a Beijing account for it, the liquidated damages stipulated in the contract are 50,000 yuan, and the company requires C employees to pay 50,000 yuan to the company as liquidated damages. Employee C thinks that his monthly income is only 1500 yuan. A year later, he didn't have any money at all, and as a fresh graduate, he couldn't afford this 50,000 yuan. However, the employee found that the company did not pay social insurance for him after he joined the company. In this case, what should C employees do if they want to leave and don't pay liquidated damages?

An employee has worked in this position for a long time. Considering that he has lost his enthusiasm for work and his enthusiasm for work is limited, the company has already wanted to dismiss him. However, due to his long working hours and high salary, if he is dismissed, the economic compensation will be a lot of money. In order to save the money, the company took the way of deducting wages and forced the employee to leave. The original salary standard was 8,000 yuan per month, so the company made an excuse and deducted his salary of 4,000 yuan per month. This employee is depressed. He wants to leave, but he doesn't want to leave. He is afraid that he will not get financial compensation for his resignation and there is no future for him to stay. How to do it correctly?

Third, the lawyer's analysis:

A's resignation belongs to the resignation agreed by both parties. There is no labor dispute and no special analysis is needed.

B's resignation belongs to notice resignation, because it does not involve liability for breach of contract, so it is also very simple and does not need special analysis.

C's resignation needs to be designed, because he involves a penalty of 50 thousand yuan. Fifty thousand yuan is really high for a newly employed college student, and it is difficult to repay. First of all, because the annual income of employees is only 18000 yuan, which exceeds the annual income of employees by 50,000 yuan, according to the Beijing labor contract, the excess part is invalid. Secondly, according to Article 35 of the aforementioned Beijing Labor Contract Regulations, if the company fails to pay social security for it, it can resign at any time. According to the facts and laws, employee C can exercise his right of immediate termination. If he exercises it properly, he does not need to bear any liability for breach of contract to the company.

The situation of D is very sad in practice. As an old worker, it is very sad to be treated like this by the company when he has no value to the company. In this case, we suggest that the employee may, in accordance with the provisions of Article 32 of the Labor Law mentioned above, put forward the provisions of resignation at any time in the case of wage deduction or default by the unit, exercise the right of resignation with immediate effect, and claim economic compensation for the dissolution of the labor contract from the unit in accordance with the provisions of Article 15 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases.

Fourth, summary:

There are three ways for employees to resign. Before resigning, every employee should seriously think about which way suits him and choose the right reason for leaving. Remind employees in particular that before resigning, they should pay attention to collecting and preserving the illegal acts of the unit that infringe on your legitimate rights and interests and the evidence that can prove the existence of labor relations between you and the unit. For example: notice of dissolution or termination of labor contract, notice of dismissal, notice of laid-off or job transfer, notice of disciplinary action or announcement of punishment, payroll or bank receipt signed by menstrual workers within 12 months before the dispute, hospital diagnosis certificate, hospital sick leave rest proposal, labor contract or employment (filing) agreement, employee manual or labor discipline, rules and regulations, labor manual and employment certificate, deposit slip, attendance record, work permit issued by the unit, etc. Testimony of other workers and evidence of other materials related to resignation. If you encounter labor disputes in the future, you will not be in a passive situation. Resign as far as possible without disputes with the unit and achieve harmony. If you really can't leave amicably, try to choose the way that is beneficial to you.

Verb (abbreviation of verb) Resignation Letter Reference Format:

Notice of compulsory termination of labor relations

(Name of employer)

_________________:

Because your company exists for me.

(1) Failing to provide labor protection or working conditions as agreed in the labor contract;

(1) Failing to pay labor remuneration in full and on time;

(1) Failing to pay social insurance premiums for laborers according to law;

() The rules and regulations of the employing unit violate the provisions of laws and regulations and damage the rights and interests of workers;

() The labor contract is invalid due to the circumstances specified in the first paragraph of Article 26 of this Law;

() Other circumstances under which the laborer can terminate the labor contract as stipulated by laws and administrative regulations.

() If the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or if the employer illegally directs or forces the risky operation to endanger the personal safety of the laborer, the laborer may immediately terminate the labor contract without notifying the employer in advance. -and other illegal acts (rewriting the illegal acts of the company according to your actual situation) have violated my legal rights, so I was forced to resign. According to the relevant provisions of national labor laws and regulations, we hereby notify your company to officially dissolve the labor relationship between the two parties on. And you are required to pay me the unpaid economic compensation, compensation, overtime pay, supplementary social insurance and double wages (rewrite the required items according to your actual situation) in accordance with the relevant provisions of the law. I hope your company will give a reply within three days after receiving this notice.

Hereby inform!

This notice is made in duplicate, one for the company to keep and one for my record.

Signatory: Notifier:

Date of receipt of notification: MM DD YY.

The notice must list the specific illegal acts of the unit, and write that you were forced to resign or terminate the labor relationship because of the illegal acts of the unit. Don't be embarrassed by your face. Writing reasons such as "personal reasons, other developments and family affairs need to be dealt with" in your resignation notice will put you at a very unfavorable position and make you a loser in the lawsuit that should have won.