Should I pay for account breach?

20 14 In May, Zhang Lei, an international student from a university in Beijing, was about to graduate and happened to meet a large technology company for campus recruitment. The company took a fancy to Zhang Lei's ability, wanted to recruit his subordinates, and promised to solve the problem of staying in Beijing for him, but the condition was to sign a five-year labor contract, and if he left the company halfway, he would pay the company a penalty of 200,000 yuan. After consideration, Zhang Lei signed this labor contract and formally joined the company after graduation. The company also keeps its promise. Not long after Zhang Lei joined the company, he solved the problem of staying in Beijing and made Zhang Lei a generation of immigrants in Beijing.

Originally, the story was beautiful. The company attaches great importance to Zhang Lei, makes great efforts to cultivate him, and plans to promote him vigorously in the future. However, in 2065438+March 2006, Zhang Lei happened to meet an executive of a foreign company in the same industry and had a good chat. The executive praised Zhang Lei and offered him an olive branch on quite generous terms. Despite Zhang Lei's inner struggle, in the end, Tian Ping favored foreign companies, accepted the olive branch and resigned from the technology company. However, the technology company quit and disagreed with its resignation; If you want to resign, you have to pay 200 thousand liquidated damages as agreed before you can leave.

So, here's the problem. Can technology companies claim liquidated damages from Zhang Lei?

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Lawyer's analysis

According to Article 37 of the Labor Contract Law, "The employee may terminate the labor contract by notifying the employer in writing 30 days in advance". This kind of termination of the laborer, that is, the laborer voluntarily resigns, is the right entrusted to him by law and does not need to bear any liability for breach of contract.

The Labor Contract Law only stipulates two situations in which workers should bear the liability for breach of contract. One is about violating the service period stipulated in the training agreement, that is, Article 22 stipulates that if an employer provides special training fees for employees to carry out professional and technical training, it may conclude an agreement with employees to stipulate the service period. If the laborer violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement. The amount of liquidated damages shall not exceed the training expenses provided by the employer. The liquidated damages that the employer requires the laborer to pay shall not exceed the training expenses that should be shared for the unfinished part of the service period. The other is an agreement on violation of non-competition, that is, Article 23 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 the workers who have the obligation of confidentiality, the employer may stipulate the non-competition clause with the workers in the labor contract or confidentiality agreement, and stipulate that after the labor contract is dissolved or terminated, the economic compensation will be paid to the workers on a monthly basis during 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 25 of the Labor Contract Law also stipulates that, except in the circumstances stipulated in Articles 22 and 23, the employer shall not agree with the employee that the employee shall bear the liquidated damages.

In this case, the technology company agreed on the term of the labor contract on the condition of applying to stay in Beijing, and the employee who left early should pay liquidated damages for his account, which is not in line with the situation that liquidated damages should be paid as stipulated in the Labor Contract Law and violates the provisions of Article 25 of the Labor Contract Law, so the liquidated damages agreement is invalid.

Beijing hukou is a scarce resource. How many foreign students want to find a job that can solve the hukou problem and settle down in Beijing? And some enterprises that stay in Beijing hope to rely on this advantage to recruit or introduce outstanding talents and expand their development. However, the reality is that it is not uncommon for workers to leave their jobs after obtaining a hukou. Enterprises can't ask workers to bear the responsibility for breach of contract, and they can't recruit outstanding talents without a hukou, which makes enterprises very helpless.

Is there really no way for enterprises to do this?

Recently, the Beijing No.3 Intermediate People's Court made a precedent on the situation of "liquidated damages for registered permanent residence", holding that although the "liquidated damages for registered permanent residence" was invalid, the employee's resignation did cause some losses to the enterprise in introducing talents. Considering the expenses required by the enterprise to recruit people in the same position (the enterprise may have to pay more economic costs because it does not have the advantage of registered permanent residence), the employee was sentenced to bear certain liability for damages to the enterprise.

Therefore, although an enterprise can't let employees bear the liability for breach of contract, they can be required to bear the liability for damages, and the scope and approximate amount of losses can be clearly defined in the labor contract, and employees can also be required to promise how much liability for damages they should bear if they resign early, so as to safeguard the rights and interests of the enterprise as much as possible.