What's the difference between the new labor law and the old one?

Five main differences between old and new methods

1, establish labor relations

The new law clearly stipulates the date of establishing labor relations between enterprises and employees and the specific contents of labor contracts.

According to the provisions of the old law, if a labor relationship is formed without signing a written labor contract, it is a "factual labor relationship." For the "factual labor relationship", the employee can terminate the factual labor relationship at any time (without giving a written notice 30 days in advance); The employer can terminate the factual labor relationship 30 days in advance without reason, so it will not increase the cost of the employer, and the corresponding responsibilities and fines can be almost ignored, so it is welcomed by the employer.

However, the new law has adjusted this and clearly stipulated the time for signing the labor contract: First, considering the actual situation of employing new employees by the employer, it is stipulated that a written labor contract must be concluded within one month from the date of employment. Second, if a written contract has not been concluded for more than 1 month, the employer must pay the employee twice the monthly salary; If a written labor contract is not concluded for more than one year, it shall be deemed that the employer and the employee have concluded an open-ended labor contract. Third, during the one-month buffer period, the labor relations during the period when no written contract is signed are recognized as factual labor relations according to the provisions of the Labor Law, and the provisions of the old law apply.

2. Labor relations management

The new law clearly stipulates the probation period, and the enterprise must explain the reasons in writing to terminate the contract during the probation period.

The old law only stipulated in principle that the probation period should not exceed 6 months, and detailed rules were issued in various places with different periods; The employee does not need to notify the employer in advance to terminate the contract during the probation period. However, the new law has been adjusted:

According to the term of the contract, the probation period is clearly stipulated, and the longest is no more than six months.

Make it clear that the salary during the probation period shall not be less than 80% of the minimum salary of the same position or the salary agreed in the labor contract, otherwise, the compensation shall be paid to the workers according to the standard of more than 50% of the payable amount 100%.

The same employer and the same worker can only agree on a probation period.

When the employer terminates the contract during the probation period, it must prove that the employee does not meet the employment conditions and explain the reasons to the employee.

Employees who terminate the contract during the probation period shall notify the unit three days in advance.

If only a probation labor contract is signed, the probation period will not be established and the term will be deemed as (fixed) labor contract term.

In addition, the new law stipulates that workers must abide by the rules and regulations formulated by enterprises during the performance of labor contracts, but it also requires enterprises to have democratic procedures in formulating rules and regulations.

3. Continuation of labor relations

The conditions for signing an open-ended labor contract have been greatly relaxed, and the illegal consequences are clear.

(1) The restriction of "both parties agree to renew the labor contract" was cancelled, that is, as long as the employee has worked continuously in the same employer for more than 10 years, the employer must accept the employee's unilateral offer to sign an open-ended labor contract.

(2) Three situations in which an open-ended labor contract must be signed are added.

(3) Clarify the legal consequences of not signing an open-ended labor contract in violation of the law (double payment of wages). Most employers are reluctant to sign open-ended labor with workers, because unlike the termination of labor contracts, the labor contracts in the old law naturally expire without paying economic compensation, and the open-ended labor contracts can only be terminated, which is extremely unfavorable to employers. Based on the establishment of harmonious and stable labor relations, the new law guides employers and workers to establish long-term and stable labor relations, expands the scope of open-ended labor contracts, and sets up severe punishment measures accordingly.

In addition, the new law stipulates that economic compensation should be paid if the labor contract is terminated naturally. In this way, from the perspective of the employer's default cost, the difference between concluding a fixed-term and non-fixed-term labor contract will no longer be obvious.

According to the new law, there may be only one difference between concluding a fixed-term labor contract and a non-fixed-term labor contract: if the employer does not want to continue to hire workers, as long as the workers do not meet the conditions of Article 40 and Article 4 1 of the Labor Contract Law, the employer cannot terminate the non-fixed-term labor contract.

4. Dissolution of labor relations

Laborer: The employer must be informed in advance (including the probation period) to unilaterally terminate the labor contract.

From the perspective of protecting workers, the new law continues that workers can terminate their labor contracts at any time, with only 30 days' written notice in advance and no liability for compensation; The new law stipulates that workers should also give three days' notice in advance to terminate the contract during the probation period, giving the employer the necessary preparation time.

Employer: The conditions for unilaterally dissolving the labor contract are more clear.

(1) The new law recognizes that workers establish labor relations with other employers at the same time. If there is no other agreement in the labor contract, the employer can unilaterally terminate the labor contract only if the laborer has seriously affected the completion of the work task of the unit, or if the employer refuses to correct it, and may require the laborer to bear the liability for compensation;

(2) If the provisions of the new law meet certain circumstances, it is equivalent to the employer paying the employee an extra month's salary and notifying the employee in writing 30 days in advance, and the labor contract can be terminated.

5. Compensation for breach of contract arising from labor relations disputes

Laborer: According to the new law, the penalty clause can only be set in three situations: investment training, confidentiality agreement and non-competition, but the scope of implementation is limited.

The old law did not make specific provisions on the liquidated damages of workers, and the local labor contract laws and regulations of various provinces and cities made various provisions on liquidated damages, some of which were advocated and some were restricted. The new law clearly stipulates this:

(1) The liquidated damages can only be agreed under the conditions of training, confidentiality agreement and non-competition.

(2) If the employer provides special training expenses, it may conclude an agreement with the employee to stipulate the service period; If the service period is agreed, it will not affect the normal wage adjustment; The amount of liquidated damages shall not exceed the training expenses provided by the employer, and the unfinished part shall be shared in proportion (according to the existing regulations).

(3) 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 given to the workers 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.

(4) The non-competition period is changed from three years to two years.

Employer: The new law clearly stipulates the compensation standard for employers' violation of labor contracts.

Compared with the old and new laws, the provisions on compensation are stricter and clearer:

(1) If the employer dissolves or terminates the labor contract illegally, it shall pay compensation according to the standard of double economic compensation;

(2) If the employer dissolves or terminates the labor contract in violation of the law, and the employee requests to continue to perform the labor contract, the employer shall continue to perform it;

(three) if the probation period stipulated in the labor contract exceeds the legal provisions, the compensation shall be paid according to the monthly salary standard after the probation period expires;

(4) If the employer fails to pay the deduction, arrears of wages of the workers, the difference between the wages of the workers and the local minimum wage standard, or the economic compensation for the termination of the labor contract within the time limit, it shall order the employer to calculate and pay compensation to the workers according to the standard of more than 50% 1 times of the payable amount.

The scope of economic compensation paid by employers has expanded a lot, while the remuneration of high-paid workers has been controlled.

(1) The economic compensation will be paid only after the employer proposes to terminate the labor contract and reach an agreement with the employee through consultation. If the employee proposes to terminate the contract and the employer agrees, there is no need to pay economic compensation;

(2) The current Labor Law stipulates that compensation can only be paid when the labor contract is dissolved, but it is not necessary to pay compensation when the labor contract expires naturally. The new "Labor Contract Law" stipulates that if the labor contract is dissolved by consensus, the employer violates the law, is incompetent due to illness, changes in circumstances, goes bankrupt, is cancelled, and the contract is terminated naturally, economic compensation shall be paid. In short, unless the laborer is at fault or doesn't want to do it, the employer shall pay the economic compensation for the dissolution or termination of the labor contract.

(3) According to the current regulations, the economic compensation is equivalent to one month's salary for each full year, with a maximum of twelve months. Article 47 of the new law distinguishes between high-paid workers and ordinary workers. The compensation standard for high-paid workers is 3 times of the average monthly salary of local employees, and the longest period for paying economic compensation to them is no more than 12 years. For ordinary workers, the compensation is based on the actual salary, and there is no limit of 12 years.

(4) The new law stipulates that if the employee is less than six months, he shall pay the employee economic compensation of half a month's salary.

Third, take precautions and respond strategically.

It is the common aspiration of enterprises and employees to standardize the employment system and establish harmonious and stable labor relations, but the implementation of the new law will inevitably bring some changes and challenges to the current labor relations management behavior of enterprises, and early planning and response is the best policy.

One of the coping strategies: review and modify relevant enterprise systems and improve the procedures for formulating enterprise systems.

The Human Resources Department should cooperate with the Legal Department or external experts in advance to review and modify various rules and regulations of the enterprise involving employees' interests, especially the management measures such as recruitment, labor contract, attendance, training and resignation, employee reward and punishment system, labor contract, etc. Pay special attention to the probation period, signing an open-ended labor contract, canceling the contract, economic compensation, training expenses, and taking a part-time job in other units, and make it clear that "serious violation of the rules and regulations of the employer" and ".

According to the requirements of the new law, enterprises should publicize the new rules and regulations to all employees in a timely manner, and pay attention to retaining relevant evidence. For example, if paper documents are circulated, employees can be required to sign after learning, and if office automation is circulated electronically, the file browsing name can be added to OA software.

Coping strategy 2: sort out the existing employee labor contract signing records and make the employee labor contract renewal plan.

Before the implementation of the new law, the human resources department should check the signing of existing employees' labor contracts, analyze the situation that employees will need to sign open-ended contracts when renewing their contracts, strengthen the education and training of employees, help employees understand the advantages and disadvantages of various labor contracts, choose to sign fixed-term or open-ended contracts independently, and encourage core employees of enterprises to sign open-ended contracts to enhance their sense of belonging.

Considering that the new law stipulates that there are limited situations in which the non-fixed-term labor contract can be dissolved, compensation must be paid for the dissolution of fixed-term and non-fixed-term labor contracts, and employees can only agree on a probation period, it is suggested that enterprises make full use of the natural termination clause when the fixed-term contract expires. Such as signing a contract for the first time for 3 years (the longest probation period is 6 months) and renewing it for the second time for 6 years, etc., to strengthen the inspection and employment of employees.

The third coping strategy: standardize the recruitment work and strictly assess the probation period.

Enterprises should standardize information release and strengthen the background investigation of new employees in future recruitment work.

According to the provisions of the new law, before releasing recruitment information and hiring employees, enterprises should truthfully inform workers about their work contents, working conditions, workplaces, occupational hazards, safe production conditions, labor remuneration and other information required by workers, and there must be no fraud. In addition, when recruiting new employees, it is necessary to check their academic qualifications, proof of dissolution or termination of labor relations with the original unit, and whether there is a confidentiality and non-competition agreement with the original unit. And review the relevant business information and technical data provided by new employees at work to prevent the company from taking joint and several liability for compensation for those who have not dissolved or terminated their labor contracts with other employers.

Strengthen the management of probation period and formal assessment.

The new law clarifies the concept of probation. The same employer and the same worker can only agree on a probation period, which cannot be extended. Therefore, the company should deal with employees who do not meet the requirements after the probation period expires. However, the new law also stipulates that if the labor contract is terminated during the probation period, the employer shall explain the reasons to the employee in writing, otherwise the employee may request to continue the labor contract or pay compensation. Therefore, it is suggested that enterprises should clarify the employment conditions when hiring new employees in the future, such as performance appraisal indicators and standards, accumulated sick leave during probation period not exceeding 10 days, and serious violation system of enterprises. , should be explained in writing, and require new employees to sign for confirmation, so that they can be evaluated during the probation period and when they become full members.

The fourth strategy: strengthen the management of labor relations and safeguard the interests of enterprises.

Under the framework of the new law, enterprises should reasonably use relevant provisions to protect their interests, such as stipulating in the labor contract that "they shall not engage in a second occupation related to their own business, and shall not engage in or participate in activities that directly or indirectly compete with Party A's business" to prevent workers from establishing labor relations with other employers at the same time; When agreeing on the training service period with employees, we must make clear the investment items and expenses, and properly keep the corresponding invoices to prevent disputes arising from compensation for breach of contract.

In practice, enterprises like to sign confidentiality and non-competition agreements with all employees, but in fact, most employees of enterprises do not have confidentiality qualifications, especially those explicitly restricted by the new law, which are limited to senior managers, senior technicians and other personnel with confidentiality obligations. In principle, there is no time limit for the confidentiality agreement, but the non-competition period shall not exceed two years, and the compensation for non-competition shall be paid monthly after the termination or dissolution of the labor contract. In addition, when signing a non-competition agreement, you can consider clearly writing down the company's business scope and business scope (including listing competitors) to reduce legal disputes.

The new law has many illegal provisions for employers, but it does not mean that there are no restrictions on employees. In addition to the above-mentioned compensation for breach of contract such as training and non-competition, the enterprise can also claim compensation for the employee's breach of contract without notifying the company 30 days in advance (the probation period is 3 days), including recruitment fees, training fees, direct economic losses and other losses agreed by both parties.