How to apply for double insurance, now more and more professionals know how to protect themselves with legal weapons, but as new members of the workplace, we have many problems to consider, and we have too many problems and solutions that we don't understand. Let's share how to apply for double insurance.
How to apply for double insurance 1 1? Under what circumstances can I apply for double compensation?
According to the "Labor Contract Law", if the employee has one of the following circumstances, if the employer illegally terminates the labor contract, it shall report to the employee double indemnity:
1. Employees exposed to occupational hazards did not undergo occupational health examination before leaving their posts, or suspected patients with occupational diseases were during diagnosis or medical observation;
2. Party B suffers from occupational diseases or work-related injuries in this unit and is confirmed to have lost or partially lost the ability to work;
3. Illness or non-work-related injury within the prescribed medical treatment period;
4. Female employees during pregnancy, childbirth and lactation;
5. Work continuously in this unit for 15 years, less than 5 years before the statutory retirement age;
6. Other circumstances stipulated by laws and administrative regulations.
Legal basis:
Article 87 of the Labor Contract Law
If the employing unit dissolves or terminates the labor contract in violation of the provisions of this Law, it shall pay compensation to the laborer at twice the economic compensation standard stipulated in Article 47 of this Law.
Second, what is the calculation standard of labor remuneration?
Article 47 of the Labor Contract Law stipulates that the compensation is twice as much as the compensation. The amount of economic compensation is related to the employee's working years in the employer. The specific calculation method is: you need to pay one month's economic compensation for each full year of work; And more than six months but less than one year, according to one year; If the working experience is less than six months, the employee will be paid economic compensation for half a month.
Legal basis:
Article 47 of People's Republic of China (PRC) Labor Contract Law
The economic compensation shall be paid according to the standard of one month's salary for each full year of the employee's working years 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 with 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.
If the employer cannot terminate the labor contract signed with the employee at will, it is illegal to terminate the labor contract, and the parties may claim compensation from the employer according to law. In practice, it is up to the employer to prove whether it is legal to terminate the labor contract. The legitimacy of the dissolution of labor contract should be proved from three aspects: factual basis, legal basis and dissolution procedure. If the employer can't prove that these three aspects are legal, then it is illegal to terminate the labor contract.
How to apply for double indemnity? How to apply for double compensation without signing a labor contract?
You can apply for double indemnity directly to the employer without signing a labor contract. Many people simply understand "double salary" as "double salary". In fact, the meaning of "double salary" means that employees' actual monthly salary is doubled, and the paid salary should be deducted. Generally speaking, what we ask for is another time, calculated according to the actual salary.
Only those who are adjusted by the Labor Contract Law can "double their wages". This scope of application is clearly stipulated in Article 2 "Scope of Application" of the Labor Contract Law, that is, "China people, domestic enterprises, individual economic organizations, private non-enterprise units and other organizations (hereinafter referred to as employers) shall apply this law when they establish labor relations with workers and conclude, perform, change, dissolve or terminate labor contracts.
State organs, institutions, social organizations and laborers who have established labor relations with them shall conclude, perform, modify, dissolve or terminate labor contracts in accordance with this Law. "
With the main legal characteristics of a labor contract, it can be concluded that both parties have signed a labor contract. Here, the company has room for operation. In some cases we have contacted, the company often talks about some memos or certificates that simply stipulate wages, as well as some invitations to join the company.
The confirmation letter is treated as a labor contract after certain treatment to avoid the punishment of not signing a labor contract. In addition, there are some so-called "blank contracts", "black and white contracts" and "unilateral contracts". This requires workers to have certain legal theory and trial experience, make detailed and concrete analysis, and use the principle of proof and legal knowledge to expose the defense reasons of the unit.
In practice, some confidentiality agreements, business prohibition agreements, tripartite agreements for graduates, etc. It is generally not recognized as a written labor contract.
Second, how long does the "double salary" last?
If the employer fails to conclude a written labor contract with the employee for more than one month and less than one year from the date of employment, it shall pay the employee twice the monthly salary.
Where an employing unit violates the provisions of this Law and fails to conclude an open-ended labor contract with the laborer, it shall pay the laborer twice the salary every month from the date when the open-ended labor contract should be concluded.
We often hear whether there is a time limit for "double salary" and whether 1 year ago "double salary" can still be applied for. We say that according to the law, the limitation of action starts from the dissolution of the labor contract relationship, and the time is 1 year.
In our real life, if we don't sign a written labor contract, we will have certain responsibilities. For example, according to China's labor contract law, employers need to pay double wages. But if it is caused by workers, there is no need for such compensation measures.
How to apply for double indemnity 3 to dismiss employees without paying twice the salary?
Article 82 of the Labor Contract Law stipulates that if the employer fails to conclude a written labor contract with the employee for more than one month and less than one year from the date of employment, it shall pay the employee twice the monthly salary. Where an employing unit violates the provisions of this Law and fails to conclude an open-ended labor contract with the laborer, it shall pay the laborer twice the salary every month from the date when the open-ended labor contract should be concluded.
1. The employer has fulfilled the obligation of honesty.
According to the Opinions of the Higher People's Court on Several Issues Concerning the Application of the Labor Contract Law, the conclusion and performance of labor contracts should follow the principle of good faith. If the employee has actually worked for the employer, and the employer has not signed a written contract with the employee for more than one month, whether it is necessary to pay the employee twice, it should be considered whether the employer has fulfilled the obligation of good faith negotiation and whether the employee refuses to sign it. Of course, this kind of negotiation should be aimed at concluding a written labor contract.
If the employer has fulfilled its obligation of good faith and fails to sign a labor contract for reasons other than force majeure, unexpected circumstances or the employee's refusal to sign, it does not belong to the situation that the employer "has not signed a written labor contract with the employee" as mentioned in relevant laws and regulations; If a written labor contract is not concluded due to the employer's reasons, the employer shall pay the employee twice the salary according to law.
However, the employer still bears the burden of proof for the employee's refusal to sign a labor contract. According to Article 6 of the Labor Dispute Mediation and Arbitration Law, in the event of a labor dispute, the parties have the responsibility to provide evidence for their claims. If the evidence related to the disputed matter belongs to the management of the employer, the employer shall provide it; If the employer fails to provide it, it shall bear the adverse consequences.
Both parties reach an agreement on the main contents of the contract.
In reality, there is another situation, that is, although the two parties have not formally signed a labor contract, they have reached an agreement on the contents of the labor contract through e-mail, which should be regarded as a written labor contract. Although the "Labor Contract Law" does not list the forms of written labor contracts, as one of the written forms, statutory data messages should not be excluded from the written forms of labor contracts if the law does not deny them.
However, it should be noted that the employer can't reflect the completion of the agreement and agreement between the two parties with only one employment letter, because there is no signature confirmation from both parties in the general employment letter, so it can't be considered as signing a written labor contract.
3. Retired and rehired personnel and interns
If a worker reaches retirement age or begins to enjoy basic old-age insurance benefits, the labor contract shall be terminated according to law. Article 7 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases clearly stipulates: "If an employer has a labor dispute with an employee who enjoys pension insurance benefits or receives a pension according to law and brings a lawsuit to the people's court, the people's court shall handle it according to labor relations."
According to Article 12 of the Opinions of the former Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law of People's Republic of China (PRC): "Students who work and study in their spare time are not regarded as employment, and labor relations have not yet been established, and labor contracts may not be signed."
4. The application for double wage labor arbitration cannot exceed the limitation period.
The Labor Dispute Mediation and Arbitration Law stipulates: "The limitation period for applying for labor dispute arbitration is one year. The limitation period for arbitration shall be counted from the date when the parties know or should know that their rights have been infringed. " This is the general prescription for applying for labor dispute arbitration.
At the same time, the Labor Dispute Mediation and Arbitration Law also stipulates: "If there is a dispute over the arrears of labor remuneration during the duration of labor relations, the laborer's application for arbitration is not limited by the limitation period of arbitration stipulated in the first paragraph of this article; However, if the labor relationship is terminated, it shall be proposed within one year from the date of termination of the labor relationship. " This is the so-called special provision of labor remuneration.