I. Sanctioning employees for jumping ship in breach of contract with methods such as withholding files.
A year ago, a Shanghai machinery factory signed a labor contract with Xiao Zhou, a recent graduate (non-Shanghai national). The factory paid the education subsidy fee to the university where Xiaozhou was studying and dropped Xiaozhou's account into the collective account of the factory. Both parties agreed in the labor contract that Xiao Zhou must serve the enterprise for five years, and if Xiao Zhou terminated the labor contract early, he should be compensated for the liquidated damages. Half a year later, Xiao Zhou proposed to resign. The machine shop approved Zhou's resignation, but demanded payment of liquidated damages. Zhou refused to do so, so the machine shop did not go through the formalities for Zhou's retirement and withheld his personnel file. After another three months, Zhou filed a labor dispute arbitration case, requesting the factory to handle the dismissal procedures and transfer his personnel file. The factory, on the other hand, filed a counterclaim, requesting Zhou to pay liquidated damages. As a result, the arbitration tribunal only supported Zhou's request, but the factory's request is not supported. Where is the stupidity: the formalities for the dismissal of the employer is a legal obligation of the employer. After the resignation of Xiao Zhou, the factory approved the resignation, which should be handled in a timely manner for Xiao Zhou. For the violation of the workers' right to employment, should be corrected. The machinery factory's counterclaim is different, it embodies a property relationship, and is generally subject to the limitation period in law. Because the machine shop did not file a labor dispute arbitration within sixty days of Zhou's refusal to pay the liquidated damages, it gave up the opportunity to assert its rights. By the same token, if not affected by the statute of limitations, the machine shop should also be liable for civil damages to compensate for the corresponding losses caused by Zhou's delayed withdrawal from work.
After an employer terminates or dissolves a labor relationship with a worker, the employer should complete the return-to-work registration and filing procedures within 7 days and do a good job of transferring the personnel file. If the employee leaves the company in breach of contract, please make sure to file an arbitration application with the Labor Dispute Arbitration Committee within the validity period.
Second, in order to facilitate the dismissal of employees, continue to use the "expired contract".
Small Xia's five-year labor contract was about to expire at a company in Shanghai. The new manager was not satisfied with his performance, but did not find a suitable candidate. The two sides did not terminate the labor relationship, but did not renew the contract either. Three months later, the manager finds the newcomer and informs Xia that his contract has expired and the company has decided to terminate the labor relationship with immediate effect. Xiaoxia disagreed with the immediate termination of the labor relationship and demanded financial compensation. The two sides failed to negotiate, Xiaoxia submitted to the labor dispute arbitration, the arbitration tribunal did not support the economic compensation requirements. Xiaoxia not convinced, litigation to the court, and finally obtained the termination of labor relations economic compensation equivalent to five months of wages more than 32,000 yuan.
Where is the stupidity: for the expiration of the labor contract is not signed a written labor contract and the actual performance, you can find that the workers and employers to maintain a de facto labor relations. Shanghai labor contract regulations: should be concluded labor contracts and not concluded, the worker can terminate the labor relationship at any time, and the employer to terminate the labor relationship should be thirty days in advance notice to the workers. As to whether the worker has the right to demand economic compensation, the regulations vary from place to place and from department to department. According to the Shanghai Labor Arbitration Bureau, as long as the employer gives one month's notice, the employer has no other obligations and does not have to pay economic compensation. The Shanghai Higher People's Court that the employer proposed to terminate the relationship, the workers require the employer to pay economic compensation, the people's court shall support
Due to the arbitration and the court's different points of view, the employer should try to negotiate with the workers in this situation, it is best not to take the case to court. In order to avoid unnecessary losses, can also be noted on the labor contract: the expiration of the contract, the parties did not notify the other party to terminate the labor relationship, as agreed to renew the contract period of one month.
Third, in the labor contract to agree on the service period and liquidated damages, while agreeing to the trial period.
Ling Yun was recruited into the company in October 2003, and signed a 5-year labor contract with a 6-month probationary period.
In December 2003, the company sent Ling Yun to Japan to receive a 3-month technical training, and signed a "training agreement" with Ling Yun. The agreement stipulates that after the training, Ling Yun must serve the enterprise for 5 years; if he resigns during the service period, he must compensate the training cost of 50,000 yuan. 2004 February, Ling Yun completed the training and returned to the company, and soon resigned. The company requested Ling Yun to compensate the company for the training fee according to the Training Agreement, but was refused. The company proposed to the Labor Dispute Tribunal to compensate for the training costs, but did not get support.
Where is the stupidity: During the trial period, the worker can notify the employer to terminate the labor contract at any time. In addition, the service period is the period of time during which the laborer is committed to serve the employer by accepting the special treatment given by the employer. However, when the two overlap, the provisions of the probationary period shall take precedence. Because during the probationary period, the worker enjoys the right to terminate the contract arbitrarily, which is a privilege granted to the worker by the labor law, and the employer has no right to restrict it in the form of contract or agreement. As to whether the loss should be compensated, according to the former ministry of labor office regulations, the employer funded all kinds of technical training for employees, the employee proposed to terminate the labor relationship with the unit, if the probationary period, the employer shall not require the workers to pay for the training costs. The probationary period is not a mandatory clause in the labor contract. The company has agreed to a probationary period in the first place, but when Lingyun goes abroad, he can be allowed to change his job earlier.
Four, agreed to the labor contract liquidated damages, but the amount is less than the actual loss.
2 years ago, a company in Shanghai sent employees Xiaomeng to foreign technical training. The two sides agreed: If the service after the end of the training in the small bud less than 5 years to leave the company, you need to pay liquidated damages of 20,000 yuan, and according to the service has been decreasing year by year to compensate for the training costs of 50,000 yuan. Now Xiaomeng for some reason decided to jump ship, the company asked to pay liquidated damages of 20,000 yuan, while compensation for economic losses of 30,000 yuan (service period has been 2 years), a total of **** 50,000 yuan. Xiaomeng that compensation is too much, the labor dispute arbitration, and finally mediation, Xiaomeng only compensation for economic losses of 30,000 yuan, and no longer pay liquidated damages. Silly where: Xiaomeng at first enjoyed the special treatment of company-funded training, should pay liquidated damages after the breach of contract. In addition, to the other side of the economic losses caused by the actual losses should be in accordance with the liability. However, the Shanghai Municipal Bureau of Labor Security stipulates: "The amount of liquidated damages agreed upon by both parties is higher than the actual loss caused by the breach of contract by the worker to the employer, the worker shall bear the liquidated damages according to the agreement between the two parties; the amount of liquidated damages agreed upon is lower than the actual loss, the employer requests compensation, the worker shall be compensated in accordance with the actual loss." It actually stipulates the principle of taking one of the two, the liquidated damages and the compensation. As the amount of liquidated damages for Moe is lower than the actual loss, it is obviously of little significance.
In Shanghai and other places, the amount of liquidated damages agreed for labor contracts can be slightly higher than the actual loss. But according to the Beijing Municipal Labor Contract Provisions, "The maximum amount of liquidated damages payable by a worker to an employer shall not exceed the total amount of his or her wages for the 12 months prior to the termination of the labor contract."
Fifth, the economic compensation for non-competition is paid with the salary.
Two years ago, a pharmaceutical company in Shanghai signed a non-compete agreement with Xiao Cai, stipulating that he should not work for himself or in a similar enterprise that competes with the company within two years after he left the company, or else he would be liable for breach of contract and financial compensation. Starting last year, the company notified in his salary increased by 800 yuan per month "non-competition compensation". This year, Cai resigned, there is a violation of the non-compete agreement, the company to the Labor Dispute Arbitration Commission arbitration, requiring Cai to fulfill the compensation for economic losses, but did not get support. Silly where: non-competition clause in the labor contract for the delayed entry into force of the provisions of the labor contract, in the labor contract after the termination or termination of the effective date. Since it restricts the workers' right to choose their career for a certain period of time, economic compensation must be agreed upon if a non-competition clause is agreed upon in the employment contract or confidentiality agreement. This economic compensation should be given after the labor contract is dissolved or terminated, and the company adds a sum of money to the employee's monthly salary, which should not be regarded as economic compensation for non-competition.
The economic compensation for non-competition can be given in a lump sum or in installments after the worker leaves the company, and the standard is agreed upon. The resulting dispute, the Shanghai Arbitration Bureau generally according to the worker himself or herself to terminate or terminate the labor contract before the 12 months (less than 12 months according to the actual number of months) of the average wage income of 20% to 30% confirmed.
Six, with a "high salary" instead of social insurance premiums
Shanghai Pudong, a network of companies in order to attract talent, and employees agreed to pay more than 1,000 yuan per month, the company will no longer pay for the employee's social insurance premiums. However, the employee Xiao Yao left his job and asked that namely to the labor inspection brigade report, the company asked him to make up for the social insurance premiums during the work period, was supported.
Silly where: "Labor Law" provides: "Employers and workers must participate in social insurance according to law, pay social insurance premiums." Social insurance is both the rights of workers and the interests of the state. Therefore, even if a worker does not want to participate in social insurance, it is not acceptable. Agreements to replace social insurance with a high salary or commercial insurance, as well as agreements to make the worker personally liable for social insurance obligations that should be borne by the employer, are not legal. The obligation of the employer to pay social insurance premiums remains unavoidable.
The high cost and rigidity of the current urban pension insurance mechanism does affect the motivation of employers to participate in the insurance. In contrast, Shanghai's "town insurance" is a lower "threshold", reflecting the multi-level social security level, it may be worth a try.
Seven, funded the training of employees, but can not get payment vouchers.
July 2003, an automobile factory in order to improve the technical level of maintenance workers, spend a high price from outside the factory invited senior technicians to the factory for technical training, but also for the purchase of a lot of training equipment. Automobile factory regulations, receive training workers resign before the end of the contract period, must be compensated to the automobile factory training fee of 5,000 yuan. Recently, Xiao Qiu proposed to resign, he believes that the car factory requires compensation for training costs without any basis, and apply for labor dispute arbitration. In the labor dispute arbitration committee mediation, the car factory no longer insist on compensation for training fees.
Where is the stupidity: the employer to the early termination of the labor contract to claim training fees, is limited to the scope of the "contribution to the training". Specifically refers to one of the following circumstances: (a) commissioned full-time colleges and universities, research institutes, training centers, vocational schools on behalf of the training of students. (ii) Academic training. (iii) Competency training, such as foreign language level training, professional and technical title (promotion) training, and labor skills training. (d) Going abroad or to other places for training, further study, research, visiting scholars, etc., the cost of which includes all kinds of tuition and fees, round-trip transportation costs, clothing costs and living allowances during the period of stay abroad. The payment vouchers to be provided by the employer mainly refer to the tuition and fees for employee training, and generally do not include the costs of hiring lecturers and purchasing additional equipment. If the car factory can not provide payment vouchers, the employee can refuse compensation.
"Funded training" is a special treatment, all employees can enjoy the training is only internal training. But for the higher content of the internal training, the object should also be rigorously selected, and combined with promotion, pay raises, benefits and other factors, a comprehensive plan to prevent job-hopping.
Eight, the trial staff to set up the "empty city plan".
Small Lu was recruited to a company in Shanghai, the company and he signed a "probationary contract", agreed that the probationary period of three months, a monthly salary of 1200 yuan; trial qualified to sign a formal labor contract, a monthly salary of 2000 yuan, and pay social insurance premiums; in the probationary period, the two sides can be lifted at any time! During the probationary period, both parties could terminate the labor relationship at any time, and the other party could not raise any objection. Two months later, the company proposed to terminate the labor relationship on the ground that Xiaolu did not meet the employment conditions during the trial period. Xiao Lu was not satisfied with the decision and submitted the case to the labor dispute arbitration. Arbitration quite ruling "trial period" contract is invalid, but the company can not terminate the labor relationship, and in the "trial period", also should pay wages 2000 yuan, and make up the social insurance premiums. Silly where: the conclusion of the labor contract is a prerequisite for the agreement of the trial period, not allowed to sign a "trial period contract", do not sign a labor contract; or in the labor contract only agreed to the trial period, do not agree on the contract period. The Shanghai Municipal Regulations on Labor Contracts stipulate: "If the parties to a labor contract only agree on a trial period, the trial period shall not be established, and the period shall be the term of the labor contract." Accordingly, Xiaolu's "trial period contract" is not established, three months "trial period" should be regarded as the contract period. During the contract period, not the probationary period, the employer cannot terminate the labor relationship on the grounds of failure to meet the employment conditions. In addition, because the two sides agreed to regular wages of 2000 yuan, Xiaolu can ask the employer in the "probationary period" to pay the equivalent of regular wages.
If the employer wants to try the employee for three to six months before deciding whether or not to sign a long-term labor contract, it may be better to sign a three- to six-month labor contract and then decide whether or not to renew the contract based on business needs, the employee's performance, and other factors.
Nine, in order to control the cost of overtime, the overtime pay is "marked up".
Shanghai, a shopping mall for employees to make overtime "price tag", such as the provisions of the evening overtime 1 hour 6 yuan; weekend 1 hour 10 yuan, 1 day 50 yuan cap; legal holidays 1 hour 20 yuan, 1 day 100 yuan cap. Department manager Lao Yang felt very disadvantaged, because the overtime pay calculated according to 70% of the monthly salary of his position normal attendance, than the shopping mall "marked price" is higher. When he resigned, he asked the mall to make up for the difference in overtime pay owed to him in accordance with the provisions of the Labor Law. The two sides failed to negotiate, Lao Yang filed a labor dispute arbitration, won support.
Where is the stupidity: according to the Labor Law: the usual overtime payment of not less than one hundred and fifty percent of the wages of the wage compensation; rest day overtime can not be arranged to make up for the rest of the payment of not less than two hundred percent of the wages of the wage compensation; statutory vacations overtime payment of not less than three hundred percent of the wages of the wage compensation. Of course, if the unit's economic efficiency is relatively good, as long as the "marked price" of overtime pay is not lower than the legal standard of overtime pay for employees, it is also allowed. However, if there is a big difference between the wages of the employees, then the employees with higher wages will still feel that they are at a disadvantage and think that the company is not dealing with them fairly. It is not necessary to calculate overtime pay at 70% of the worker's monthly salary, but overtime pay can also be determined according to the wage standard corresponding to the worker's own position (job) as agreed in the labor contract. The latter is more conducive to the employer to control overtime pay.
Ten, in order to retain talent in the long term, deliberately not agreed upon the period of service.
Three years ago, a foreign trade company is ready to expand its business in Europe, reimbursed Xiaoliu 50,000 yuan of tuition fees for three years to learn advanced oral translation, and signed an open-term labor contract with Xiaoliu. This year, Xiaoliu proposed to resign, the company asked for compensation for 50,000 yuan of training fees. Xiao Liu is not convinced, to labor dispute arbitration, the result is only 20,000 yuan compensation.
Silly where: According to the former Ministry of Labor Office of the provisions of the employer-funded technical training of all types of workers, workers proposed to terminate the labor relationship with the unit, if the probationary period, in the contract period, the employer can require workers to pay for the training costs, the specific method of payment is: the agreed period of service according to the period of service, such as the amount of funds contributed to the period of service has been fulfilled by the workers diminishing service period The specific payment method is: the agreed period of service by the period of service, etc., the amount of funds divided by the labor contract, the employee has performed the contract period of decreasing payment; did not agree on the contract period, according to the five-year period of service, etc., the amount of funds divided by the period of service, the employee has been performed by the diminishing period of service payment.
The foreign trade company wants to use Xiaoliu for a long time, instead of contracting an open-ended labor contract without agreeing on a service period, it is more cost-effective to agree on a service period of ten years.
The company wants to use Liu for a long time.