Labor employment risks

After the Labor Contract Law came into effect on January 1, 2008, more and more workers have learned to use the law to protect their legitimate rights and interests, but employers often fail to pay attention or pay attention to them. Labor laws and regulations, especially the lack of risk prevention awareness and evidence awareness, have led to a high failure rate in labor dispute cases. To this end, the author summarizes some common legal risks in labor employment and proposes corresponding preventive measures for reference. 1. Legal risks and prevention during recruitment (1) Risk reminder Recruitment is the starting point of the entire labor relationship, and there are many potential risks. If an employer fails to comply with relevant legal provisions on employment services when issuing recruitment announcements, it will not only be subject to corresponding administrative penalties, but will also have a negative impact on the employer's image. If the employer's recruitment announcement is illegal, untrue, unreasonable, or inappropriate, it may also cause trouble for future employment and management. If an employer recruits workers whose labor contracts have not been terminated or terminated with other employers and causes losses to other employers, it will face the legal risk of being jointly and severally liable for compensation in accordance with Article 91 of the Labor Contract Law. ; If the employer recruits workers with underlying diseases or occupational diseases, according to the provisions of Article 42, Paragraph 3 of the "Labor Contract Law", the employer cannot dismiss them at will during the medical treatment period. Not only can the employer not be better On the contrary, it will also face the risk of having to pay additional sick leave wages, occupational disease treatment fees and work-related injury insurance benefits to workers. (2) Preventive measures 1. When recruiting workers, the recruitment conditions (i.e. the basic employment conditions stipulated by laws and regulations and the knowledge, culture, technical level, work experience and other conditions stipulated by the employer) should be clearly stated in the recruitment announcement, and the recruitment conditions should be followed in a timely manner. Exercise the right to verify the authenticity of the applicant's personal information. However, the employer shall not use the exercise of verification power to detain the employee's resident identity card and other documents, nor may it require the employee to provide a guarantee or collect property from the employee in other names. 2. When recruiting, applicants must be truthfully informed of the job content, working conditions, working location, occupational hazards, production safety conditions, labor remuneration, as well as other information such as employment forms, social insurance, working hours, rest and vacation, labor discipline, reward and punishment systems, etc. And pay attention to the consistency between the content of the recruitment announcement or truthful notification and the content that should be covered in the subsequent labor contract. 3. When recruiting workers, attention should be paid to asking and reviewing the certificate proving that the employment relationship between the applicant and the original unit has been terminated or terminated, and the original certificate provided by the applicant should be retained. If you encounter job seekers who have not terminated their labor contracts with their original units and who can establish multiple labor relationships in accordance with judicial interpretations and other regulations (such as those who have been laid off without pay, those who have retired before the legal retirement age, those who have been laid off and those who have been laid off for business operations, etc.) (persons on long leave), they should be required to go to their original unit to issue a written certificate approving their joining the current unit, and keep the original certificate. 4. When recruiting, a special entry registration form, employee entry statement, etc. should be designed. In addition to requiring employees to provide necessary resumes, fill in the entry registration form, state that they have been informed of the relevant notifications, and are responsible for the authenticity of the application materials they provide, etc. In addition, new employees should also be required to undergo an onboarding health examination. 2. Legal risks and prevention of not entering into a written labor contract in accordance with the law (1) Risk warning 1. Risk of not entering into a written labor contract. According to the provisions of Articles 7 and 10 of the "Labor Contract Law", the basic legal fact causing the creation of a labor relationship is employment. "The start of employment" is a sign of the establishment of a labor relationship, and the conclusion of a written labor contract is a special matter for both parties to establish a labor relationship. It is the legal obligation of the employer and shall not exceed the maximum grace period of one month (from the date of employment). According to the provisions of Paragraph 1 of Article 82 and Paragraph 3 of Article 14 of the Labor Contract Law, if the employer fails to conclude a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall report to The employee shall be paid twice the salary every month; if the employer does not conclude a written labor contract with the employee for one year from the date of employment, the employer and the employee shall be deemed to have entered into an open-term labor contract.

3. Employers should know that it is their legal obligation to pay social insurance premiums for workers, and that they are paying social insurance for employees who have statutory payment obligations. Employers paying social insurance premiums in accordance with the law are conducive to the stability of their workforce and employment risks. dispersion and self-development; any agreement between the employer and the employee not to pay social insurance in accordance with the law is invalid. 4. The employer may regard a newly hired employee's unwillingness to pay the social insurance premiums as one of the conditions for employment and refuse to hire the employee. 5. Legal risks and prevention in adjusting workers’ job positions (job transfers) (1) Risk reminder: Job positions are the embodiment of the “work content” of the necessary provisions of the labor contract. Once determined, they cannot be changed except in accordance with legal conditions and procedures. In practice, except for promotion adjustments where employees will not raise objections, in most cases employees will not agree to adjust their job positions. If the employer forces the adjustment, it will easily lead to conflicts and disputes. According to the provisions of Articles 35 and 40 of the Labor Contract Law, the employer can adjust the employee's work position under four circumstances: 1. The employer and the employee reach an agreement through consultation; 2. The employee is sick. Or the employee is not injured due to work and is unable to perform the original job after the prescribed medical treatment period expires; 3. The employee is not competent for the job; 4. The objective circumstances on which the labor contract was concluded have undergone major changes, making it impossible to perform the labor contract. The employer and the employee reach an agreement through consultation. In cases 2 and 3, the employer has the right to unilaterally transfer positions. Job transfers should be legal and reasonable. Job transfers do not necessarily mean salary increases. If a job transfer or salary reduction forces an employee to resign, the employer will face the risk of paying financial compensation or making up wages and paying financial compensation. If the employer adjusts employees' positions and salaries without authorization without complying with legal provisions, and then terminates the labor contract on the grounds that the employees do not comply with the position adjustment, the employer will face illegal termination according to Article 80 of the Labor Contract Law. According to the provisions of Article 7, compensation shall be paid to workers at twice the economic compensation standard. (2) Preventive measures 1. Job transfer is a common type of labor contract change. The legal provisions of labor contract changes should be complied with, and the following conditions must be met: comply with the provisions of the labor contract or the employer's rules and regulations; comply with the employer's production and operation requirements Objective needs; the salary level of the employee after the transfer is basically the same as that of the original position (except for the two situations where the employer has unilateral transfer rights); it is not insulting or punitive; there are no other violations of laws and regulations. 2. Regarding the transfer of "incompetent for work", it is necessary to correctly understand and have sufficient evidence. "Incompetent for work" refers to the inability to complete the tasks agreed in the labor contract or the workload of people in the same type of work and the same position as required. 3. For job transfers where "objective circumstances have undergone major changes", it is also necessary to correctly understand that the "objective circumstances" here refer to the objective conditions necessary for the performance of the original labor contract, force majeure or other circumstances that make it impossible to perform some of the terms of the labor contract. Circumstances, such as natural conditions, enterprise relocation, mergers, asset transfers, changes in business methods and business scope, etc., make it impossible or unnecessary to perform the original labor contract. Under such circumstances, if negotiation fails to transfer the job, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary in lieu of notice, but financial compensation must be paid. 4. The employer should specify the employee’s job position in the labor contract (do not describe it broadly), and try to avoid the clause that “the employer has the right to adjust the employee’s job position as needed” (such clauses are often due to the exclusion of workers rights and cannot become the legal basis for the employer to unilaterally transfer positions). 6. Legal risks and prevention of applicable rules and regulations (1) Risk warning Legal and effective rules and regulations are the "law" for employers to regulate internal management and are an important basis for employers to exercise their labor management rights and labor contract termination rights.

According to Article 19 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases, "The rules and regulations formulated by the employer through democratic procedures in accordance with the provisions of Article 4 of the Labor Law shall not violate national laws and administrative regulations. and policy provisions, and have been announced to workers, they can be used as the basis for hearing labor dispute cases. "The employer's rules and regulations must be fully qualified to formulate the subject, the content of the system is legal, the formulation process is democratic, and the implementation is public and informed." statutory requirements. Otherwise, if you apply the rules and regulations to terminate the labor contract, you will face the legal risk of illegal termination and the payment of economic compensation to the employee in accordance with the law. (2) Preventive measures 1. Correctly view the formulation of rules and regulations. It is a major thing that any employer should do to formulate a set of standardized, rigorous and detailed rules and regulations in strict accordance with the legal provisions (this is both a right and an obligation), especially the employer's leave request system and overtime or overtime approval system must be Sound and perfect. 2. Regarding the effectiveness of rules and regulations. First, the formulation subject must be qualified. The formulator must be the employer, not the workshop or team. Secondly, the content of the rules and regulations must be legal and reasonable (legality is the prerequisite, and being reasonable is equally important). When formulating rules and regulations, employers should pay special attention not to violate some mandatory provisions of the law. They should also pay attention to avoid the appearance of unreasonable regulations that are not illegal but are not allowed to go to the toilet frequently, such as how long it takes to finish lunch. Conditional It is best for the unit to ask a lawyer or a legal professional team to help it comprehensively check the situation. Third, it must be formulated through democratic procedures. After discussion at the workers’ congress or all employees, plans and opinions are put forward and determined through equal consultation with the trade union or employee representatives (the employer’s rules and regulations cannot have “overlord clauses” that exempt themselves from legal responsibilities and exclude workers’ rights. Employees have the right to participate in this. developed or modified). Fourth, after formulation, it must be disclosed to employees so that they are aware of it. It is necessary to keep good evidence for the above related processes, so that the formulation or modification of rules and regulations is well-documented (such as convening a meeting, with meeting notices, sign-in sheets, meeting records or meeting minutes, etc.), and the fulfillment of the obligation to inform rules and regulations is well-documented ( For example, the issuance of rules and regulations text, circulation and study, posting in the public column, signed receipt registration form with date, circulation and study signature confirmation form, full background photos, etc.). 3. Regarding the application of rules and regulations to dismiss employees. It only applies when an employee seriously violates rules and regulations. In this regard, employers should make "four guarantees". First, they should ensure that the rules and regulations are effective; secondly, they should grasp the "serious" scale (distinguish between general violations and serious violations) based on the characteristics of the industry and the actual position, and ensure that there are specific violations in the rules and regulations. regulations; thirdly, it should be ensured that the facts of employees' violations are highly consistent with the specific provisions of the rules and regulations; finally, the procedures for notifying the trade union in advance and issuing a certificate of termination of the labor contract should be fulfilled in place. 7. Legal Risks and Prevention of Unilateral Termination of Labor Contracts (1) Risk Tips Disputes arising from the unilateral termination of labor contracts by employers have always been a relatively large proportion of labor dispute cases.

Based on the provisions of Articles 36, 39, and 40 and 41 of the Labor Contract Law, there are *** fourteen situations in which the employer may terminate the labor contract with the employee: 1. The employer and the employee The workers reach consensus through consultation; 2. The worker is proven not to meet the employment conditions during the probation period; 3. The worker seriously violates the rules and regulations of the employer; 4. The worker commits serious dereliction of duty, commits malpractice for personal gain, and causes significant damage to the employer. 5. The employee establishes a labor relationship with other employers at the same time, which has a serious impact on the completion of the work tasks of the employer, or refuses to make corrections after the employer proposes it; 6. The employee uses fraud, coercion or takes advantage of others' danger, The employer concludes or changes the labor contract against its true intention; 7. The employee is held criminally responsible in accordance with the law; 8. The employee is sick or injured not due to work and cannot engage in the original work after the prescribed medical period expires. 9. The employee is not qualified for the job and is still unable to do the job after training or adjusting his job position; 10. There is a significant change in the objective circumstances on which the labor contract was concluded, As a result, the labor contract cannot be performed, and the employer and the employee fail to reach an agreement on changing the content of the labor contract after negotiation; 11. The employer reorganizes in accordance with the provisions of the Enterprise Bankruptcy Law; 12. The employer encounters serious difficulties in production and operation; 13. The enterprise changes production, undergoes major technological innovation or adjusts its business methods, and still needs to lay off employees after changing the labor contract; 14. Other major changes in the objective economic conditions based on which the labor contract was concluded make it impossible to perform the labor contract. Except for item 1, all are terminated unilaterally by the employer. Among them: Items 2 to 7 are for immediate termination without prior written notice due to the employee’s fault, items 8 to 10 are for termination that requires thirty days’ written notice or an additional month’s salary in lieu of notice, and items 11 to 14 are for economic reasons. Layoffs. For unilateral termination of the labor contract by the employer, the Labor Contract Law also requires that the reason be notified to the union in advance, the union must study the opinions raised by the union, and finally notify the union of the result (Article 43). At the same time, the law also stipulates that the employer must perform the obligation to provide proof for the termination of the labor contract (Article 50). If the employer violates the regulations and terminates the labor contract, based on the provisions of Articles 48 and 87 of the Labor Contract Law, if the employee does not require the continued performance of the labor contract or the labor contract can no longer be performed, the employer shall Single