How can enterprises reasonably and legally avoid the risks of the labor contract law 2011May 27th How can enterprises reasonably and legally avoid the risks of the labor contract law With the implementation of the Labor Dispute Mediation and Arbitration Law of People's Republic of China (PRC), the Labor Contract Law and the Regulations for the Implementation of the Labor Contract Law, workers' awareness of rights protection has gradually improved, and more and more workers have applied for labor dispute arbitration. Of course, there are also disputes between individual workers and enterprises, trying to seek illegitimate interests through existing laws. In the labor relationship between enterprises and workers, enterprises are the strong ones; However, under the current legal framework, once a labor dispute occurs, whether in the early stage of labor dispute arbitration or in the subsequent stage of labor dispute litigation, enterprises are actually in a weak position. Because in the face of capital and powerful enterprises, workers are generally in a weak position in people's eyes, and one of the legislative purposes of the Labor Contract Law is to "establish and develop harmonious and stable labor relations". After a labor dispute, even if the enterprise is not at fault, people will think that the enterprise is bullying the weak, and arbitration institutions and courts will sympathize with the workers. Therefore, it is particularly important for enterprises to win the fair treatment of arbitration institutions and courts under their own legal conditions. This paper will make a preliminary discussion on how to avoid the unfavorable situation in the labor dispute-prone links reasonably and legally through several situations that are easy to occur in the current labor dispute. 1. The service function of the terms such as the name and address of the laborer to the termination of the labor contract 2. The term of the labor contract determines the date when the labor relationship is established, and the starting time of economic compensation and social insurance payment is calculated. Whether to dissolve or terminate the probation period in advance: Article 2 1 This contract shall not be dissolved except in the circumstances specified in Article 39 and Article 40 1 and 2, and the reasons shall be given if it is dissolved. Item 39 1: How to handle the supplementary certificate that does not meet the employment conditions during the probation period is different from the dissolution of the labor contract after the probation period: it can be submitted at any time, and it is not clear whether it is oral or written, but the reasons need to be explained and no compensation needs to be paid; It needs to be submitted 30 days in advance, notified in writing, and paid economic compensation according to Article 47. Salary during probation period: Article 20 shall not be lower than the minimum wage of the same position in the unit or 80% of the wage agreed in the labor contract, and shall not be lower than the minimum wage standard in the place where the employer is located. Three. The job content and place of work are used to determine whether the post salary conforms to Article 40, Item 2: Reasons for termination of the contract after being incompetent, trained or adjusted. After adjustment, the workplace is used to determine the minimum wage standard, labor protection, working conditions, occupational hazard protection and the average monthly wage standard of employees in the previous year (regulation 14), which is applicable to enterprises with multiple business premises. (The place where the labor contract is performed shall prevail. If the standard of the place of registration is high, if both parties have an agreement, such agreement shall prevail. ) 4. Limitation of labor disputes involving labor remuneration 1. According to Article 27 of the Labor Contract Dispute Mediation and Arbitration Law, the limitation period for applying for labor dispute arbitration is one year, which can be suspended or suspended from the date when the parties know or should know that their rights have been infringed. 2. Limitation of disputes over unpaid labor remuneration Paragraph 4 of Article 27 of the Labor Contract Dispute Mediation and Arbitration Law stipulates that if there is a dispute over unpaid labor remuneration during the existence of labor relations, the employee's application for arbitration is not limited by the limitation period of arbitration stipulated in Paragraph 1 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. 3. Exceptions to the Limitation of Action for Disputes over Arrears of Labor Remuneration Article 3 of the Supreme People's Court's Interpretation II on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases stipulates that the laborer directly brings a lawsuit to the people's court on the grounds of the employer's arrears of wages. If the litigation request does not involve other labor relations disputes, it is regarded as ordinary civil disputes, that is, such cases are subject to the limitation of action of two years, and there is no arbitration pre-procedure. 4. "The date of labor dispute" For wage disputes, the arbitration commission generally regards the "date of wage payment" as the date when the employee "knows or should know that his rights have been infringed", that is, the date when the labor dispute occurs. The Supreme People's Court's "Interpretation II on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases" clearly stipulates this. The first paragraph of Article 1 stipulates that if the employer can prove that it has notified the employee in writing that it refuses to pay wages, the date when the written notice is served shall be the date when the labor dispute occurs. If it cannot be proved, the date when the employee claims the right is the date when it occurs. For disputes over unpaid wages during the duration of labor relations, workers can apply for arbitration at any time during the duration of labor relations, provided that the employer cannot prove that the Notice of Refusal to Pay Wages has been served on the workers. 5. How can enterprises avoid and reasonably apply the burden of proof? The enterprise needs to do the following work: (1) If it refuses to pay the employee's salary this month, it needs to send the Notice of Refusal to Pay the Employee in writing at a reasonable time before the salary payment date to solve the problem of starting the limitation period after the labor dispute occurs. (2) Due to the fact that wage arrears belong to the prescription of ordinary civil litigation, there is no need for arbitration, so enterprises should be cautious in issuing wage arrears to workers. (3) The enterprise shall properly keep relevant documents. V. Whether the arrears of social insurance for workers belong to labor disputes Social insurance disputes include: the employer fails to pay social insurance for the workers according to law, the employer signs an agreement with the workers to give up social insurance, or the workers pay social insurance by themselves, and the workers ask the employer to pay social insurance benefits. 1. Legal Consequences of Employers Failing to Pay Social Insurance for Laborers Article 73 of the Labor Law and Article 4 of the Provisional Regulations on the Collection and Payment of Social Insurance stipulate that employers and laborers must pay social insurance in full and on time. Before the implementation of the Labor Contract Law, the Labor Law did not specify that the employer did not pay social insurance for the workers, but only stipulated that the employer failed to provide working conditions as agreed, and the workers could notify the employer to terminate the labor contract at any time. Article 35 of the Beijing Labor Contract stipulates that if the employer fails to pay social insurance for the workers according to law, the employer shall pay social insurance premiums according to law, but it does not stipulate that economic compensation can be obtained. After the implementation of the Labor Contract Law, according to Article 38 of the Labor Contract Law, if the employer fails to pay social insurance for the employee, the employee may notify the employer to terminate the contract at any time and may request economic compensation, but the compensation period for economic compensation shall be calculated from 2008. 1. 1. What needs attention here is the obligation of workers to inform, and it is not clear whether it is oral or written. Both enterprises and workers should pay attention to retaining evidence. 2. Whether the employer fails to pay social insurance for workers is a labor dispute Article 2 of the Regulations on Handling Labor Disputes in Enterprises and Article 3 of the Labor Mediation and Arbitration Law both stipulate that disputes arising from social insurance are labor disputes. However, it is not clearly pointed out that any dispute arising from social insurance belongs to labor dispute. Distinguish the specific situations in practice: (1) If a worker asks the employer to pay social insurance benefits, it will basically be treated as a labor dispute in practice. The labor law stipulates that workers enjoy various social insurance benefits according to law; Article 60 of the Regulations on Work-related Injury Insurance stipulates that if the employer fails to pay work-related injury insurance for the employee according to law, the employer shall pay insurance benefits to the employee according to the work-related injury insurance items after the employee suffers a work-related injury. Article 1 of Interpretation I of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases stipulates that disputes between retired workers and the original employers who have not yet participated in social insurance co-ordination on the recourse of pensions, medical expenses, industrial injury insurance benefits and other social insurance premiums belong to labor disputes. Articles 2 and 5 of the Labor Dispute Arbitration and Mediation Law also include work-related injury expenses in the scope of labor disputes. In the Reply of the First People's Court of Beijing Higher People's Court on Accepting Disputes between Enterprises and Employees for Paying Social Insurance, it is stipulated that disputes arising from social insurance shall be accepted as labor disputes, except disputes arising from paying social insurance between workers and employers. Therefore, according to the above provisions, it belongs to the scope of labor disputes if workers demand to pay social insurance benefits. 3. If the employer fails to pay social insurance for the employee as a whole, the employee's request to pay social insurance for him is basically considered not to be a labor dispute in practice, and it is generally not accepted. The legal basis is stipulated in Article 100 of the Labor Law. If the employer fails to assist in paying social insurance premiums, the labor administrative department shall order it to pay within a time limit, and overdue fines may be added. Article 13 of the Provisional Regulations on the Collection and Payment of Social Insurance Premium stipulates that if the payer fails to pay and withhold the social insurance premium of cotton as required, the labor insurance administrative department or the tax authorities shall order it to pay within a time limit. In 2004, the First Trial Chamber of the Beijing Higher People's Court pointed out in the summary report of labor dispute cases that according to the Provisional Regulations on the Collection and Payment of Social Insurance Fees, and referring to the relevant provisions of the Measures for the Administration of Supervision and Reporting of Social Insurance Funds, the Measures for Administrative Supervision of Social Funds and the Measures for Handling Social Insurance Administrative Disputes, the employer as a whole has no "three insurances", and if the laborer requests to handle social insurance issues, he should report to the labor inspection department and refuse to accept them; Workers who have opinions on the social security base should inform the social security center for verification, and the court will not accept it; Other disputes arising from social insurance shall be accepted by the court. Accordingly, local courts believe that the collection and payment of social insurance belongs to the administrative responsibility of administrative organs, and judicial power should not interfere. If the enterprise as a whole does not have three insurances, or it is common for enterprises to default on three insurances, it shall be handled by the labor administrative department. 4. If the employer fails to pay social insurance for the employee, and the employee requests to pay social insurance for him, the Beijing Municipal Court shall accept it. In 2005, the People's Court of Beijing Higher People's Court informed the trial of labor disputes in Beijing in the new period and its countermeasures, which pointed out that the court should play the role of judicial supervision and accept such cases in which enterprises fail to pay or default on the three insurances for another employee. 5. Whether the dispute arising from the employer's failure to pay social insurance to the individual employee should be limited by the limitation of arbitration. According to the current law, it should be limited by the one-year limitation of arbitration. But in theory, social insurance, as a compulsory insurance, aims to establish a social security system by forcing employers and workers to pay social insurance, transfer the responsibility of employers to the society through social insurance, reduce the risks of employers, and enable workers to obtain corresponding material security in the case of old age and illness. For the employer, this is a legal obligation of the employer and must be fulfilled, so it should not be limited by the limitation of arbitration. 6. The social insurance base is determined according to the average monthly salary of employees in the previous year when the labor contract is performed. Beijing stipulates that employers can pay social insurance for employees according to 60% or 70% of the average monthly salary of employees in the previous year, or according to the local minimum wage standard. 7. How can enterprises reasonably avoid labor disputes caused by social insurance? Enterprises in Beijing have generally been included in the overall social insurance system, and there is no problem of not paying social insurance to workers as a whole. However, there is a problem that individual workers are not paid social insurance. Even if the employer fails to pay the social insurance in full and on time, the employee will not put it forward during the labor relationship, but will put it forward together with the labor remuneration when the labor relationship terminates. The arbitration institution will accept the case and make a ruling at the same time, requiring the employer to handle the overall procedures of endowment insurance, unemployment insurance and medical and social insurance for serious illness for employees during the existence of labor relations, and requiring employees to bear the amount that individuals should pay. (1) An enterprise shall pay social insurance for its employees from the date of establishing labor relations. (2) Agree with the employee on the base of social insurance payment. The enterprise shall pay social insurance for the employee according to law. In order to avoid the calculation basis of insurance expenses after disputes, enterprises should agree on the payment base of insurance expenses with workers in the contract without violating the local social insurance payment base, or directly agree in the contract to pay social insurance for workers according to the local minimum wage standard. Labor disputes over unpaid overtime pay should be dealt with 1, and the legal consequences faced by enterprises for not paying overtime pay. Article 85 of the Labor Contract Law stipulates that if an employer fails to pay labor remuneration in full and on time in accordance with the contract or state regulations, or arranges overtime work without paying overtime wages, the labor administrative department shall order it to pay within a time limit, and if it fails to pay within the time limit, it shall order the employer to pay 50%- 100% of the payable amount. 2. The enterprise's response (1) clarifies that the composition of labor remuneration and payment management involve how to calculate economic compensation after the labor contract is dissolved or terminated. Enterprises usually stipulate the basic salary of workers in labor remuneration, which consists of two parts, namely post salary and performance salary. The position is clear, but the performance is difficult to determine. Workers will take the average salary of 12 months as the calculation basis, including basic salary, funds, overtime pay, subsidies, etc., while enterprises often calculate according to the basic salary in labor contracts, which is very different. Therefore, enterprises should clearly stipulate the wage standards of workers, and pay special attention to the examination and approval and payment methods of overtime wages and bonuses. (II) Strict Working Hours Management The Ministry of Labor has implemented the Regulations on Working Hours of Employees in the State Council, and determined that the standard working hours system is 8 hours a day and 40 hours a week. For local enterprises that cannot implement the standard working hours system due to the nature of work or production characteristics, they can implement the flexible working hours system or the comprehensive working hours system, but they should be reported to the labor administrative department for examination and approval. The Ministry of Labor's "Measures for Examination and Approval of Enterprises Implementing Flexible Working Hours and Comprehensive Working Hours" can implement a comprehensive working hours system for some employees who are limited by seasonal and natural conditions, such as tourism, that is, the working hours are calculated comprehensively by week, month, quarter and year, but their average daily working hours and average weekly working hours should be basically the same as the legal standard working hours. For shopping centers, hotels and other enterprises subject to seasonal restrictions, we can consider applying the comprehensive working hour system. (III) Strict leave management According to the Regulations on Paid Annual Leave for Employees and the Implementation Measures for Paid Annual Leave for Enterprise Employees, the leave management of enterprises is standardized. Workers who have worked continuously for at least 12 months are entitled to five days of paid annual leave, excluding family leave, funeral leave, maternity leave and other state-stipulated holidays and paid periods for work-related injuries. If the enterprise fails to arrange annual leave or the number of days of annual leave arranged is less than the number of days to be taken, it shall pay 300% of the daily wage income of annual leave. Daily wage1February, and the average daily wage after overtime pay is divided by the number of days in the month 2 1.75 days. The enterprise can only pay the salary income during the normal working period if the employee puts forward the plan in writing endlessly for personal reasons. (4) Pay attention to the limitation of burden of proof in arbitration and litigation. Article 39 of the Labor Dispute Mediation and Arbitration Law stipulates that if the laborer cannot provide the evidence related to the arbitration request controlled and managed by the employer, the arbitration tribunal may require the employer to provide it within a time limit, and failure to provide it will have adverse consequences. Article 6 of the Rules of Evidence: In a labor dispute case, if a labor dispute occurs due to the decision of the employer to dismiss, remove, expel, terminate the labor contract, reduce labor remuneration, and calculate the working years of the employee, the employer shall bear the burden of proof. Judicial Interpretation 1 Article 13 If a labor dispute arises due to the decision of the employer to dismiss, remove from the list, dismiss, terminate the labor contract, reduce the labor remuneration, and calculate the working years of the laborer, the employer shall bear the burden of proof. According to the relevant provisions of the Labor Contract Law, if the employee establishes a labor relationship with the employer, there is no situation as stipulated in Article 39 of this Law, and the employee fails to voluntarily terminate or terminate the contract at the expiration of the labor contract, unless the conditions agreed by the employer or the labor contract are improved and the employee does not agree to renew it, the employer shall make economic compensation to the employee; However, if the employer terminates the labor contract in violation of the law, according to the provisions of Article 87 of this Law, the employer shall pay compensation twice as much as the economic compensation, but if it pays compensation, it will no longer pay economic compensation. So enterprises should pay attention to the following aspects: 1. Keep in mind and implement Article 39 of the Labor Contract Law. If there are 39 cases of workers, the employer may terminate the contract without paying economic compensation to the workers. Among them, the most easily executed by enterprises and difficult for workers to defend is the second item of the first paragraph of Article 39, "serious violation of the rules and regulations of the employer". 2. Strictly formulate rules and regulations to lay the foundation for the application of Article 39. The rules and regulations of the enterprise will be attached to the labor contract, which requires the workers to abide by and has the same legal effect as the labor contract. In labor dispute cases involving illegal termination of labor contracts, the court will also consider the specific provisions of enterprise rules and regulations, determine whether the reasons for the termination of labor contracts are established, determine whether the workers violate the rules and regulations, and finally determine whether the enterprises illegally terminate labor contracts. Therefore, enterprises should review the current rules and regulations of enterprises according to law to ensure that there is no conflict with laws and regulations, and ensure that their terms are clear and specific, especially for what is a "serious violation". 3. Publicity of enterprise rules and regulations Article 4 of the Labor Contract Law stipulates that when an employer formulates, modifies or decides rules and regulations or major issues that directly affect the vital interests of workers, such as labor remuneration, working hours, rest and vacation, labor safety and health, insurance and welfare, employee training, labor discipline, and labor quota management, it shall discuss with the workers' congress or all employees, put forward plans and opinions, and determine them through equal consultation with trade unions or employee representatives. The employing unit shall publicize or inform the rules and regulations and major issues directly related to the vital interests of workers. For the normal operation of enterprises, the above system has usually been formulated, and it is necessary to pay attention to how to inform workers. The reference method is as follows: (1) Take the above-mentioned rules and regulations concerning the vital interests of workers as a compilation, as an annex to the labor contract, and submit them to the workers together with the text of the labor contract; (2) Separate clauses in the text of the labor contract, making it clear that workers should learn the rules and regulations within a specific time after entering the job; Seven. Pay attention to the special provisions on the termination of the contract for female employees. If Article 42 of the Labor Contract Law stipulates that a female employee is pregnant, giving birth or breastfeeding, the employer shall not terminate the labor contract in accordance with Article 40 and Article 4 1. If the labor contract expires, but the above circumstances exist, it shall be postponed to the date when the above circumstances disappear. Eight. Non-competition clause and confidentiality clause Articles 23 and 24 of the Labor Contract Law stipulate the non-competition clause. 1. Specific Contents of Non-competition Clause An enterprise may agree with its employees on the personnel, scope, area and time limit for non-competition, but it shall not violate the provisions of laws and regulations. Note: Article 23 A person who is prohibited from competing must be a staff member who has the obligation of confidentiality. 2. How to determine the economic compensation and liquidated damages in the non-competition clause and how to pay them. Whether we should refer to the economic compensation standard stipulated in Article 47 of the Labor Contract Law. (The monthly wage stipulated in Article 47 shall be calculated according to the average wage of the laborer 12 months before the dissolution or termination of the labor contract, including hourly wage or piecework wage, as well as monetary income such as bonuses, allowances and subsidies; The average salary is calculated according to the number of months that people under 12 months actually work) 3. The necessary conditions for whether to pay economic compensation is a non-competition clause (1) are not agreed. Some unpaid enterprises only list the obligations that workers should abide by and the responsibilities after breach of contract, and say nothing about the obligations of enterprises. In this case, the clause should be deemed invalid. (2) It is agreed that the right of workers to choose their own jobs and the right to fair competition are restricted by the non-competition clause, and the enterprise should give some compensation to reflect the equality of rights and interests. If the enterprise fails to pay as agreed, it shall bear the liability for breach of contract, and the laborer has the right to refuse the obligations stipulated in the non-competition clause. (The right of defense is the first performance in contract law) (3) There is agreement and payment, but the economic compensation is obviously too low. Enterprises usually agree to a small amount of compensation. Whether it is obviously unfair, whether the laborer can exercise the right of cancellation, and whether the clause is invalid. 4. The relationship between non-competition clause and confidentiality clause is usually a mixture of non-competition clause and confidentiality clause, which is an integral part of the labor contract, and also becomes an intellectual property case because it involves keeping business secrets of enterprises. If there is a dispute, whether arbitration is needed varies from place to place. In practice, courts and arbitration institutions have accepted this. Enterprises need to choose a dispute resolution method: violating non-competition is a violation of contractual obligations, and infringing business secrets is a violation of workers' legal obligations. 5. How can an enterprise formulate a non-competition clause (1) as an annex to the contract to make the agreement more specific than the contract terms? (2) It is agreed that the laborer shall perform the obligation of non-competition within a period of no more than two years after the dissolution or termination of the labor contract. (3) Determine the standard of economic compensation according to the average wage of workers in the twelve months before the termination of the contract. (Not more than 2/3) (4) Make it clear that the economic compensation will be paid monthly after the contract is dissolved or terminated, and the employee will issue a receipt. (5) According to the standard of economic compensation, stipulate the standard of liquidated damages for workers (equal rights and justice). (6) It is clearly stipulated that if the enterprise fails to pay the economic compensation on time, whether the laborer should perform the reminder procedure first. If the enterprise still fails to pay within the dunning period, the laborer's non-competition obligation will be exempted. Seven. Clause of liquidated damages Article 25 of the Labor Contract Law stipulates that, except for the service period and liquidated damages stipulated in Article 22 and the liquidated damages stipulated in Article 23 of this law, the employer shall not agree with the laborer that the laborer shall bear the liquidated damages. How to use liquidated damages flexibly and avoid liquidated damages? First, liquidated damages are stipulated in the training service period agreement. If the employing unit provides special training expenses and conducts professional technical training for the workers, it may conclude an agreement with the workers 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 workers to pay shall not exceed the training expenses that should be shared for the unfinished part of the service period. The second is to stipulate liquidated damages in the non-competition agreement. The employer and the employee may agree in the labor contract to keep the employer's business secrets 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. The personnel with non-competition restrictions are limited to the senior managers, senior technicians and other personnel with confidentiality obligations of the employing unit. After the dissolution or termination of the labor contract, the non-competition period for the above-mentioned personnel to produce or operate similar products or engage in similar businesses in other employers that have competitive relations with their own units, or to independently start their own businesses to produce or operate similar products or engage in similar businesses shall not exceed two years.