My Live, welcome to hear: I heard that you want to enter the consulting industry?
In the moon cake incident before the Mid-Autumn Festival, there was no shortage of intimidating complaints from the company, but the attitude of many small partners became: I am an ordinary employee, how can I fight with the big listed companies? ? Is that true? Pick a few old links, and everyone appreciates:Shanghai: labor arbitration laborers have won over 80%
I don't know about the labor contract law introduced in 2008. I will introduce you to the background:
- The Labor Contract Law promulgated in 2008 has been controversial in the human resources industry. Because it protects the interests of employees too much, the cost of employing the employer is too high, but it will affect the economy and employment.
- Before the introduction of the Labor Contract Law, many enterprises in the human resources industry were communicating with the legal experts of the Ministry of Social Security who led the law (not yet merged with the Human Resources Department), hoping that the regulations would give enterprises more flexibility. However, the egg suddenly broke out in a black coal kiln event, and the public opinion was fierce. The final labor contract law was also biased towards employees;
- In the practice of dispute arbitration, especially in the first few years, the penalty is very biased towards employees. Even if the company has a well-regulated HR and a human resources service organization with legal experts, even if it is occupied, the lawsuit is also a loss of ten wars and nine losses (I have A friend is such a role. Several lawsuits are 100% ruling, but they still can’t win because the labor arbitration department has a KPI that is the mediation rate . The lawsuit has been beaten and the glorious people’s government Mediation, no contradiction, how proud - the judge of the arbitration thinks that the enterprise is a strong party. In order to prevent the employees from making excessive actions, I will help you mediate whether you are still negotiating with the employees... The company looks awkward: this lawsuit I will win)
- I saw a saying: "Alibaba is definitely not illegal, and people have a legal department." In fact, the most understandable labor law in the enterprise is HR, especially the employee relations department. The law is also divided into three or six, etc. Why can you study business law and study the labor law? The law must not only understand the literal meaning of the legal provisions, but more importantly, through a field labor arbitration lawsuit, to determine the routines and basis for the judges to impose penalties.
According to my accumulated accumulation of human resources industry for a long time, I have come up with some labor law provisions that are beneficial to the working people, but most easily overlooked by the workplace for your reference:
1. Can you be fired in violation of company regulations?
Article 39 If a worker has one of the following circumstances, the employer may terminate the labor contract:
- During the trial period, it is proved that it does not meet the conditions of employment;
- Serious violation of the rules and regulations of the employer;
- Serious dereliction of duty, malpractice, causing serious damage to the employer;
- At the same time, the laborer establishes a labor relationship with other employers, which has a serious impact on the completion of the work tasks of the unit, or is refused to be corrected by the employer;
- The labor contract is invalid due to the circumstances stipulated in the first paragraph of Article 26, paragraph 1 of this Law;
- Being investigated for criminal responsibility according to law.
Article 26 The following labor contracts are invalid or partially invalid:
(1) by means of fraud, coercion or the danger of taking the person, so that the other party enters into or changes the labor contract in violation of the true meaning;
The above six clauses are the only ones that can unilaterally terminate the labor contract. Under normal circumstances, it is more difficult for a company to unilaterally cancel the employee's labor contract than to recite Lincoln's Gettysburg speech because the burden of proof is on the company side. Take the first trial period as an example: You recruited a programmer. When you enter the company, you find that your aunt doesn’t program this product at all. You have to let him go immediately, but people are more personal and want to go to court. go.
When I arrived at the arbitral tribunal, the judge asked why it was not in conformity? You said that he doesn't understand Java. The staff said that I would LOGO language.
The judge asked: How do you prove that Java is necessary for this position?
You: Big Brother, I am recruiting a Java engineer!
Judge: Oh, then have you provided reasonable training? Is there a chance to change jobs? (Almost all of this is provided, employees have to go through the trial period)
Judge: You bring it back, train well, after all, there is a foundation for the LOGO language.
Say "serious violation of the rules and regulations of the employer." Sounds good, who is not obedient, I did this unhappy thing, I will write this article into the rules and regulations, dying! The result reached the arbitral tribunal:
You: He violated the company's integrity regulations and used the script to grab a lot of moon cakes! I am reasonable to dismiss his contract!
Judge: Oh, the company regulations show me, hey, didn't you say that you can't use the script to grab moon cakes?
You: Judge, use the script to grab moon cakes. Doesn't this involve integrity?
Employee: Judge, I...
Judge: The objection is valid. I don't care, I have to see the words "can't use the script to grab mooncakes" in the regulations.
You: ...I am making up a line now?
Judge: Yes, but it needs approval from the guild, employee signature confirmation
You: I am driving him away, he should not sign it... In addition, what is the guild?
Judge: Signature cannot be less
You: So now I add a "No script to grab the moon cake" in the company's rules and regulations, so that all employees will sign and confirm when they join the company, and let the guild approve it. I can open him when someone uses the script to grab the moon cake. Except it.
Judge: Still not, how do you prove to be a "serious" violation? Do you have a warning letter to the staff, and what warnings are given? What is the second warning? In general, the third time can be considered a serious violation, then it can be fired.
You: What, let me be so purely worthy of being smashed three times to be fired?
re-emergence of the above two arbitrage scenes is for reference only. After all, the interpretation of the implementation rules of the Labor Contract Law in different regions is slightly different. The different judges of the arbitral tribunal will have different understandings of the same case.
To add a note, the employee handbook (company rules and regulations) is a good thing. You must look carefully before you enter the job. Don't look at it and don't look at it. You have no regrets when you sign it.
I have never seen anything that has not been signed. I don't recognize it.
Article 4 Employers shall establish and improve labor rules and regulations in accordance with the law to ensure that laborers enjoy labor rights and perform labor obligations.
When the employer formulates, modifies or decides the rules and regulations or major matters concerning labor remuneration, working hours, rest and vacation, labor safety and health, insurance benefits, employee training, labor discipline, and labor quota management, which directly affect the vital interests of the workers, After discussion by the employee representative assembly or all employees, the plan and opinions shall be proposed and negotiated with the trade union or employee representatives on an equal footing.
In the process of implementing rules and regulations and major matters, if the trade union or employee considers it inappropriate, it has the right to propose to the employer and to modify it through consultation.
The employer shall decide on the rules and regulations and major matters directly related to the immediate interests of the workers, or inform the workers .
2. The company's N+1 compensation and my cancellation, should I accept?
In general, N+1 compensation is reasonable (N is the number of years of work). The Labor Contract Law provides:
Article 47 Economic compensation shall be paid to the laborer according to the standard of the laborer's work in the unit and paying one month's salary every year. If the period of less than six months is less than one year, it shall be calculated on a one-year basis; if it is less than six months, the economic compensation for paying the worker for half a month's salaryCoupled with a one-month notice or one-month compensation, in general, employees can take the money to find the next home, after all, talented young employees do not have to worry too much about finding a job. It is already very sincere to the SMEs to take advantage of the company’s consumption and damage to others.
However, there are exceptions. For example, the reason why the company wants to terminate your labor relationship does not convince you, or there are other more embarrassing things (overtime paying the social security ratio, etc.), then you can talk, negotiate, and you are satisfied. If you agree, you will count. If you disagree, you will negotiate. The law is to support you:
Article 48 If an employer violates the provisions of this Law to terminate or terminate a labor contract, and the laborer requests to continue to perform the labor contract, the employer shall continue to perform ; if the employee does not require to continue to perform the labor contract or the labor contract cannot continue to be performed, the employer shall pay compensation in accordance with the provisions of Article 87,
Article 87 of the employer terminates the violation of this Law or termination of the labor contract shall be in accordance with the provisions of Article 47 of this Law financial compensation of twice the standard to Laborer pays compensation
The more disgusting approach is to "continue to perform labor relations." Brother is so dedicated to dedication (detrimental to others); the provisions of Article 87 are basically the upper limit of the enterprise (unless you still want to be a senior official, the company hopes you don't want to media BB , keep silent, etc., such as HP's compensation for Hurd's tens of millions of compensation. n+1 to 2n, in general, is the scope of compensation between employees and companies .
The experienced HR of big companies are all convinced by people + emotional people. Specifically, you see that the law stipulates that you are paying so much, but we will get together and pay more for you. You will give the agreement Sign it.
3. The contract expires, the company does not renew my contract, but also lose money.
Many companies, especially those in Tuen Mun, are hostile to non-fixed-term labor contracts. According to the provisions of the Labor Law, when the company renews its contract for the third time, it will automatically become a non-fixed-term contract after the company has worked for ten years. It is difficult to basically cancel the contract afterwards. Therefore, some companies are reluctant to renew non-core team employees. Anyway, such people can find and change in the market.
Many people believe that the company that contracts expires will not renew its contract with itself and will not be compensated. This is not understood! Article 46 of the Labor Contract Law is particularly clear (recommended to read carefully):
Article 46 In any of the following circumstances, the employer shall pay economic compensation to the laborer : (5) Except that the employer maintains or raises the conditions stipulated in the labor contract to renew the labor contract, and the laborer does not agree to renew the contract. In addition, the fixed term labor contract shall be terminated in accordance with the first paragraph of Article 44 of this Law (ie, the expiration of the labor contract);
Of course, because it is expired, so do not lose n+1, but should compensate n (working years).
4. Pregnant female employees, how to prevent the company's sinister tricks?
Many pregnant female employees have had the experience of being bullied. The company suddenly has one less work, which is definitely a nail in the eyes of leaders who have a small heart. But don't be afraid, the labor contract law protects you.
The right not to be dismissed .
Once pregnant, regardless of the probation period, the company has almost no reason to dismiss you (Article 39 still works, but in practice, pregnant female employees as long as they do not violate the law, the company forcibly said that you violated the company rules to terminate the contract is almost a must-have lawsuit) , up to three (pregnancy, childbirth and breast-feeding) end. The contract has to expire and it must continue to be raised.
Of course, the company may want to use a liquidated damages to persuade. My suggestion is not to agree, because if you are pregnant, you will lose a lot of income if you don't have a job (because the maternity allowance is linked to the company's average salary, and the month of the unemployed woman. The maternity allowance is calculated according to the minimum standards set by the Municipal Human Resources and Social Security Bureau , unless the money is outrageously high...
Article 42 If a worker has one of the following circumstances, the employer may not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law:
(1) The laborer engaged in occupational disease hazards has not left Pre-employment occupational health examination, or suspected occupational disease patient during diagnosis or medical observation;
(2) In the unit suffering from occupational disease or
injury due to work and confirmed loss or partial loss of labor ability; (3) sick or non-work injuries within the prescribed period of medical treatment;
(d) of female workers during pregnancy, childbirth, breast-feeding ;
(v) continuous service in the unit 15 years and less than five years away from his legal retirement age;
(vi Other circumstances as stipulated by laws and administrative regulations.
Article 45 If the labor contract expires and there is one of the circumstances as stipulated in Article 42 of this Law, the labor contract shall be renewed until the corresponding situation disappears.
The right to not change the content of the work
First, the labor contract must contain: the work content and the work place. Enterprises have no right to unilaterally change employees, change jobs, and reduce basic wages. Labor hours may not be extended during pregnancy, and it is generally not allowed to engage in night work. If it is not qualified for the original labor, it should reduce the amount of labor or arrange other labor.
Article 35 The employer and the employee may change the content agreed in the labor contract by consensus. Labour contracts should be changed in writing
Production check work
In the sixth paragraph of Article 6 of the Special Provisions on Labor Protection for Female Employees in 2012, pregnant women workers are required to perform prenatal examinations during working hours, and the time required is counted in working hours.
Special Provisions on Labor Protection for Female Employees
5. What should I do if the company is playing with yin and wants to leave me?
Some leaders are really a headache. I don’t want to ruin my body, it’s not good to affect my child. So, go to the hospital and tell the doctor that you have a headache (the fact is a headache). Open a long sick leave order (you should go to make it up once a month), keep driving until The end of the third phase...
It is pointed out that it is not easy to open sick leave until the end of the third period, and the enterprise has the right to take the staff to the hospital for review.
In fact, my experience in Shanghai is a fake strip once a month during pregnancy, and a fake strip for 30 days.
As long as the fake article can be opened, I have not seen the enterprise HR with the staff to go to the hospital for review, the operability is not high cost performance is not high, HR is not idle.
In summary, only the leader who has entered the water will offend the pregnant female employee.
Supplementary explanation: The above methods are applicable to more foreign-funded enterprises and large-scale Chinese-funded enterprises. If the industry is not a very profitable small and medium-sized enterprise, the willingness to N+1 is a conscience employer. If there is a local triad background, it is important to escape.
Supplementary Note 2: I hope that all the workplace partners have the labor law. It is not that they must make a v., find opportunities and a company to sue, but they
have a well-founded and negotiated law and business
In fact, most reliable HR knows which behaviors are illegal and which are legal.
Just under the pressure of the boss's cost saving, to fool employees, if you are clearing the labor law, HR will naturally talk to you in accordance with the law (in fact, HR generally has more will than the law stipulates, on the one hand The picture is clean, on the one hand, the money is the company after all, in case of a madman leaving the post and staring at the HR to retaliate, it will not be able to draw).
Supplementary Note 3: Some friends are embarrassed by yourself, that is your freedom. But what do you mean by pointing the way to the Internet? I have repeatedly said that in order to maintain stability, in order to maintain the rate of mediation, sacrificing corporate interests is not twice, and there are already HR in the comments. Show up.
China's legal environment is not good (labor arbitration is not a good thing for maintaining stability and biasing employees), but it is not only the government that wants to back the pot, but also everyone who has given up their rights to defend themselves and concentrate on the "law of law uselessness". In short, if you don't believe in law, then the law can't protect you.
Supplementary Note 4: A lot of people are asking questions about 996 in the comment area. This is more difficult. Experienced companies will use the overtime application system (which will be written in the employee handbook to allow you to sign and confirm when you enter the job). Only after applying for overtime leadership approves the company. If the company does not have a system, employees can pay attention to collecting overtime materials, such as leadership or HR mail, and even recording materials. Then report it! Do you not report, what does it mean on the Internet?
Article 31 Employers shall strictly enforce labor quota standards and shall not force or disguise forced laborers to work overtime. If the employer arranges overtime work, it shall pay overtime to the laborer in accordance with relevant state regulations.
Article 74 The labor administrative department of the local people's government at or above the county level shall supervise and inspect the following implementation of the labor contract system according to law:
(4) The employer abides by the state's regulations on working hours and rest and vacation of workers ;
Article 85 If an employer has one of the following circumstances, the labor administrative department shall order the payment of labor remuneration, overtime pay or economic compensation within a time limit; if the labor remuneration is lower than the local minimum wage standard, the difference shall be paid; The employer is ordered to pay compensation to the workers according to the standard of 50% or more of the amount payable:
(1) failing to pay the labor remuneration of the laborer in full and in time in accordance with the provisions of the labor contract or the state regulations;
(2) Paying the wages of the workers below the local minimum wage;
(3) Arranging overtime work without paying overtime pay ;
(4) Dissolving or terminating the labor contract, and failing to pay the economic compensation to the laborer in accordance with this Regulation.
Supplementary Note 5 (Endless), is labor arbitration included in the background investigation? I just asked HR partners that background checks generally only collect criminal records, and arbitration is usually not in scope. Moreover, you are not the defendant. You are the plaintiffs.
Supplementary Note 6: I don’t think this is so popular, there are many questions in the comments. However, I am not a legal version of the meat version of the pro, and there are related issues. Baidu then searched the labor contract law. I don’t like it very much. Be careful if I don’t reply.
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(The cover picture is from Shanghai Labor Law Consulting Network )