preface:
This is a piece of advice for business and legal businesses.
It has been more than three years since the outbreak of the epidemic, during which time many small and medium-sized enterprises have experienced a stage of life and death.
At the same time, because of the opportunity to work as a corporate legal adviser, when talking with some small and medium-sized business owners, I learned about their pain points.
Although the specific reasons for the decline or even closure of small and medium-sized enterprises are different, there is still no lack of commonalities.
In general, this article will give analysis and suggestions from the two aspects of "risk" and "countermeasure".
One of the risks: labor costs
Labor costs are one of the important costs that drag down many small and medium-sized enterprises.
Labor costs here include both compensation costs during business downturns and cost of living subsidies during downtime.
Since according to the laws of the mainland, even during the period of suspension of work and production, enterprises cannot stop paying living expenses to employees.
Therefore, for enterprises, during the shutdown period, the cost of living subsidies that cannot be seen at a glance has become a very huge expenditure, especially in the case of a large number of employees.
Countermeasure 1: Rational use of the cost-of-living adjustment rules during the shutdown
Taking Shenzhen City as an example, the rules for paying living expenses during the shutdown are as follows:
Shenzhen Municipal Regulations on Wage Payment for Employees
Article 28 Where the Employer stops work or production due to reasons other than the employee, and does not exceed one wage payment period (up to 30 days), the Employer shall pay the wages in accordance with the normal working hours. If there is more than one wage payment cycle, the wages can be paid according to the standard newly agreed upon by the two parties according to the labor provided by the employee; If the employer does not arrange for the employee to work, it shall pay the employee's living expenses at a rate of not less than 80% of the local minimum wage, and the living expenses shall be paid until the enterprise resumes work, resumes production or terminates the labor relationship.
Therefore, with reference to the above legal rules, in Shenzhen, enterprises can pay the corresponding living expenses subsidy from the second month of suspension of work and production by multiplying by 20% of the local minimum wage.
In practice, an enterprise may first notify the period of suspension of work and production for more than one month, and then declare that the time for resuming production and operation shall be subject to further notice, so that on the one hand, the above legal rules can be applied, and on the other hand, the flexibility of the enterprise can be maintained.
Countermeasure 2: Resolutely, reasonably, and appropriately reduce personnel
It should be pointed out that the "personnel reduction" here does not only refer to unilateral layoffs or termination of labor contracts, but includes but is not limited to: rescission by consensus, legal rescission, illegal rescission, etc.
(1) Termination by consensus: The termination of the labor contract is proposed by the enterprise party, and then the two parties reach a consensus through consultation, so the labor contract is finally terminated.
In this case, the enterprise can only pay N, which is the standard of conventional economic compensation.
(2) Legal termination: During the epidemic period, if an employee seriously violates labor discipline or seriously violates the rules and regulations of the enterprise, the enterprise can carry out legal unilateral layoffs in accordance with the rules of the Labor Law and the Labor Contract Law.
At this time, the enterprise does not need to pay any economic compensation or compensation.
Of course, in the specific application process, enterprises should assess their own evidence and legal risks, and if necessary, it is recommended to consult a lawyer.
(3) Illegal termination: Under normal circumstances, enterprises and lawyers often resist guiding enterprises to terminate labor contracts illegally, but from an economic and commercial point of view, this is a cost measurement problem.
For example, if an employee has a particularly short onboarding time, the cost of 2N may be lower than the cost of issuing living expenses for continuous shutdown.
Risk two: leasing costs
Leasing costs are also one of the most uncomfortable costs for most smes during the pandemic.
Like many renters, businesses are sometimes in a state of "feeling like they're working for their landlord."
Therefore, it is also of great significance to analyze the costs in this regard and give some practical suggestions.
Countermeasure 1: Reduce the leased area and transform to an online office
Is a company suitable for online office? This question, every entrepreneur will have their own thinking.
Perhaps many entrepreneurs will say that working online can lead to problems that cannot be carried out effectively.
However, there may be mainly a problem of assessment method and work style design here.
Objectively speaking, in the process of changing to online office, enterprises will definitely encounter many difficult barriers. However, because the problem solving itself has value, the solution is still worth taking the time to study and think about.
For example, not long ago, Ctrip headquarters was experimenting with a flexible combination of online office (home office) combined with offline office.
In Ctrip's analysis report, after a period of adaptation to working from home, it did not reduce the efficiency of working in the office.
Therefore, many entrepreneurs may wish to think about whether they need to introduce some project management tools for online office to assess and distribute tasks to employees without reducing efficiency.
Countermeasure 2: Identify office buildings with low prices
Taking Shenzhen As an example, the price difference between office buildings in different areas of Shenzhen is particularly large, such as Nanshan and Luohu, the same convenient transportation situation, in this case, the rent is very different.
Of course, for many enterprises, choosing an office location is not only an office location, but also a strategic location for resources.
In this case, it may be more difficult to move away from the original location.
But for many businesses, it may really be possible to consider whether the face value of regional office locations is really so important.
Let the enterprise survive first, is the most important strategy.
Risk number three: the disruption of cash flow
In the process of getting along with many entrepreneurs, I have found that the so-called difficult problems or difficulties encountered by many enterprises are sometimes not because of their own reasons, but because the payment is owed by the supplier, and then put themselves into a crisis, such as triangular debt and the like.
The crisis here is one of the typical cases of a cash flow crisis.
Another manifestation of a cash flow crisis is the disruption of cash flow caused by business instability.
Countermeasure 1: React quickly and use asset freezing to take the lead in litigation
As a practicing lawyer, I find an interesting phenomenon when I talk to many entrepreneurs.
That is: many enterprises in the event of disputes, the need to collect money, the habit of waiting and seeing for a period of time, first to see if there are other peers to sue the target defendant first, hoping to see if the prosecution is effective or not.
By the time the final verdict came out, it might have been a year and a half, and at this time, I found a lawyer and hoped that the lawyer would intervene with the law.
In fact, such a treatment strategy is unscientific.
Taking a contract dispute in which a supplier in Guangzhou, which I once represented, sued a head platform enterprise in Shenzhen as an example, in the end, this supplier was the only one among dozens of plaintiffs who got the money back, and the remaining plaintiffs, because the defendants had no money to deduct, entered the final ending, and even finally some plaintiffs hoped to file bankruptcy liquidation procedures to deal with the case.
The huge cost at this time is undoubtedly the biggest negation of the hesitation in the early stage.
Of course, we must admit that not all lawsuits will yield good results.
However, the most important thing in litigation is to take the lead.
In the above case, the assets of the defendant were frozen in the first place in the early stage, which is an important guarantee for the smooth execution of the payment.
In addition, litigation that has a first-mover advantage will also enter the enforcement process more quickly than other plaintiffs in the process.
At this time, there is a higher chance of avoiding the two embarrassing states of ending the enforcement procedure and entering the bankruptcy liquidation and distribution procedure.
Countermeasure 2: Accurately design and pursue the responsible objects, and expand the scope of responsible subjects
As a practicing lawyer, when talking to entrepreneurs, entrepreneurs often consult with lawyers about the subject of responsibility.
For example: "Can the opposing shareholder be held accountable?" "In what way can the liability of the opposing shareholder be held accountable?" ”
In general, there are the following ideas:
Idea 1: Contract idea. During the drafting process of the contract, it is possible to design and embed clauses relating to the joint and several liability of the shareholders.
Idea 2: Statutory thinking. In this case, the Company Law's system of mixing the personalities of shareholders can be used to investigate the responsibility of shareholders to the enterprise in combination with the evidence. Specifically, it is divided into two situations: one-person limited company and conventional company.
Why is it so important to hold shareholders accountable? This is related to the mainland's business practice style.
Many companies, ostensibly in debt and losses, are actually earned or sucked out by shareholders. Specific manifestations are: direct withdrawal from the company without statutory dividend procedures; shareholders use private accounts to process the company's receivables.
In a large number of small and medium-sized enterprises with the characteristics of "one word hall", the situations listed above are even more common.
Then, based on these circumstances, penetrating the surface of the enterprise and deeply investigating the responsibility of individual shareholders has become a very important litigation target.