In the era of rapid development in the 21st century, labor relations and the protection of employees' rights and interests have become an indispensable part of social and economic development.
In this regard, the Supreme People's Court of China recently publicly solicited opinions on the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (II) (Draft for Comments) on its official account.
Although the document is only a draft for comments, it sets out a number of new labor arbitration standards that deserve our close attention.
Because the employee has not signed a labor contract
Double wages are not supported
First of all, the Consultation Paper clarifies that if an employer has not signed a written employment contract with an employee, it will no longer support the payment of double wages.
Some people may wonder why an employer does not need to pay double wages to an employee without signing an employment contract.
In fact, Article 82 of the Labor Contract Law clearly stipulates the relevant handling mechanism: 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 pay the employee twice the monthly wage.
However, if the employment contract is not signed due to force majeure, the employee's own reasons or other circumstances prescribed by law, the employer is not required to pay double the salary.
Failure to pay social security in accordance with the law
Labor demands for economic compensation should be supported
If the employer fails to pay social security in accordance with the law, the employee can claim economic compensation.
According to the Labor Contract Law, it is the legal duty of the employer to pay social security premiums, and in case of violation, the employee can immediately activate the right to terminate the employment contract and be entitled to financial compensation.
The promulgation of this provision clarifies that although the employee and the employer may agree not to pay social insurance, in the event of an economic dispute, the people's court should support the employee's request, so that the employer cannot rely on the "mutual agreement" method to evade liability.
How to define "failure to pay in accordance with the law"
However, we also need to pay attention to the fact that the criteria for "failure to pay fees in accordance with the law" are not easy to identify. For example, the Social Insurance Law clarifies that an employer should register its employees with the social insurance administration within 30 days of its establishment.
However, in practice, the definition of "failure to pay fees in accordance with the law" is not so clear. For example, some businesses may not have registered for social insurance, or have not registered their employees for social insurance.
Or some employers only participate in part of the social insurance in order to reduce costs, resulting in a lack of insurance, which will also lead to the result of "failure to pay according to law".
For these cases, employees have the right to resign and apply for financial compensation.
Equity incentives belong to labor remuneration
Labor arbitration can be applied
Another common and high-profile issue in labor disputes is equity incentives. Although equity incentives are widely recognized as an effective incentive mechanism for employees, there has been debate as whether they should be regarded as labor compensation.
The Consultation Paper specifically stipulates that equity incentives should be regarded as labor remuneration, which is essentially no different from other remuneration methods such as wages and bonuses.
This means that disputes between employees and employers arising from equity incentives can be resolved through labor dispute arbitration.
The promulgation of these new regulations shows that the mainland attaches great importance to the rights and interests of workers, whether it is the signing of contracts, social security contributions, or the definition of equity incentives, all of which reflect the concept of people-oriented and the spirit of the rule of law.
However, the introduction of the policy is only the first step, and the focus is on how to put it in place and make it really work.
For HR and employees, being familiar with and complying with these new labor arbitration standards can not only improve their legal literacy and protect their rights and interests, but also bring stable and orderly development to the enterprise and society.
After all, in this era of rapid change, legal and policy changes are like a beacon that leads us to find a balance in complex labor relations and ensure social justice and fairness.
In this regard, we should remain sensitive and adaptable to ensure that our rights and interests are fully protected.