Professional Articles | Employment risk of enterprises during peak recruitment periods
【Zhuhai lawyer, Zhuhai legal consultation, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm】
Every year in March, April in the recruitment market known as the golden three silver four, it can be seen that this period of time is the peak period of recruitment of various companies, the degree of personnel turnover is frequent, enterprises as the main body of employment, in this stage of recruitment on the one hand can supplement the loss of personnel after the year, on the other hand, can also reserve excellent talents for the development of the year.
However, in the face of the situation of "post-00 rectification market", enterprises often pay high economic compensation or compensation for various reasons, because in the market environment of rapid economic development, enterprises often pay attention to operation and ignore internal human resource compliance management, there are unreasonable rules and regulations, rough content, social security omission and underpayment and other situations, this article reminds enterprises through the following questions that enterprises need to risk in the recruitment stage, which can greatly reduce the risk of employment and avoid a large amount of compensation.
#1确定录用前对员工进行背景调查了吗
If the employee's ability does not match the position, and the employee's resume is found to be forged after investigation, can the enterprise terminate the employment contract between the two parties on this ground?
According to the Opinions of the Ministry of Human Resources and Social Security and the Supreme People's Court on Issues Concerning the Connection between Arbitration and Litigation of Labor and Personnel Disputes, Article 19 If an employer terminates a labor contract by fraudulently terminating a labor contract because the employee violates the principle of good faith by providing false academic certificates, personal resumes, and other basic information directly related to the conclusion of the labor contract, the labor and personnel dispute arbitration commission and the people's court shall not support the employee's claim for economic compensation or compensation for the termination of the labor contract.
According to the above provisions, it can be seen that if an employee fraudulently terminates the contract due to the provision of false academic certificates, personal resumes, etc., the company can terminate the labor contract on this ground, and there is no need to pay economic compensation or compensation.
However, when using this clause, it is necessary to pay attention to whether there is a causal relationship between the employee's falsified information and the employment, and if there is no causal relationship between the two parties and the employment relationship is terminated by using this clause, there is still a risk of paying compensation for illegal termination of the employment relationship.
#2招聘员工后, whether a written labor contract has been signed in a timely manner
According to the provisions of the Labor Contract Law, employees need to sign a written labor contract within one month after joining the company, otherwise the company needs to pay the employee double the difference in wages from the second month.
Legal basis:
Article 10 of the Labor Contract Law
To establish a labor relationship, a written labor contract shall be concluded.
If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment.
Article 82
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.
#3企业的规章制度制定程序. Whether the content complies with the law and whether it has passed
Is the democratic procedure made public to employees?
According to Article 4 of the Labor Contract Law, the formulation of rules and regulations of an enterprise shall be discussed by the workers' congress or all employees, and shall be publicized to the employees after they are formulated.
When an enterprise uses Article 39 of the Labor Contract Law to terminate a labor contract between the two parties on the grounds of "serious violation of rules and regulations", the implicit requirement is that the company's rules and regulations are formulated and publicized in accordance with the lawfulness and compliance of various processes.
Legal basis:
Article 4 of the Labor Contract Law
Employers shall establish and improve labor rules and regulations in accordance with the law to ensure that workers enjoy labor rights and fulfill labor obligations.
When formulating, revising or deciding on rules and regulations or major matters directly related to the vital interests of employees, such as labor remuneration, working hours, rest and vacation, labor safety and health, insurance and welfare, employee training, labor discipline, and labor quota management, the employer shall discuss with the workers' congress or all employees, put forward plans and opinions, and negotiate with the trade union or employee representatives on an equal footing.
In the process of implementing the rules and regulations and decisions on major matters, if the trade union or employees deem it inappropriate, they have the right to propose it to the employer and revise and improve it through consultation.
The employer shall publicize or inform the employee of the rules and regulations and decisions on major matters that directly affect the vital interests of the employee.
#4员工的试用期能否多次约定或随意延长
However, some companies will avoid the payment of social security and the length of service of employees by signing probationary contracts and extending the term of employment multiple times during the probationary period, which will also lead to employees claiming economic compensation or compensation after they are forced to leave their jobs.
(2023) Jing Min Zai No. 132 in which the company extended the term of use led to arbitration by the employee and demanded compensation from the company, and the case was heard by the labor arbitration, the basic court, the intermediate people's court and the high people's court, and finally determined that the company's second probation had damaged the legitimate rights of the employee, and the compensation should be paid according to the period that has been performed beyond the statutory probationary period based on the monthly salary of the probationary period in accordance with the law, so the agreement on the probationary period should also comply with the law when the enterprise recruits personnel.
Legal basis:
Article 19 of the Labor Contract Law
The probationary period shall not exceed one month if the term of the labor contract is more than three months but less than one year, the probationary period shall not exceed two months if the term of the labor contract is more than one year but less than three years, and the probationary period shall not exceed six months for the fixed-term and indefinite-term labor contracts of more than three years.
The same employer and the same employee can only agree on a probationary period once.
Article 83
If an employer violates the provisions of this Law by agreeing on a probationary period with an employee, the labor administrative department shall order it to make corrections, and if the probationary period has already been fulfilled, the employer shall pay compensation to the employee according to the period that has exceeded the statutory probationary period, based on the employee's monthly salary at the end of the probationary period.
#5企业在试用期内是否有明确的转正条件
If the employee is proved to be ineligible for employment during the probationary period, the enterprise may terminate the labor contract between the two parties in accordance with Article 39 of the Labor Contract Law, but how to prove that the employee does not meet the employment conditions requires the enterprise to formulate reasonable employment conditions according to the employee's position and the company's business in a timely manner after recruitment, so as to avoid the unilateral or subjective judgment of the enterprise after the end of the probationary period, which may lead to arbitration of the employee, and the enterprise will pay a large amount of compensation.
#6因为招聘了新员工随意给老员工调整工作岗位或
Is it okay to use this as a reason to force high-paid veteran employees to leave voluntarily?
According to the practical case, it can be known that whether the post adjustment is reasonable needs to be judged according to the following six aspects: 1. whether it complies with the provisions of the labor contract or the rules and regulations of the employer, 2. whether it is due to the objective needs of the employer's production and operation, 3. whether the employee's wages and other working conditions have been unfavorably changed and no necessary assistance or compensation measures are provided, 4. whether the employee is objectively qualified for the adjusted position, 5. whether there is discrimination or insult, 6. violation of the law, Administrative regulations and other provisions.
If the company's job transfer is based on these six aspects, then the employee who refuses to transfer the job cannot claim economic compensation or compensation, on the contrary, if the company's job transfer is discriminatory and insulting, and the old employee is forced to leave voluntarily, it may lead to high compensation.
The lawyer reminds you that there are many employment risks, recruitment needs to be cautious, and compliance should be paid attention to.
Lawyer introduction
Lawyer Wang Jin
A practicing lawyer of Beijing Jingshi (Shenzhen) Law Firm, he passed the National Legal Professional Qualification Examination in 2017 and entered the law firm, obtained a lawyer's practice certificate in 2019, and handled a large number of civil and commercial cases. Contract law, helping to deal with litigation cases of enterprise and individual creditor's rights and debts disputes, contract disputes; He also handles a large number of traffic accident disputes, marriage, family and inheritance, divorce and other cases, and has rich experience in handling cases.
In the course of her practice, lawyer Wang Jin focuses on the research of litigation cases, has profound legal theory and judicial practice experience, strictly abides by the professional ethics and practice discipline of lawyers, and adheres to the practice philosophy of integrity, prudence, diligence and efficiency.
Business Areas:
Labor Law, Contract Law, Traffic Accident Disputes, Marriage and Family and Inheritance