[Hot discussion: A woman was rejected for employment after being found to be pregnant during the physical examination
According to the Shanghai High Court, Ms. Yan received an employment notice from a company informing her that she had applied for the position of financial supervisor, and the notice required Ms. Yan to provide a report on the human chorionic gonadotropin (HCG), which is usually used to diagnose pregnancy. Ms. Yan found out that she was pregnant when she was required to take the test, so she told the truth. A few days later, the company suddenly informed Ms. Yan that the position had been cancelled due to the planned adjustment, and that the company was still posting job postings for the same position on other platforms.
After several failed communications, Ms. Yan sued the court for the company's infringement of the equal employment rights of workers and malicious cancellation of jobs, demanding compensation of more than 30,000 yuan. In the end, under the auspices of the court, the two parties reached a mediation agreement, and the company compensated Ms. Yan for related losses of more than 30,000 yuan.
The news has become a hot topic of discussion on the Internet, and there are many points worth discussing in HR, such as whether the employment notice is an "offer", how should the employment notice be written to reduce the risk of non-compliance, and if the candidate promises to join the company but does not join the company, can the company be held accountable?
In addition, the state prohibits workplace discrimination and prohibits the inclusion of unnecessary items in the physical examination for entry. What is the significance of the company's requirement for employee entry physical examination?
The teacher can elaborate from the above perspective, or choose another perspective. 】
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[Abstract: The first part of this paper deeply analyzes the nature and legal status of the employment notice from the legal and practical perspectives, discusses the writing strategies and risk avoidance methods, and the second part of this paper discusses the problem of workplace discrimination in the entry physical examination, and puts forward suggestions for avoiding legal risks. 】
1. The employment notice should not be written casually:
In the practice of human resource management, the employment letter is a formal invitation issued by the enterprise to the applicant, marking the imminent establishment of a formal employment relationship between the two parties. However, there are many legal and practical considerations behind this simple notice.
(1) The nature and legal status of the employment notice:
An offer letter, also commonly referred to as an "offer," is an official document issued by a business after it decides to hire a candidate. From a legal point of view, although an employment letter is not equivalent to an employment contract, it is legally binding to a certain extent. This is because, when the candidate accepts the offer and confirms the intention to join, a preliminary employment agreement is reached.
However, whether an offer constitutes a legal "offer" needs to be judged on a case-by-case basis. Generally speaking, if the offer clearly contains key information such as the job position, salary package, work location, and reporting time, and the candidate confirms this, then the letter is likely to be considered an offer. In this case, if the company withdraws the offer without reason, the applicant has the right to demand that the company bear the liability for contractual negligence.
It is important to note that an offer letter is not equivalent to a formal employment contract. An employment contract is the final legal document for the establishment of an employment relationship between the parties, which stipulates in detail the rights and obligations of both parties. Therefore, after the candidate is officially hired, both parties should sign an employment contract as soon as possible to clarify their respective rights and interests.
(2) Writing strategies and risk avoidance of employment notices
When writing an offer letter, businesses need to plan carefully to ensure clarity, legitimacy, and compliance with the content. Here are some key writing strategies and risk mitigation tips:
1. The content is clear and detailed:
The employment letter should contain key information such as the applicant's basic information, the position hired, salary, work location, and reporting time. In addition, it can also include a brief description of the probationary period, benefits package, job responsibilities, etc. This can help candidates better understand the position and the company, and reduce the cost of follow-up communication.
2. The terms are precise and have legal effect:
When writing an offer letter, HR should ensure that the language used is precise and avoid using vague or ambiguous wording. At the same time, the terms in the notice should have legal effect to ensure that the rights and interests of both parties are protected.
3. Set the validity period, confirmation mechanism and liability for breach of contract:
In order to reduce the risk, the offer letter should set a clear expiration date and require the candidate to confirm the intention to join within the specified time. If the candidate does not confirm or reject the offer within the validity period, the opportunity will be automatically forfeited. In addition, the notice should also clarify the responsibilities and consequences of breach of contract by both parties, so that they can be held accountable in accordance with the law in the event of a problem.
When writing the employment letter, HR also needs to pay special attention to complying with relevant laws and regulations, such as the Labor Contract Law, the Employment Promotion Law, etc., to ensure the legality and compliance of the notice. At the same time, in order to avoid possible disputes and misunderstandings, enterprises can add a dispute resolution clause to the notice to clarify the ways and means for both parties to resolve disputes in the event of a dispute.
(3) Ways to pursue accountability for candidates' failure to perform the contract
When a candidate commits to onboarding but fails to fulfill the contract, the company may face a reallocation of human resources and a loss of recruitment costs. In order to protect the legitimate rights and interests of enterprises, the following are some suggested ways to pursue responsibility:
1. Accountability according to the breach of contract clause in the employment notice:
If the liability and consequences for breach of contract are clearly set out in the offer letter, the company can hold the candidate accountable in accordance with these terms. This usually includes asking the candidate to pay liquidated damages or compensate for losses caused by the breach, etc.
2. Accountability through legal channels:
If the candidate refuses to be held liable for breach of contract, the company may choose to pursue liability through legal channels. This includes taking a lawsuit in court or applying for arbitration. During this process, companies should retain relevant evidence, such as employment letters, candidates' acknowledgments, communication records, etc., so as to provide support in the litigation or arbitration process.
3. Seek professional legal advice:
When dealing with the issue of non-performance of candidates, businesses can seek the advice and assistance of legal professionals. They can provide appropriate legal solutions and accountability strategies for businesses on a case-by-case basis.
It is worth noting that enterprises should comply with relevant laws, regulations and procedural requirements in the process of accountability to ensure that their actions are legal and compliant. At the same time, in order to avoid similar situations, enterprises should conduct sufficient background checks and communication confirmation before issuing an employment letter to reduce the risk of default by candidates.
Tips1: As a preliminary agreement between the enterprise and the applicant to establish an employment relationship, the employment letter has an important legal status and practical significance. Businesses should exercise caution when writing and issuing an offer letter to ensure clarity, legitimacy, and compliance. At the same time, in the case of the candidate's failure to perform the contract, the enterprise should understand and pursue responsibility in accordance with the relevant laws to protect its legitimate rights and interests.
Second, the entry physical examination items should be clear:
As an important part of employees' entry into the enterprise, the on-board physical examination is not only a routine process for enterprises to ensure the health of employees and ensure their ability to work, but also a necessary step to comply with relevant laws and regulations. However, in practice, the content and method of entry physical examination are often prone to controversy, especially when it comes to workplace discrimination. The following is an in-depth review of the medical examination and workplace discrimination.
(1) Definition of physical examination requirements and workplace discrimination
In Ms. Yan's case, the examination of HCG sparked a wide range of discussions. Behind this is the balance between the company's concern for the health of employees and respect for personal privacy. So, how to define whether the medical examination requirement constitutes workplace discrimination?
We need to be clear about what discrimination is in the workplace. According to the Labor Law of the People's Republic of China and relevant legal interpretations, workplace discrimination mainly refers to unfair treatment or unreasonable obstacles to specific groups such as gender, age, ethnicity, religious belief, and disability in recruitment, hiring, training, promotion, and salary. Therefore, when a company's medical examination requirements are targeted at a specific group, such as women, people with disabilities, etc., and such requirements are not necessary for the nature of the work, then such medical examination requirements may constitute workplace discrimination.
In Ms. Yan's case, the HCG examination was mainly for female employees and was not directly related to the nature of the work. Therefore, this medical examination requirement may be perceived as gender discrimination to a certain extent. Of course, the specific judgment also needs to be comprehensively analyzed in combination with the actual situation of the enterprise and the legal provisions.
(2) The true purpose and significance of the entry physical examination
The fundamental purpose of the entry physical examination is to ensure that the physical health of employees can meet the requirements of the job, and also to ensure the normal operation of the enterprise and the health and safety of employees. A reasonable onboarding medical examination can help companies screen out employees with potential health problems, so as to avoid accidents caused by health problems at work.
However, the more comprehensive the medical examination, the better. Excessive medical examinations not only increase costs for businesses, but may also violate employees' privacy rights. Therefore, when formulating entry physical examination items, enterprises should fully consider the actual needs of the job and avoid setting unnecessary physical examination items.
(3) Avoid legal risks in the physical examination
In order to avoid legal risks in the onboarding medical examination, enterprises should follow the following principles:
1. Principle of compliance: Enterprises should ensure that the content and method of entry physical examination meet the requirements of relevant laws and regulations. When formulating the entry physical examination program, the enterprise should consult with a legal professional or medical institution to ensure the legality and compliance of the physical examination program.
2. The principle of necessity: the enterprise should formulate the entry physical examination project according to the actual needs of the job. For those physical examination items that are not related to the nature of the work, enterprises should exclude them to avoid unnecessary legal risks.
3. Respect the principle of privacy: Enterprises should respect the privacy of employees and avoid involving employees' personal privacy information in the entry physical examination. For sensitive item inspections that must be carried out, enterprises should inform employees in advance and obtain their consent.
4. Anti-discrimination principle: Enterprises should avoid discriminatory requirements for a specific group when formulating entry physical examination requirements. Enterprises should ensure that all employees are treated fairly during the entry physical examination and are not discriminated against on the basis of gender, age, ethnicity, and other factors.
In order to reduce legal risks, businesses can also take the following measures:
1. Establish a sound entry physical examination system: Enterprises should formulate clear entry physical examination processes and standards to ensure that all employees are subject to the same standards for physical examination. At the same time, enterprises should also regularly review and update the entry physical examination system to adapt to changes in laws and regulations and the actual needs of enterprises.
2. Strengthen employee training: Enterprises should regularly train the staff responsible for entry physical examination to improve their legal awareness and professionalism. Through the training, the staff can more accurately understand and implement the on-board medical examination system, so as to avoid legal risks caused by improper operation.
3. Establish a complaint handling mechanism: Enterprises should establish an effective complaint handling mechanism to deal with employees' complaints and feedback on the entry physical examination in a timely manner. This can not only safeguard the legitimate rights and interests of employees, but also help enterprises find and correct problems in the entry physical examination in a timely manner.
Tips2: As an important part of the entry of employees into the enterprise, the entry physical examination requires the enterprise to fully consider the requirements of laws and regulations and the legitimate rights and interests of employees in the process of formulation and implementation. By following the principles of compliance, necessity, respect for privacy and anti-discrimination, as well as establishing a sound on-the-job physical examination system, strengthening employee training and establishing a complaint handling mechanism, enterprises can effectively avoid legal risks in the on-boarding physical examination and ensure the mutual interests of employees and enterprises.