Graduation is imminent, out of school
Graduates are about to take their first jobs
After a fierce school recruitment
When an offer is received
Are you not thinking about it
How do you spend your first salary?
Or do you want to be financially independent?
Stop——
Don't rush to imagine the future
Let's take a look at your communication with the employer first
Have you ever encountered any of the following scenarios?
Scenario 1
The employer is silent about the employment contract
Scenario two
The employer agrees on a probationary period in a "fancy" manner
Scenario three
Asking for unreasonable training fees
If you encounter any of the above three situations
I don't know what to do
Don't panic!
京小槌教你如何签订心动的offer
1. Sign the labor contract in a timely manner, and do not sign other agreements hastily
An employment contract is a written agreement between an employer and an employee that establishes the labor relationship and clarifies the rights and obligations of both parties through equal consultation, and plays a pivotal role in the handling of labor dispute cases.
In cases involving the signing of labor contracts, the employment rights and interests of graduates may be infringed mainly in the following three situations:
1. Failure to conclude a labor contract in a timely manner
Some employers delay or refuse to sign labor contracts for various reasons, and a considerable number of graduates have a misunderstanding of the legal nature of employment agreements, mistakenly believing that there is no need to sign labor contracts after signing employment agreements.
Jing Xiao Hammer Interpretation Law
According to Article 10 of the Labor Contract Law of the People's Republic of China (hereinafter referred to as the "Labor Contract Law"), a written labor contract shall be concluded to establish an employment relationship. 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.
The employment agreement itself does not stipulate the specific rights and obligations to be fulfilled by the employer and the employee, and cannot replace the employment contract. If the labor contract is not signed in time after entry, it will be difficult for the employee to obtain due labor protection for his or her work, and the two parties are prone to disputes over many issues such as job position, length of service, salary, social insurance, etc., which is not conducive to the stability of graduate employment.
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 salary in accordance with Article 82 of the Labor Contract Law, and conclude a written labor contract with the employee.
If the employer and the employee fail to conclude a written labor contract within one month from the date of employment in accordance with the law after the establishment of the employment relationship, and after a certain period of time after the existence of the labor relationship, the employer and the employee shall be deemed to have reached an agreement between the employer and the employee when signing the labor contract to the date of actual employment, and the employee's claim for double wages may not be supported by the people's court. However, unless the employee has evidence to prove that the replacement of the labor contract is not his true intention. It should be noted that if the employer and the employee have signed a labor contract but have not signed the labor contract on the date of actual employment, the people's court may support the employee's claim of double wages if the employee claims double the salary without the labor contract.
2. Sign agreements on cooperation, partnership, labor services, etc., to avoid labor relations
Some employers take advantage of the graduates' lack of social experience and weak legal awareness to sign agreements with graduates on equal civil subjects such as cooperation, partnership, and labor services, but stipulate in the agreement that the graduates shall abide by rules and regulations, accept attendance management, pay wages on a monthly basis, and other terms that clearly have the characteristics of labor legal relations; The application of laws and regulations, but the actual employment management of graduates in accordance with labor relations.
Jing Xiao Hammer Interpretation Law
The nature of the contract should be determined according to the legal relationship involved in the content of the contract, that is, the rights and obligations established by the parties to the contract. The relationship formed between the two parties in the course of performing the contract conforms to the dual characteristics of personality subordination and economic subordination in the labor contract, and the cooperation agreement signed by the two parties can be regarded as a written labor contract. Although there are some necessary clauses, it does not affect the terms and effects of the agreement, and can still play a role in fixing the rights and obligations of both parties in the employment relationship.
3. Denial of employment relationship on the basis of an internship agreement
Some employers sign a separate internship agreement with the graduates who have obtained the graduation certificate, stipulating the internship period, and agreeing to sign a labor contract according to the situation after passing the inspection, and the two parties have a dispute over the time when the employment relationship is established.
Jing Xiao Hammer Interpretation Law
For a student who is about to graduate, if he or she signs an internship agreement with the employer for the purpose of seeking employment opportunities and facilitating employment after graduation, the employer is aware of the situation that the college student is about to graduate, the student has provided continuous and uninterrupted labor to the employer, and the employer has also implemented labor management and paid labor remuneration to the student, it may be deemed that an employment relationship has been constituted. The employment relationship between the two parties shall be established from the date of conclusion of the internship agreement.
Legal Tips:
According to Article 17 of the Labor Contract Law, a labor contract shall contain the following provisions: (1) the name, address and legal representative or principal person in charge of the employer, (2) the name, address and resident ID card or other valid identification number of the employee, (3) the term of the labor contract, (4) the content and place of work, (5) working hours, rest and vacation, (6) labor remuneration, (7) social insurance, (8) labor protection, working conditions and protection against occupational hazards, (9) laws, Other matters that shall be included in the labor contract as stipulated by the regulations. In addition to the necessary clauses stipulated in the preceding paragraph, the employer and the employee may agree on other matters such as probationary period, training, confidentiality, supplementary insurance and welfare benefits.
2. Keep in mind the statutory period of the probationary period and do not compromise with unreasonable extensions
The probationary period is an inspection period agreed between the employer and the employee for mutual understanding and selection, and its purpose is to give both parties to the employment relationship an opportunity to further examine each other.
In labor dispute cases involving the probationary period, in addition to the fact that the agreed probationary period exceeds the statutory probationary period, there are also the following three situations:
1. The agreed probationary period exceeds the statutory period and the wage standard before and after the employee's regularization is the same
If the probationary period illegally agreed upon in the interpretation of the law has been fulfilled, compensation shall be paid even if the probationary period is consistent with the wage standard after the regularization. If the employer has already fulfilled the probationary period illegally agreed, the employer shall pay compensation to the employee according to the period that has been performed beyond the statutory probationary period, based on the employee's monthly salary at the end of the probationary period.
2. Replace the internship period with a probationary period
When an employer claims that the company has illegally agreed on a probationary period, the employer claims that it has not agreed on a probationary period with the employee on the grounds that the probationary period is not equal to the probationary period, and therefore does not need to bear the legal liability for illegally agreeing on the probationary period.
Jing Xiao Hammer Interpretation Law
After the implementation of "supply and demand meeting and two-way choice" in the employment of graduates, enterprises that implement independent career selection and two-way selection no longer meet the conditions for applying the probationary period. If the employer lowers the labor standard in disguised form and harms the rights and interests of the employee by agreeing on the probationary period, it shall be deemed to have violated the provisions of the Labor Contract Law on the probationary period and shall bear the corresponding legal consequences, that is, it shall make up the wage difference during the illegally agreed probationary period and pay compensation for the illegally agreed probationary period.
3. "Renew" the probationary period
Some employers extend the probationary period on the grounds that the employee has not completed the work tasks during the probationary period after the expiration of the probationary period.
Jing Xiao Hammer Interpretation Law
The same employer and the same employee can only agree on a probationary period once. Even if the employer and the employee agree to extend the probationary period through negotiation, and the extended probationary period does not exceed the statutory maximum probationary period, the act of extending the probationary period is already a second agreed probationary period, which violates the provision that the same employer and the same employee can only agree on a probationary period once, so the act is illegal. It should be noted that the phrase "exceeding the statutory probationary period" in Article 83 of the Labor Contract Law is not "exceeding the statutory maximum probationary period", and the act of agreeing on the probationary period for the second time is the same as exceeding the statutory maximum probationary period, and compensation for the illegally agreed probationary period should be paid.
Legal Tips:
1. According to 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 labor contract with a fixed term of more than three years and an indefinite term.
The same employer and the same employee can only agree on a probationary period once.
Where a labor contract is for the completion of a certain work task or where the term of the labor contract is less than three months, a probationary period must not be stipulated.
The probationary period is included in the term of the employment contract. If the labor contract only stipulates a probationary period, the probationary period shall not be established, and the period shall be the term of the labor contract.
2. According to Article 83 of the Labor Contract Law, 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.
3. Calmly analyze the rationality of training and do not fall into the trap of training fees
For graduates who have just joined the company, employers usually arrange induction training, pre-job training and other courses to assist graduates to familiarize themselves with the company's management system, job content, work process, etc. as soon as possible. For positions with special technical requirements, the employer will also arrange special technical training for them to improve their technical level. Some employers require employees to bear unreasonable training fees, which is mainly manifested in the unified arrangement of new employees, mainly for training courses with regular, basic and general characteristics, mainly to introduce the enterprise structure, corporate culture, enterprise management system and related business, etc., and stipulate that the employees shall bear the training fees. In the name of training fees, some employers also require employees to return the wages and remuneration obtained during the special training period based on their labor efforts, or stipulate that the training fees borne by the employees exceed the statutory scope.
Jing Xiao Hammer Interpretation Law
According to Articles 3 and 68 of the Labor Law of the People's Republic of China (hereinafter referred to as the "Labor Law"), workers have the right to receive vocational skills training, and employers shall establish a vocational training system. For new employees, the employer has the responsibility to provide necessary vocational training so that the new employees have the basic qualities and basic skills to engage in the labor position, so that they can be qualified for the job they are about to take up their own jobs. For basic training and collective training in which the training position is routine and the training content is based on general business knowledge and practical operation ability, etc., which is a situation in which the employer fulfills its statutory obligations, the training expenses shall be borne by the employer, and the employee shall not be agreed to bear the training fees.
For special technical training, it is mainly arranged by the employer independently or actively arranged based on policy regulations, industry characteristics, etc., with the aim of improving the professional skills of workers. This kind of training is not only conducive to the development of human resources of workers, but also conducive to the competitiveness of employers, and has positive significance for enhancing the stability of labor relations. For example, in accordance with the requirements of the competent authorities, the hospital arranges for newly admitted residents to go to the designated training base to receive training mainly to improve clinical practice ability in accordance with national and municipal training standards. Or considering that pilots, teachers and other high-skilled talents with professional and special characteristics need to continuously carry out ability training and ability maintenance, the technical training and academic training arranged by the employer for this purpose are all special technical training. If the employer arranges special technical training, it may agree on the service period with the employee. If the employee violates the service period agreement, he or she shall pay liquidated damages to the employer in accordance with the agreement, and the amount of liquidated damages shall not exceed the training fees provided by the employer. Among them, training expenses refer to the training expenses paid by the employer for professional and technical training of the employee, the travel expenses during the training period and other direct expenses incurred by the employee for the training. The employer shall not require the employee to return the labor remuneration obtained by the employee in accordance with the law based on his or her own labor contribution during the service period.
Legal Tips:
1. According to Article 3 of the Labor Law, workers enjoy the right to equal employment and choice of occupation, the right to receive labor remuneration, the right to rest and vacation, the right to labor safety and health protection, the right to receive vocational skills training, the right to enjoy social insurance and welfare, the right to submit labor disputes for settlement, and other labor rights prescribed by law.
Workers shall complete labor tasks, improve professional skills, implement labor safety and health regulations, and abide by labor discipline and professional ethics.
2. According to Article 68 of the Labor Law, the employer shall establish a vocational training system, withdraw and use vocational training funds in accordance with national regulations, and conduct vocational training for workers in a planned manner according to the actual conditions of the employer.
Workers engaged in skilled jobs must undergo training before taking up their posts.
3. According to Article 22 of the Labor Contract Law, if an employer provides special training expenses for an employee and provides him with professional and technical training, it may enter into an agreement with the employee to stipulate the service period.
If the employee violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement. The amount of liquidated damages shall not exceed the training fees provided by the employer. The liquidated damages required by the employer shall not exceed the training expenses that should be apportioned for the unfulfilled part of the service period.
If the employer and the employee agree on the service period, it will not affect the increase of the employee's labor remuneration during the service period in accordance with the normal wage adjustment mechanism.
Both graduates and employers should establish a sense of integrity, sign contracts cautiously, and actively perform contracts. For workers, if they receive special training from the unit, they are obliged to make more contributions to the unit. At the same time, the employer shall agree on liquidated damages for the service period with the new recruits in accordance with the law. If an employer claims training fees from a new employee, it needs to provide proof such as payment vouchers and settlement lists for the training expenses incurred by the employee, so the employer should pay attention to the retention of evidence when conducting special training for the employee.
Contributed by: Beijing No. 1 Intermediate People's Court
Editor: He Wanshan Wang Xi
Review: Zhang Zhongtao