Common Legal Risks In Employee Handbooks

In my practice of arbitral litigation of professional lawyers in labor law, employee handbooks are often exposed to enterprises. In the process of providing consulting services to enterprises, there are often problems involving employee manuals.

From my feeling, many companies nowadays, whether big or small, have attached great importance to the construction of enterprise rules and regulations.

Large companies, mostly two to three years to modify the company's manual, and the contents of the company's internal staff manual has been very comprehensive and mature, the general small companies, when initially built, will actively invest some energy in the staff manual, groping for their own rules and regulations.

However, from a lawyer's point of view, I think the connection between the employee handbook and the labor relations in the enterprise is not very good at present.

The following is a brief introduction to the common risks involved in employee manuals in practice: HR, a case without a public employee manual, a case of a well-known Beijing based service company, in the case of dismissing an online salesperson, based on the provisions of the employee manual on serious violation of discipline.

The employee refused to accept the complaint and went to the Beijing labor dispute arbitration committee.

In the course of arbitration, the company provided the employee handbook and explained that this is the institutional basis for the dismissal of the employee.

But the employee stated that he had never seen this document at work, so he thought the document could not be used as a basis for dismissal.

The reason for the employee was recognized by the Arbitration Commission.

As a result, the company lost the lawsuit.

The analysis of the "Supreme People's court's interpretation of several issues concerning the application of the law of the Supreme People's Court on the trial of labor dispute cases", the nineteenth article, according to the fourth provisions of the labor law, is governed by the rules and regulations formulated by democratic procedures, which do not violate national laws, administrative regulations and policies, and have been publicized to the workers.

The negative interpretation of this article has not been publicized, and can not be used as a basis for the people's court to hear labour disputes.

In this case, it is precisely that the staff manual of the unit has not been publicized, or though it has been publicized, no evidence has been obtained, which leads to the fact that the fact that the employee manual is invalid is borne by the unit.

This shows that publicity is a necessary procedure for the employee handbook to take effect.

Without publicity, the employee handbook is perfect and the provisions are more specific. It is also a vase and display without any practical legal significance.

According to our actual situation, most companies' employees' manuals have risks in publicized channels.

The common publicity practices of the company are as follows: 1, the company's rules and regulations are published in the conference room of the company. There is no intention to remind employees to remind or remind employees, but there is no evidence to prove that there is no evidence to prove when it is announced; this practice is common in some old state-owned enterprises.

2, the company's employee handbook is posted on the company's internal website. Every employee can inquire through the company's system.

This practice is commonly seen in new IT companies, and even some well-known international IT companies.

3, the company's employee manual, through e-mail system, to each employee of the company.

This practice is common in emerging enterprises, though not the IT industry, but work habits rely on the Internet and are accustomed to using network communication in the process of work.

The first practice above is a more traditional approach, and it is also the most risky way.

Because of this practice, there is virtually no evidence that these systems have been publicly disclosed to employees.

So in this case, as long as staff deny, basically is the result of invalid employee manual.

There are certain similarities between the second practices above and third practices.

At present, because of the rise of network tools, because its use is really convenient, and is especially convenient for the management of off-site employees, it has been widely applied in practice.

These practices can save a lot of trivial work of human resources, which can save manpower, save labor, reduce work pressure and improve work efficiency.

But what is associated with it is legal risk.

These publicity methods are all carried out through the network. At present, judicial practice takes into account that the network itself is easy to modify and leave no trace. Once employees deny and the company can not provide other referential evidence, it is generally considered invalid as an employee manual.

The law itself does not provide any explanation for publicity.

At present, the understanding of publicity in judicial practice is that the company should inform employees of the employee handbook, and does not care whether they inform other employees.

Therefore, in the arbitration proceedings, the company has proved that it has been collectively signed by all the incumbent employees in order to prove that the employee handbook has been publicized.

However, due to the affiliation between employees and their companies, they also have certain economic interests. Therefore, such evidence can not be approved by arbitrators or judges in practice.

Therefore, it is concluded that if an enterprise wants to prove that the employee handbook has been publicized, it is necessary to have evidence to prove that the employees who are in dispute have clearly informed.

In practice, we have also encountered several kinds of good publicity methods, which can be used for reference: 1, when the employee is hired, the company will prepare some information or labor tools for employees to work with. The staff handbook (which needs to be separately specified) is required to be handed over to employees at the same time. At the same time, employees are required to sign and confirm receipt.

This practice has sufficient evidence to publicized the employees, and at the same time, it is convenient for employees to understand the rules and regulations of the enterprise when they enter the office, so as to quickly understand the culture and workflow of the enterprise.

2, when employees are recruited, appropriate training for employees (time may be only two or three days), including training of staff manuals, registration for such training, theme and attendance, and requiring every employee to sign in.

This approach is more practical than the first one.

3, on the basis of second practices, at the end of the training, the enterprise will conduct an open book examination on the employee handbook for the staff. The first employee will need to write handwritten answers to the employee handbook and sign his name.

This is the way we admire the most.

In view of the above three ways, we also need to consider the management of off-site employees.

For off-site employees, because of its general situation, and the human resources department of the enterprise is not in a place, if the employee is asked to sign such a thing at headquarters, or require an enterprise's human resources staff to run over to sign such a thing alone, the cost is much higher than the income.

In this case, we believe that when a formal labor contract is signed with the employee, an employee handbook should be attached to the employee with the contract, and the employee should be asked to sign a receipt for receipt of the employee manual to prove this point.

In practice, the enterprise can consider its own practice and focus on the above four ways. In practice, it is believed that the risk of publicity can be avoided.