Seven Crimes Easily Committed By Employers During Probation Period

In September, with a batch of new students entering the school, many graduates also experienced the transformation process from students to "social people" in the enterprises. Most new employee Can pass smoothly. Probation period And thus become a regular employee. However, there are still individual workers who will encounter an extension of their business life unilaterally or try to "use" their employees during probation. So, what are the probationary periods? Violation of workers' rights and interests Accordingly, I interviewed Qu Xiaorong and Liu Lizhen, a lawyer of Shanghai River Delta law firm.

　 It is not as easy and feasible to change the probation period.

Qu Xiaorong said that the probation period, to a certain extent, is a period of mutual understanding between employers and workers. During this period, the employer can inspect the quality and working ability of the laborers. Workers can also have a deep understanding of the operation of the employer and the corporate culture, and then make a decision of "positive" or "rescission" through the two-way choice of the two parties. Therefore, the "probation period" has always been the concern and attention of both sides of the labor relationship. However, from "trial" to "positive" or "lifting", it is not as simple as the name of the labor relations imagined by the two parties, and the most important point is that the employees in the probation period need to comply with the statutory requirements of the content in addition to meeting the advance notice requirements.

　 1 is it possible for new employees to "try" before signing labor contracts?

Nowadays, many employers will say, "our company is trying on these employees, so they have not yet signed labor contracts with them." Is this practice legal and whether workers can only accept passively and have nothing to do?

　 "Trial" is based on contract.

The premise of probationary period is the signing of labor contracts between the two parties, and the terms of the probation period are part of the labor contract, which requires the agreement between the two parties to exist. Without the signing of a labor contract, there is a factual labor relationship between employers and workers, and there is no question of probation. Therefore, the "trial" adopted by employers is not only unable to achieve the intended purpose, but also easy to cause disputes. For workers, we should understand the relevant provisions of the probation period so as to find out and point out the problems existing in the employing units in time. If this stage exceeds one month, the employer still does not sign a written labor contract, and the laborer may ask the employer to bear the double wage compensation liability without signing a written labor contract.

　 2 is the probation period established as long as the probation agreement has been signed?

Many employers believe that the probationary period between the two sides should be established as long as the probationary agreement is signed with the laborers.

　 The agreed probation period must first be legality.

The premise of the effective probation period is that the law recognizes its legal status. That is to say, there is no legal and valid probation period as long as there is a contract. It also depends on whether there are any prohibitive provisions in the law. According to the provisions of the labor contract law, there are several situations where the probation period is not applicable: the labor contract with a term of less than three months (excluding three months); a labor contract with a deadline for completion of certain tasks; a contract between the parties who are not full-time workers; and the labor agreement only stipulates the probation period (at this time, the probation period is not valid and the term is the term of the labor contract). In addition, the same employer and the same worker can only agree on a probation period. It can be seen that no probation period can be stipulated in the above terms. The employer must not contravene it. Otherwise, even if there is an agreement, it will be invalid and will not have the effect of probation. Labourers should be clear about this so as to safeguard their rights and interests.

　 3, only a probationary agreement is signed without a labor contract. Can the probation period be established?

Many enterprises are worried that signing labor contracts will be locked up, so they will not sign labor contracts with new employees, but only sign a probation agreement.

　 The probation agreement can be regarded as a labor contract.

Only trial period agreement and no labor contract, the agreement on probation period in the probationary agreement is invalid, and the agreement itself will be regarded as a labor contract, and the probation period will also become the term of the labor contract. Therefore, this way of operation of the employer can not produce the effect of "probation period", instead, it will be regarded as giving up the right to be tried by the hired personnel. As for labourers, they will not enter the "official staff" directly after the "probation period".

　 4 can the probation period be extended at will?

Many employers have doubts about whether or not to extend the pre agreed probation period. Some companies even take a direct unilateral coercive way to extend it.

The probation period should not exceed the statutory limit.

Since the probationary period is a selective clause which can be stipulated by both sides of labor relations, theoretically, it can also be extended in a certain way. However, we must adhere to the two principles: first, the two sides are equal, voluntary and consensus. This is because the extension of probationary period is essentially a change in the original probation period of the labor contract. Since it is a change, it is of course necessary for the two sides to reach a consensus. The two is that the probation period after extension can not exceed the statutory upper limit that the employer can agree on the probation period for the relevant workers. {page_break}

5 can "zero wage" trial?

Since 2009, faced with the increasingly severe employment pressure, many graduates have tried to get rid of unemployment as soon as possible, even willing to "zero wage" trial.

　 The probation period should not be lower than the minimum wage.

The probation period is part of the labor contract period. The parties to the labor relationship need to abide by the law when they fulfill their respective rights and obligations. In accordance with the relevant provisions of China's current labor laws, the employing units must pay the labor remuneration that must not be lower than the local minimum wage standard if the workers provide normal labor. Here, the "minimum wage" belongs to the bottom line restriction of the labor law in the probationary period of our country, which is a compulsory law. Therefore, the "zero wage" trial is illegal even if the worker agrees.

6 is the employee able to leave at any time during probation?

At present, many workers also have a misunderstanding, that is, as long as they are in probation period, they can leave at any time at any time when they feel unsuitable or have better whereabouts.

Resignation must be notified three days in advance.

In accordance with the provisions of the current labor law in China, in the probationary period, except the employing unit has the wrongfully prescribed act stipulated by law, the employee shall notify the employing unit three days in advance of the dissolution of the labor contract. If the worker fails to perform the relevant economic loss caused by the three day advance notification obligation to the employer, the worker shall be liable for compensation. Therefore, it is suggested that even if the worker is in probation period, it is better to submit his resignation in accordance with the law so as to avoid unnecessary disputes.

　 7 as long as the assessment is not qualified, the employer can let it "leave" on the grounds that it does not meet the recruitment requirements.

In judicial practice, many employers believe that if the employee fails to qualifying during the probationary period, the employer can dissolve the employee on the grounds that he does not meet the employment requirements.

　 "Four requirements" must be satisfied for "non conforming conditions".

In accordance with the provisions of the labor contract law of China, the employer can rescind the labor contract if the worker is proved to be out of employment during the probation period.

Accordingly, employing units in the probationary period through examination to prove that an employee "does not meet the employment conditions" and thus terminate the labor contract, usually needs to meet the following four legal requirements, that is, the employer has clearly defined the employment conditions and fulfilled the relevant disclosure obligations through relevant written documents such as recruitment documents, labor contract annexes and other written carriers. The assessment department of the employer's assessment of workers or other employment conditions is made according to the predetermined employment conditions; the employing unit has objective and sufficient evidence to prove that the employees are not in line with the employment conditions; the probation period is agreed and the relevant notice of termination of the labor contract is made and served by the employer before the expiry of the probation period.

The above elements are interlinked and indispensable. The employer should be cautious when making the lifting of the act, and the laborer must accurately grasp the relevant provisions so as to protect his rights and interests from infringement.