Law And Risk Control Of Layoffs For Enterprises

Since May 18th. Layoffs The storm has pushed the cool network to the cusp of public opinion. In the case of layoffs, according to the "labor contract law", according to the conditions of layoff in the labor contract law, if we meet the conditions for layoffs, we must go through the layoff process, otherwise it is the loss of employees' rights and the right of employees to seek compensation. Enterprises are now laying off staff. Law Regulations and laws risk We should make a comprehensive analysis of the control and hope to enlighten and help the employees who have to lay off their jobs or the employees who have been laid off.

Legal application and risk control of layoffs

1, redundancy conditions and risk control

According to the forty-first provision of the labor contract law, the employer must have legal conditions for layoffs. The burden of proof should be borne by the employer. The employer must have sufficient evidence to prove that the conditions for layoffs can be met by the law, and that the employer can not lay off evidence. The conditions for employers to lay off staff are as follows:

The employer shall carry out the reorganization according to the provisions of the enterprise bankruptcy law. In practice, it is relatively easy for the employer to give evidence of redundancy in accordance with the provisions of the enterprise bankruptcy law, providing a ruling on the reorganization of the people's Court issued by the people's court.

There are serious difficulties in the production and operation of the employing units. Serious difficulties in the production and operation of employers are the main reasons for the layoffs of employers. When applying this condition, employers must prove that production and operation have been difficult and serious difficulties. This requires proof of the relevant financial situation of enterprises. In practice, many employers have layoffs under the guise of the financial crisis. In fact, production and operation have not been affected, which will make layoffs fall into the risk of illegal dismissal.

After changing the labor contract, enterprises still need to cut down personnel. The employer should pay attention to the fact that when the enterprise has changed its production, major technological innovation or adjustment of the way of operation, it can not immediately lay off the employees. Instead, it must first change the labor contract with the laborers. If an unaltered labor contract is a layoff, it is also an illegal rescission contract, and it has to bear the legal liability for breaking the contract illegally.

Other major changes in the objective economic situation based on the conclusion of the labor contract have resulted in the failure of the labor contract to be fulfilled. Note that here is a "significant change in the objective economic situation", not the fortieth third item of the labor contract law. "The objective situation based on the conclusion of the labor contract has undergone major changes, resulting in the failure of the labor contract to be fulfilled. The employer and the laborer have not reached an agreement on the contents of the more labor contract when they negotiate with the laborers".

2, layoff procedures and risk control

The forty-first provision of the labor contract law stipulates that "if one of the following situations is to reduce more than twenty personnel or less than twenty people, but it accounts for more than ten percent of the total number of employees, the employer can explain the situation to the trade union or all the staff thirty days in advance. After listening to the opinions of the trade union or staff, the personnel reduction plan can be reported to the labor administrative department, and the staff can be reduced."

(1) the number requirements: the number of staff needed to be reduced should reach more than twenty or less than twenty, but the total number of employees should be more than ten percent. In practice, the risk of employing units lies in the fact that the number of workers who have not reached twenty or less has not reached ten percent of the total number of workers. If the number of the staff is not up to the statutory standard, the employer can not start the layoff procedure to terminate the labor contract in batches, and can only terminate the labor contract in accordance with the provisions of the thirty-sixth, thirty-ninth and fortieth articles of the labor contract law. Otherwise, the layoff behavior is illegal and should bear the legal risk of illegal dismissal. It is suggested that it is easier for employers to avoid risks by negotiation.

(2) advance explanation: the employer should explain the situation to the trade union or the whole staff thirty days ahead of time, listen to the opinions of the trade union or the staff and workers, pay attention to the situation of the union, or explain the situation to all the staff and workers. The employer can choose it. In the course of operation, the employer should pay attention to the fact that "all staff members" should not be replaced by "staff representatives". In addition, the written evidence should be kept in advance for notification to the trade union or all the staff members. It is also necessary to put forward a plan for reducing personnel, which includes: the list of persons being laid down, the time for reduction and implementation steps, the economic compensation method for the laid off personnel in accordance with the provisions of laws, regulations and collective contracts; and the opinions of the labor administrative department shall be heard.

(3) reporting procedure: the plan for reducing personnel needs to be reported to the labor administrative department. It is noted that the law does not require the approval of the labor administrative department before it can be laid off, so long as the performance of the reporting procedure is fulfilled. The employer should retain relevant evidence signed by the labor administrative department.

(4) layoff: the employer shall formally announce the scheme for reducing staff and handle the termination of labor contracts with the laid off personnel. In accordance with the relevant provisions, the employer shall pay the economic compensation to the personnel who have been laid off, and issue a certificate of reduction of personnel.

3, those who give priority to layoffs should be laid off.

In accordance with the provisions of the labor contract law, when reducing personnel, priority should be given to the following personnel: 1, a longer term fixed term labor contract with the unit; 2, a non fixed term labor contract with the unit, 3 of the family without other employment personnel, and an elderly or minors who need support. In addition, if the employer re recruits personnel within six months after the reduction of personnel by the employer, he or she shall be notified of the reduction of personnel and give priority to the application of the laid off personnel under the same conditions. Note: Article nineteenth of the notice on certain issues concerning the implementation of the labor contract system stipulates that employees who have been laid off by the employers due to economic layoffs are rehired by the original units within six months. The working hours of the employees before and after the reemployment should be counted as working hours of their units.

If the employer does not pay attention to the scope of the staff who is required by law to give priority to the retention, it will also be suspected of illegal layoffs if the staff in the longer term contract and the non fixed term contract are laid off and the employees who are kept in the short-term contracts are retained.

4, layoffs and legal risks of employers.

The so-called layoff prohibition is mandatory under the law, and no specific object can be reduced. According to the provisions of the labor contract law, employees who are old, weak, ill and disabled should not be cut down in layoffs.

1 the workers engaged in occupational hazards work did not carry out occupational health examination before leaving work, or suspected patients with occupational diseases during the period of diagnosis or medical observation.

2 in the unit, occupational disease or injury due to work is confirmed and lost or partially disabled.

3 sick or non occupational injury within the prescribed medical period;

4 female workers during pregnancy, childbirth and lactation.

5 in the unit for fifteen consecutive years, and less than five years from the statutory retirement age;

In practice, when the employers are laying off workers, the first four categories of personnel who are the first to be considered are the above four kinds of personnel who are less able to work and less competitive. But these four groups of people are precisely the objects that the law focuses on protecting. If the employers cut off the illegal personnel in layoffs, they will face the risk of breaking the labor contract illegally. At present, some female employees in practice are trying to avoid being cut down, being pregnant suddenly and conceived of the so-called "financial crisis baby". In fact, they are using the legal provisions that women workers should not reduce during pregnancy, childbirth and lactation.

5, reduce the restrictions and risks of probationary employees.

In practice, employers usually consider the reduction of the probationary employees first, but this is often the most easily neglected risk in the process of layoffs. The twenty-first provision of the labor contract law stipulates that "during the probation period, the employer shall not terminate the labor contract except that the worker has thirty-ninth or fortieth articles and second provisions." This article provides that the basis for the termination of a labor contract during the probation period is limited to thirty-ninth articles and fortieth items in the first and second terms, and excludes the application of forty-first layoffs. In other words, if the laborer fails to reduce the legal basis in accordance with the forty-first provision during the probation period, it will face the risk of breaking the labor contract illegally. The author believes that in order to avoid legal risks, the employer may choose to terminate the labor contract in the probation period, or reduce it after the expiry of the probation period.

Layoff alternatives and risk control

Due to the conditions of the layoffs, strict procedural requirements, and the regulations on layoff prohibition and priority retention personnel, the employers often tend to use some other non layoffs to achieve the purpose of layoffs after considering legal risks. We call these alternatives the layoffs instead of the alternatives. In practice, the layoffs instead of the employers are the following.

1, pay cuts

In practice, there are two ways for employing units to reduce salaries, one is unilateral pay reduction, the other is negotiating salary reduction. The so-called unilateral pay reduction is to reduce the labor remuneration of the employer without the consent of the laborer. The author believes that the employer's unilateral pay reduction is not in line with the law. According to the seventeenth provision of the labor contract law, labor remuneration is an essential part of the labor contract. The employer's unilateral reduction in salary is actually a necessary provision for changing the labor contract. The thirty-fifth clause of the labor contract law stipulates that the employer and the laborer can change the content stipulated in the labor contract through consultation. It can be seen that the change of the labor contract must be agreed by the laborers. If the laborers agree to forcibly reduce the remuneration without the consent of the laborers, they can be regarded as deducting or not fully paying the labor remuneration. If the worker has the right to demand full payment, the employer will also be faced with the legal responsibility of labor supervision. Some people think that labor remuneration is the content of the rules and regulations. It can be achieved by reducing the remuneration of labor by modifying the rules and regulations with the workers' Congress and the democratic process such as consultation with the trade union. I believe this practice is very dangerous. According to the sixteenth provision of the supreme people's Court on the interpretation of several issues concerning the application of law in labor dispute cases, the internal rules and regulations formulated by the employing units are inconsistent with the contents stipulated in collective contracts or labor contracts, and the people's court should support the workers' request for priority application of the two contract. That is to say, the revision of rules and regulations will not lead to the reduction of labor remuneration in labor contracts, and workers can request priority in the application of contractual agreements.

2, reduce overtime or do not schedule overtime work.

In practice, many employing units, especially labor-intensive enterprises, often obtain higher remuneration by working overtime for a long time. Once the overtime time is reduced or the overtime is not arranged, the workers' remuneration may be the minimum wage standard or slightly higher than the minimum wage standard. Under such low wage level, workers will naturally lose their jobs. The financial crisis has the biggest impact on labor-intensive export processing enterprises, and the number of orders for many enterprises has dropped sharply. There is no need to arrange workers to work overtime. Therefore, reducing overtime hours or not arranging overtime work has become a layoff alternative for employers. Overtime work has always been an act of encouragement which is not encouraged by China's labor law. The labor law has imposed strict restrictions on it. The forty-first provision of the labor law stipulates that employers can extend their working hours after consultation with trade unions and laborers due to their production and operation needs. They generally do not exceed one hour a day. For special reasons, the extension of working hours is not allowed to exceed three hours a day, but not more than thirty-six hours per month. In the financial crisis, the reduction of enterprise orders and the arrangement of workers to work overtime were not understandable or inconsistent with the provisions of national laws. But in this impetuous society, no arrangement of overtime seems to have become an immoral act, which has recently been called "disguised" by the media. According to the author, under the statutory conditions and legal procedures, it is a normal thing for enterprises to lay off and save themselves. After all, enterprises are not charitable organizations, but in the media's "righteous and stern" accusation, this very normal legal behavior seems to have become a secret and shameful business, which has become the target of public criticism. We must oppose any illegal layoffs of any enterprise, but we should be tolerant when layoffs are unavoidable.

3, vacation

In practice, there are two ways for employers to take a holiday, one is unpaid leave, the other is paid vacation. Many employers want to achieve the purpose of indirect layoff by way of unpaid leave. I believe this is a violation of the law, and there is no legal basis for unpaid leave in China. Unpaid leave is a serious damage to the interests of workers. It is suspected not to provide labor conditions, but also can be recognized as a deduction of wages. Under certain conditions, the enterprise must comply with the relevant legal requirements for holidays. The twelfth provision of the Interim Provisions on wage payment stipulates that the employer shall pay the wages of laborers in accordance with the standards stipulated in the labor contract if the unit stops or stops production due to the reasons of the workers in a wage payment cycle. If more than one wage payment cycle is provided, if the worker provides normal labor, the remuneration paid to the worker must not be lower than the local minimum wage standard; if the worker fails to provide normal labor, it should be handled according to the relevant regulations of the state. According to the regulations, two conditions must be met for a holiday. One is the fact that the employing units have stoppage and production, and the two is the cause of the shutdown and non production of workers. In addition, it is necessary to pay the corresponding wages and living expenses. In practice, some employers have to leave their workers under normal operation, which is obviously not in conformity with the law. In judicial practice, they can be identified as not providing labor conditions to the workers, and the employers need to bear the corresponding legal consequences.