Employees Who Are Legally Bound To Exercise Personal Freedom

Zheng is a pport company employee.

In February 2016, Zheng was detained by the public security department for prostitution.

During the period of administrative detention, the pport company believed that Cheng did not go to work in the absence of any leave of absence procedures, which constituted an absenteeism. The company decided to terminate the labor contract in accordance with the relevant provisions of absenteeism.

Should employees be absenteeism during the period of restricting personal freedom in accordance with the law? In such cases, how should units be handled according to law?

Restricting personal freedom in accordance with the law refers to administrative or criminal punishment measures that are authorized by the state authorities to restrict or deprive citizens' personal freedom in a short time, such as administrative detention, detention education, compulsory detoxification, and criminal detention.

For administrative detention, detention education and compulsory detoxification, citizens violate the relevant provisions of administrative law, and their illegal activities have been confirmed.

While criminal detention is a citizen's criminal offence, his criminal behavior is being confirmed.

Therefore, during the period of criminal detention, employers can not deal with workers in violation of discipline.

Here, we mainly discuss the administrative class and the fact that illegal facts are confirmed to be restricted by personal freedom according to law.

The specific explanation for absenteeism is "

Absence from work on normal working days without leave or absence from leave. "

Legal absenteeism refers to workers who do not ask for leave or leave without permission without attendance.

There are three conditions for determining absenteeism: first, workers do not comply with the requirements; two, there is no irresistible reason for laborers to go to work; three, the fact that they do not go to work objectively exists.

Although the worker did not take the leave according to the prescribed procedures during the period of restriction of personal freedom according to law, his absence from work was due to irresistible factors, that is, the state authorities have limited the freedom of attendance. Therefore, it is obviously insufficient to handle absenteeism.

How should the units respond to the restrictions on personal freedom by law? The author suggests that there are two ways to deal with them: first, improve the rules and regulations.

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"The thirty-ninth clause, the second paragraph, stipulates that if a worker seriously violates the rules and regulations of the employing units, the employer may rescind the labor contract.

Accordingly, when making rules and regulations, employers can define workers as violating regulations of public security and restricting personal freedom according to law.

"If the worker is restricted by the law of personal freedom (excluding the investigation stage of illegal and criminal facts), the employer can terminate the labor contract according to the regulations.

Two, if the rules and regulations do not stipulate that "workers can be relieved of their personal freedom, they can terminate the labor contract". The employer can also terminate the labor contract when the worker is restricted by personal freedom in accordance with the law.

The twenty-eighth provision on the implementation of several issues concerning the labor law stipulates: "when a laborer is suspected of having committed a crime and is being detained for examination, detention or arrest by the relevant authorities, the employer may temporarily suspend the performance of the labor contract when the employee is restricted by personal freedom.

During the temporary suspension of performance of the labor contract, the employer shall not undertake the corresponding obligations stipulated in the labor contract.

If a laborer proves to be wrongfully restricting his personal freedom, he may temporarily suspend his performance of the loss of the laborer during the labor contract. He may claim compensation from the relevant department in accordance with the state compensation law.

Accordingly, during the period when the worker is confined to the personal freedom or the illegal act is confirmed to be restricted, the employer can take the temporary suspension of the labor contract, that is, to suspend the labor contract.

During the suspension of the labor contract, the employer can stop paying wages and stop paying social insurance premiums, and the time for suspension will not be counted as the working life of the workers.

If the worker is wrongly restricted to personal freedom, he may claim compensation from the relevant departments according to the "State Compensation Law".

Zheng was arrested by prostitution for administrative detention and could not be treated as absenteeism.

If the rules and regulations of the pport companies stipulate that the workers who are under administrative detention can terminate the labor contract, they can be dealt with according to the rules and regulations. If there is no relevant provision, the unit may adopt the way of suspending the contract.