Don't forget to avoid legal risks when you enter the job

The annual graduation season is coming. After experiencing a long job search road, graduates have officially entered the society. The first step in entering the workplace is to go through the procedures. In this process, what legal issues are worth noting? What should I do if the employer refuses to sign the labor contract for various reasons and extend the probation period for no reason?

Question 1

Do I have to sign the labor contract?

After graduating from college, Li was engaged in a company on August 1, 2019 to engage in software technology development. The company is smaller, and most of the employees are technical developers, and the personnel management is not standardized. Li has repeatedly proposed to sign a labor contract, and the company refused on the grounds that there was no contract template. On October 30, 2020, Li proposed to leave, asking the company to pay twice the wage difference of not signing a labor contract during the working period. After labor arbitration and court trial, the court finally judged that the company paid twice the wage difference between September 1, 2019 to August 31, 2020.

According to the provisions of Article 82 of the Labor Contract Law of my country, if the employer does not make a written labor contract with the worker for more than a month from the date of self -employment of the employer, it shall pay twice the salary of the workers a month. Article 7 of the "Regulations on the Implementation of the Labor Contract Law of the People's Republic of China" stipulates that if the employer has not entered into a written labor contract with the workers from the date of self -employment of the employer, the day from the day to the day from the date of employment to the full employment The day before, in accordance with the provisions of Article 82 of the Labor Contract Law, the workers should pay twice the salary to the workers a month, and they are deemed to be a non -fixed period of labor on the day of their own work. Contract should be immediately made up for a written labor contract with the workers. According to these regulations, the company in the above cases did not sign a labor contract with Li, and it should be paid twice the wage difference of the unsigned labor contract one month from the time of the employment of Li. Since then, the company has established a non -fixed -term labor contract relationship with Li, and the court no longer supports two times the wage difference between unsigned labor contracts. In short, if the employer fails to sign a labor contract with the workers, the workers can advocate twice the wage difference of two times without signing a labor contract for 11 months.

Judge remind

Establishing labor relations, employers shall sign a written labor contract with workers. Employers and workers can agree on labor contracts with a fixed period, or they can also sign a labor contract without a fixed period or to complete a certain work task. When the employer signs a written labor contract with the workers, it should be clear about the workers' closely related matters such as wages, working hours, and labor security.

There are also corresponding regulations for the constituent elements of the labor contract. The following terms should be available: the name, residence and legal representative or main person in charge of the employer; Dialogue; work content and place of work; working hours and rest; labor remuneration; social insurance; labor protection, labor conditions and occupational hazards protection.

If the employer fails to establish a labor contract within one month from the date of employment in accordance with the law, the worker can claim to the employer to claim that the labor contract is double the wage difference.

Question 2

Can the trial period be extended at will?

The fresh graduate Wang completed the employment procedure on July 15, 2019. The company signed a three -year fixed period of labor contract with him, agreed that the probation period was three months. During this period Yuan. Before the expiration of the probation period, Wang participated in the corporate assessment of the company's organization. The comprehensive evaluation opinion believes that although Wang as a newcomer of the workplace has the text level of Chinese, the copywriting is slightly immature. Further improvement, the company decided to extend the three -month trial period to retain it to be inspected. Subsequently, the company signed a supplementary agreement with Wang, and the two parties agreed to extend the probation period for three months, that is, from October 15, 2019 to January 14, 2020, the expected monthly salary standard of the trial is still 8,000 yuan. After the month, the test period is qualified to be qualified. Wang finally turned into a formal employee after 6 months of employment, but he always believed that the company's extension of the three -month trial period was illegal. On January 14, the wage difference and compensation for the trial period of illegal agreement. After trial, the court supported Wang's request.

According to the provisions of Article 19 of the Labor Contract Law of my country, the same employer and the same workers can only agree on the probation period. In the above cases, the company and Wang agreed to the trial period for three months. Even if they extended three months, although the probation period for a total of six months did not exceed the statutory period, according to the law, the company has agreed to the three trial period three of the three trial periods. In the case of month, no agreement is allowed to be extended. It should be reminded that the law given the employer to the legal termination of the labor contract during the probation period. According to the provisions of Article 39 of the Labor Contract Law, it is proven to be proved to be in accordance with the requirements of the employment period. The employer can terminate the labor contract. Essence

Article 83 of the Labor Contract Law stipulates that if the employer violates the provisions of the provisions of this Law, the trial period shall be ordered by the workers shall be ordered by the labor administrative department. The salary is the standard, and pay compensation to the workers according to the period that has performed more than the legal probation period. Therefore, in the case of the company's illegal extension of the probation period, Wang has the right to ask the company to pay the wage difference between the three months in accordance with the wages after the transfer, and require the other party to pay compensation in accordance with the three -month salary standard. Judge remind

If the labor contract period is less than three months or more, the probation period shall not exceed one month; if the labor contract period is less than three years, the probation period shall not exceed two months; The probation period must not exceed six months. The salary of workers in the probation period shall not be lower than 80%of the salary agreed on the labor contract, and shall not be lower than the minimum wage standard of the employer's location. It is important to emphasize that the same employer and the same worker can only agree on the probation period.

If the employer exceeds the trial period of the statutory standard or extended the probation period (secondary trial period) after the probation period expires, it is illegal, and the workers have the right to request the employer's compensation for the trial period of illegal the trial period. If the salary standard during the trial period of the employer is lower than the standard of 80%of the labor contract agreed standard, the worker has the right to request the wage difference in accordance with the labor contract.

Question 3

Can social insurance not pay?

After Zhang graduated, he joined a company with a monthly salary of 8,000 yuan. In order to reduce the cost of employment, the company did not pay social insurance for him. Although Zhang knew that the company was inappropriate, he did not take measures such as a newcomer. Unfortunately, Zhang had a sudden illness treatment. After the company learned, he paid the medical expenses of 20,000 yuan for him, and he had not paid any fees since then. After discharge, Zhang and the company negotiated that the medical expenses for reimbursement were rejected, and later sued to the court. After trial, the court finally judged that the company paid medical expenses in accordance with Zhang's medical insurance treatment.

According to Article 23 of the my country Social Insurance Law, employees shall participate in basic medical insurance for employees, and employers and employees shall jointly pay basic medical insurance premiums in accordance with national regulations. In the above -mentioned case, when Zhang was on -the -job, the company did not pay social insurance for it, which caused the medical expenses expenditure during the disease to be reimbursed through medical insurance. In judicial practice, the arbitration commission or judicial organs generally account for the amount of medical insurance reimbursement in the medical insurance reimbursement scope of the medical insurance reimbursement through the entrusted social insurance agency to calculate the medical expenses spent by the community insurance agency.

Judge remind

Article 72 of the Labor Law stipulates that employers and workers must participate in social insurance in accordance with the law and pay social insurance premiums. Establishing social security accounts and paying social insurance premiums in accordance with the law is a legal obligation of employers. For workers, paying social insurance is also a legal obligation of workers. At the same time, enjoying social security treatment is also one of the labor security that workers can enjoy in accordance with the law.

The employer shall declare on their own and pay the social insurance premiums on time. The social insurance premium shall be paid by the employee shall be deducted and paid by the employer. Because of this, the employer has not been declared due to the purpose of reducing the cost of working, or applying for social security lower than the actual salary standard, or the employee's "increase" actual salary and refusal to pay social security. Behavior.

If the employer does not pay social insurance premiums in full on time, the social insurance premium collection institution shall order or make up for the limited time, and from the date of owing it, it will be collected by 5,000 per 10,000 per day. Relevant administrative departments shall double the amount of less than three times the amount of owed to the administrative department. If the employer does not pay the social security or pays the social security base lower than the actual salary level of the workers, it is illegal. Workers can request the employer to make up for the employer by complaining to the administrative law enforcement department. If the social security agency cannot make up the staff that the workers cannot enjoy social security treatment, the workers may ask the employer to compensate for the loss of social security benefits. Taking medical insurance as an example, if the employer has not paid social insurance, if the labor expenses are paid by the laborer's illness, the medical expenses will be compensated by the medical insurance standards.

Question 4

Is the unit's deposit legal?

Graduate Li learned that new employees must conduct professional skills training when they go through the in -service procedures. The unit requires them to pay a deposit of 20,000 yuan in the training training. After Li paid as required, the unit had not returned the fee to him. Li Mou filed a lawsuit and tried it. In the end, the court's judgment unit returned the deposit to Li.

According to Article 9 of the Labor Contract Law, the employer recruits workers and shall not seize the resident ID card and other documents of the workers, and shall not require the workers to provide guarantees or collect property to the workers in other names. In the above cases, the new employee will conduct professional skills training. The service period and liquidated damages can be agreed in accordance with the relevant laws, but the unit's method of collecting a deposit is violated by the law.

Judge remind

Generally speaking, when the workers obtain the employer's hiring notice, the employer requires the workers to provide their identity information, academic qualifications, vocational skills certificates and other materials. In this regard, the workers are obliged to submit a copy to the employer and provide the original convenience for employers. The unit checks the review materials. In addition, the employer must not seize the resident ID or other documents of the worker, nor can it be charged with any name for the workers. If the employer collects the deposit of the worker or seizes the resident ID card illegally, the workers can order the employer to refund or raise the request for labor arbitration applications through the labor administrative department. If damage is caused, workers can also ask the employer to bear the liability for compensation.

Question 5

Is the self -determined liquidated damage amount?

Qi was joined on July 1, 2014, and signed a service period with the company in November. The two parties agreed that the company went through the Beijing settlement procedures for Qi Mou. If you leave in advance, you need to pay a liquidated damage of 500,000 yuan at one time. In April 2016, the two sides lifted the labor relationship. The company believes that Qi Mou's resignation led to the interruption of the project, and recruited new employees with cost expenses, and claimed to the court to ask Qi to pay a liquidated damage. After trial, the court held that the liquidated damages signed by the company and Qi Mou were invalid due to violating mandatory laws and did not support the company's lawsuit.

Article 22 of the Labor Contract Law stipulates that employers provide special training costs for workers. Those who provide professional technical training on them may be established with the worker to agree on the service period. If the worker violates the agreed service period, he shall pay a liquidated damage to the employer in accordance with the agreement. The amount of liquidated damages shall not exceed the training costs provided by the employer. The employer requested that the liquidated damages paid by the workers shall not exceed the training costs that should be shared by the part of the service period.

Article 23 of the Labor Contract Law stipulates that employers and workers can stipulate in the labor contract to keep the employer's business secrets and confidentiality related to intellectual property rights. For workers who have the obligation of confidentiality, the employer can agreed with the workers to stipulate the restrictions on the competition with the workers in the labor contract or confidentiality agreement, and agreed that after the termination or termination of the labor contract, the labor economy is given to the worker's economy within a monthly limit period within the period of the competition restrictions. compensate. If the worker violates the restrictions on the competition, he shall pay a liquidated damage to the employer in accordance with the agreement.

Except for the aforementioned provisions, employers shall not agreed with the workers to bind a liquidated damage with the workers. Therefore, based on the procedures for setting up the settlement for the workers, the liquidated damages violated the compulsory legal provisions. Even if the person and the worker and the workers agreed that the liquidated damage clauses were invalid clauses, and the employer shall not claim to the workers accordingly. What needs to be reminded is that if the workers do have a promise of service period and leave the job in advance during the service period, they have the principle of disappointment. And the employer re -recruited employees after recruiting workers and workers to recruit a certain expense expenditure and employee costs. Economic losses caused by leaving the employer in advance.

Judge remind

The employer can agreed with the workers to agreed with the workers in accordance with the law. At present, only two cases of labor laws and regulations in my country support the case of agreed liquidated damages: First, it involves vocational training. The employer provides special training costs for workers to conduct professional technical training for them. If the service period may be agreed with the worker; if the worker violates the agreed service period, it shall pay a liquidated damage to the employer in accordance with the agreement. Second, for workers with confidentiality obligations, the employer may be agreed in the labor contract or confidentiality agreement with its agreed restrictions in the labor contract or confidentiality agreement, and agrees that after the termination or termination of the labor contract, the labor economy will be given to the worker's economy within the period within the period of the competition restrictions. compensate. If the worker violates the restrictions on the competition, he shall pay a liquidated damage to the employer in accordance with the agreement. Except for the above two situations, the liquidated damages between the employer and the workers are invalid.

(Author unit: People's Court of Haidian District, Beijing)

Source: Beijing Daily

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