Original title: Enterprises give employees long vacations if they have no money to lose?(Theme).
Expert: "soft layoffs" through long vacations are not only illegal but also increase the cost of dismissal (subtopic).
Rule of law ** reporter Zhao Li Xi student Wan Peng.
A total of 10 months, this may be the company with the longest holiday in Shenzhen and even in the country!”
What makes people sigh so much is the "holiday notice" of a company in Shenzhen recently. According to the "Holiday Notice", the company's holiday time for employees is from 9 a.m. on July 1, 2023 to 18 a.m. on October 31, 2023 and from 9 a.m. on November 1, 2023 to 18 a.m. on April 30, 2024.
The company's staff said in an interview with ** that the company's meaning to the employees on vacation is actually "almost no need to come back", because "these people did not take the initiative to resign, and the company has no money to compensate".
After the above situation was **, it sparked discussions among netizens, and many people said that they had encountered similar situations. Some people think that "as long as you can pay your salary if you don't go to work, it's good to spend it", while others question "Isn't this a disguised layoff".
Is the above behavior illegal?The reporter of "Rule of Law**" interviewed industry experts.
The company's business is carried out normally, but some employees take long vacations.
The holiday accumulated for 10 months, and the reason given by the company in Shenzhen was that the company had insufficient orders, which led to the company's operating difficulties and could not meet the operating conditions.
As for the salary during the holiday, the company said that it was implemented in accordance with the "Shenzhen Employee Wage Payment Regulations" and other relevant regulationsThe first month's salary will be paid normally, and the next month will be paid at 80% of Shenzhen's minimum wage standard.
In this regard, an employee of the company revealed to **: "The company still has people at work, and there is no so-called shutdown." The company has given the first employees four months off since July. By the end of October, the first batch of employees did not leave on their own in July, and then went on holiday with the second batch of employees until the end of April 2024. Employees who are on vacation can survive as long as they can, and if they can't stay up, they will find a job and leave on their own. ”
In the view of the deputy dean of the School of Labor Economics of Capital University of Economics, from the above background information, it is difficult to determine whether the real purpose of the enterprise is due to insufficient orders or other illegal purposes. From the perspective of the incident itself, the company's above-mentioned holiday arrangement infringed upon the legitimate rights and interests of the employee, because the company did not have a legitimate reason, failed to follow the legal procedures, and failed to perform the labor contract in accordance with the law, the employee can request the employer to bear the corresponding legal liabilities in accordance with the law, including making up for the underpaid wages.
The interviewed experts said that enterprises should not be capricious on holidays, and they should not take as long as they want. "At the normative level, there is a relatively clear concept of 'leave', and the unilateral 'holiday' of an enterprise does not belong to the circumstances prescribed by law, unless the rules and regulations of the enterprise provide for and do not harm the rights and interests of employees, such as the rules and regulations of some units that provide for full pay and welfare leave. The scope said.
The scope told reporters that according to the relevant notice of Guangdong Province, when an enterprise decides to suspend work and production, it should first explain the situation to the employees. If an enterprise suspends work or production for reasons other than those attributable to employees, it shall explain to the employees the reasons for the suspension of work and production, the time limit, the work tasks to be arranged during the suspension period, the wage payment standards to be implemented, and other relevant circumstances, listen to the opinions of the employees, and give explanations and replies in accordance with law. When an enterprise may suspend work or production, it should promptly report the situation to the local labor and social security department, make a plan under the guidance of the labor and social security department, and report the abnormal situation of employees to the labor and social security department at any time, so as to jointly ensure the harmony and stability of the enterprise order and social order during the shutdown period. Only in accordance with the above provisions, the enterprise can give employees leave after paying the corresponding remuneration in accordance with the law.
Combined with the background information, the behavior of the Shenzhen company to take a long vacation did not fully comply with the above provisions, so it was essentially an act of not performing the labor contract in accordance with the law, which constituted a breach of contract. "Scopely, from the theoretical and institutional level, the illegal behavior of enterprises taking long vacations will not lead to a reduction in the economic compensation of employees. The reasons for this are: first, the unilateral determination of the minimum wage after the long vacation is a violation of the labor contract and the payment of labor remuneration is insufficient, and the employee can request the enterprise to pay the arrears of labor remuneration through arbitration or litigation;Second, the payment of severance should be based on the wages payable, rather than according to the payment standard unilaterally determined by the enterprise after the long holiday.
Disguised layoffs forced to leave the job and evade compensation are suspected of violating the law.
The reporter learned from the interview that similar cases of "soft layoffs" through long vacations are not uncommon in the workplace.
For example, among the top ten typical cases of labor and personnel disputes concluded in 2021 announced by the Jiangsu Provincial High People's Court, there is such a case: a knitting company took a long vacation to Xian because Xian complained that the company did not pay social insurance premiums in full according to the actual wage standard, and arranged for the employee to take a leave of 3 months on the grounds that the number of orders received was reduced, the production department was merged, etc.
Xian notified the company in writing, believing that it was a unilateral retaliation by the knitting company against his complaint, so he terminated the labor contract relationship with the knitting company in accordance with Article 38 of the Labor Contract Law. After arbitration, Xian filed a lawsuit demanding economic compensation.
The court held that after Xian complained to the relevant departments about social security issues, the knitting company separately sent a notice of long vacation to Xian. After Xian raised an objection to the holiday and asked to continue to work, the knitting company made it clear that only after Xian withdrew the complaint and made a commitment would it withdraw the holiday notice and allow him to go to work. The knitting company's behavior met the situation of the employer's "failure to provide labor protection or labor conditions in accordance with the labor contract" stipulated in Article 38 of the Labor Contract Law, so the knitting company was ordered to pay economic compensation to Xian.
The scope told reporters that in current practice, there are indeed employers who "wait for a long time" in the name of business difficulties, reduce the wages and benefits of employees in disguise, and force workers to voluntarily leave their jobs because they cannot accept lower wages and benefits, so as to avoid the payment of economic compensation for the termination of labor contracts. Long vacations have become a disguised way for some companies to lay off employees.
Sun Peng, a lawyer at Beijing Hairun Tianrui Law Firm, said in an interview with reporters that in practice, when the employer and the employee cannot reach an agreement on the termination of the labor contract and cannot bear the cost of continuing to employ, some enterprises will achieve disguised layoffs by taking long vacations.
If the employee is not familiar with the labor laws, he or she is likely to leave the job for personal reasons and find another way out, so that he or she will not be able to claim financial compensation from the employer. However, if the employee resigns to the employer on the grounds that the employer has 'failed to provide labor protection or working conditions in accordance with the labor contract', he has the right to claim severance from the employer for unilateral termination of the labor contract. Sun Peng said that in practice, the labor arbitration department will focus on examining whether the reason for the long leave is true, whether the procedures are complete and the reasonableness of the arrangement of waiting for work. Therefore, it is not feasible to take long vacations to avoid liability.
Taking the Shenzhen case as an example, Sun Peng analyzed that if the employer's reasons for suspending work and production are not sufficient, the procedures for suspending work and production are not in compliance, and the employer takes a long vacation only for the purpose of reducing staff and reducing costs, then the employer's behavior infringes on the legitimate rights and interests of the employee, and it is deemed that the employer has "failed to provide labor protection or working conditions in accordance with the provisions of the labor contract", and the employee has the right to terminate the labor contract and claim economic compensation in accordance with Article 38 of the Labor Contract Law.
From a practical point of view, this method is not only illegal, but also may increase the cost of dismissal, that is, in addition to the payment of severance or compensation for termination, it is necessary to pay arrears of labor remuneration and possible additional compensation. The scope said.
Strengthen the role of trade unions in enterprises and expand the scope of supervision.
The reporter learned from the interview that similar "soft layoffs" are not uncommon in the workplace. In order to reduce costs, some employers force employees to leave their jobs voluntarily by transferring jobs and reducing salaries without reason, and being left out in the margins. Compared with employers, most workers are in a disadvantaged position, and often have no choice but to give up due to the high cost of rights protection.
For example, at the end of November this year, Chen Hai (pseudonym), who works at an Internet finance company in Beijing, and several other colleagues were told by the human resources manager that the Beijing company was currently overstaffed and "asked us to work in the Hebei branch, and if we did not agree, we could choose to leave."
Chen Hai told reporters that his relatives and friends are basically in Beijing and do not want to go to Shijiazhuang, Hebei Province to work. "Two colleagues have already left after paying their salaries, but I think this is too embarrassing, and the company is clearly laying off employees in disguise. Chen Hai said.
For enterprises that are not doing very well, severance payments are also a large amount. As a result, some companies have implemented 'soft layoffs'. Although there are various forms of 'soft layoffs', the purpose of these layoffs is to get employees to leave voluntarily and avoid paying severance payments. An industry insider engaged in human resources training told reporters.
From the perspective of scope, the above-mentioned acts clearly violated the provisions of the Labor Law and the Labor Contract Law. Salary reduction, transfer of position, change of place of work and other means involve the change of the labor contract, and according to the provisions of the Labor Contract Law, the change of the labor contract shall be agreed upon through consultation in principle. Therefore, unless the statutory circumstances are met, it is illegal for an enterprise to unilaterally modify the labor contract.
Soft layoffs are not a normal human resource management method, on the surface, it seems to save a part of the economic compensation for the enterprise, but it is easy to cause labor disputes, and it will also affect the loyalty and enthusiasm of employees, and will cause damage to the company's brand. Sun Peng said.
According to the scope, the main reasons for the frequent occurrence of such phenomena include: First, under the premise of strong capital and weak labor, the behavior of enterprises may make workers face unbearable pressure and be forced to leave their jobs;Second, from the perspective of the current system, because the trade unions of some enterprises have not given full play to the role of safeguarding the rights and interests of workers, there is a lack of supervision and restraint mechanism for enterprises to "violate the law" (malicious salary cuts, job transfers and forcing employees to leave their jobs). In hindsight, when an employee is forced to resign, it is often difficult for judicial practice to determine that an enterprise violates the law, so some enterprises actually benefit from the illegal act.
The scope suggests that the role of enterprise trade unions should be strengthened, and the role of enterprise trade unions in safeguarding the rights and interests of employees in the workplace should be brought into playExpand the scope of labour inspections and strengthen the initiative of inspection and law enforcement. The above-mentioned malicious means and the verbal violence, harassment and other acts that may be attached to them should be included in the supervision;In dispute resolution, strengthen the review of the legality of coercive methods.
*:Rule of law**.