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1.1. Case: Handling of labor disputes.
1. Background information:
Huang is a chef employed by Lijia Restaurant, has good cooking skills, and his independent secret "crayfish" has a good reputation among diners. In order to keep him, the boss not only promised a high salary, but also signed an indefinite labor contract. The business of the Zhangjia restaurant opposite has been bleak, and there are no loud dishes. In order to reverse the unfavorable business situation, Zhang, the boss of the Zhang family, approached Huang and promised to give him double remuneration, and promised that Huang would not have to compensate for the expenses incurred due to the early termination of the contract. Huang couldn't stand the ** so he agreed to Zhang. first secretly instructed Zhangjia Restaurant, and after a month, Huang went to work in Zhangjia Hotel without going through the procedures for terminating the contract, and the signature dish of Lijia Restaurant, "Crayfish", also became a famous dish of Zhang's family. Due to the lack of a suitable chef for a while, the number of customers dropped sharply, and the turnover decreased by 70%.
2. Questions: 1) What should Huang and Zhangjia Hotel bear for the loss of Lijia Hotel?
2) According to the labor contract dispute, how should the Li Family Hotel initiate arbitration?
3) What are the main pieces of evidence that should be prepared by the Li Family Hotel?
1.2. Case: Identification and protection of labor relations.
1. Background materials:
At the beginning of January 2003, Qian, who was unemployed at home, became a driver for a company through a friend's introduction. The two parties did not sign a written labor contract, but verbally agreed that the monthly salary was 1,000 yuan. Since July 2003, the company began to owe money money, and Qian found the company's manager to ask the reason, and the manager said that the company was in temporary difficulties, and once there was money, it would be made up for it in the future. In this way, by the end of 2003, the company had been in arrears with Qian for 6 months' wages, and Qian found the company's manager to ask him to make up the wages immediately, and the company manager said that the company had not signed a written labor contract with Qian, so there was no labor relationship between the two parties, and Qian should be paid according to his work for providing labor services to the company, and since July 2003, Qian's workload has been reduced by half, and his labor remuneration should also be halved. Qian disagreed, and applied for labor arbitration in early 2004, demanding that the company pay back half a year's wages owed to him and compensate for the loss of 1 times the arrears of wages.
2. Questions: 1) Does Qian have an employment relationship with a company?What is the rationale?How should the labor dispute arbitration commission handle this relationship?
2) Can Qian's appeal request be fully supported?Why?
1.3 Case Study: Application of the Extended Working Hours System1
l. Background information:
In order to expand production, an enterprise in Shijiazhuang decided to implement a "voluntary overtime" plan by the board of directors. The company adds 2 hours to the original 8 hours of production time per day, and the monthly bonus for those who are unwilling to work overtime is halved. Overtime pay is calculated at 10 yuan per hour. After the implementation of this plan, many factory workers enthusiastically signed up. However, the district labor inspection brigade issued a rectification notice requiring the company to stop this practice. In this regard, the company believes that overtime is voluntarily participated in by employees, which can help employees increase their income, and working 2 hours more a day will not harm the health of employees. Employees also think that they will find part-time jobs in their spare time after work, increase their income, get more bonuses, and now they will work overtime in the factory, killing two birds with one stone.
2. Questions: 1) What regulations are violated by the content of the company's "voluntary overtime plan"?Is the payment of labor remuneration legal by the enterprise?Is it against the law for an enterprise to formulate a "voluntary overtime plan"?Explain why.
2) What can be done if the company needs to increase production temporarily?
1.4 Case: Application of the extended working hours system 2
1. Background information:
Mr. Xu was formerly a sales manager of a company, and the contract stipulated a monthly salary of RMB 10,000, and the company would also pay a sales commission according to a certain percentage of the sales contract amount. Mr. Xu also enjoys 10 days of paid leave per year. However, the Company did not go through the approval procedures for Mr. Xu's job position for the irregular working hours system. Mr. Xu resigned in March 2001. After settlement, Mr. Xu's salary was 70,000 yuan, and the sales commission was 204,000 yuan. However, when Mr. Xu left, the company only paid his salary and did not pay for other projects. Mr. Xu then filed a lawsuit with the Arbitration Commission.
In the arbitral tribunal, Mr. Xu demanded that the company pay sales commission and severance payments, and that the company pay overtime wages for 10 days of paid leave and 104 days of overtime work in addition to 40 hours per week, with a total of 140608 yuan of paid leave and overtime pay.
The company believes that Mr. Xu, as a senior manager, is entitled to sales commission and travel allowance, and his work is not assessed by the hour, which should be determined as an irregular work system, so it should not be counted as overtime wagesThe company admits that it has not paid the sales commission and is willing to pay it.
2. Questions: 1) Does Mr. Xu's arbitration application have a legal basis?
2) Is the company's claim that overtime wages are not paid?Why?
1.Case 5: Management of the wage system.
1. Background information:
Master Cheng joined Company A on January 1, 2003 and was engaged in the security work of the company, with a monthly salary of 1,100 yuan. Master Cheng took 10 days of sick leave in March 2008 and 8 days in April 2008 due to illness. When the company pays the salary, it pays the employee according to the time of his sick leave. Master Cheng believes that the salary paid by the company is lower than the minimum wage standard of the current year announced by **, and requires the company to pay wages according to the minimum wage standard. The company believes that Master Cheng took sick leave for 10 days and 8 days in April respectively, and according to his sick leave salary, Master Cheng's salary income is actually lower than the minimum wage, but the company's practice does not violate the minimum wage standard. The parties disagreed, and a dispute ensued.
2. Questions: 1) According to Master Cheng's situation, should the minimum wage regulations be implemented?Why?
2) If this dispute were mediated by you, what would you say?Think about it from the perspective of legitimacy and reasonableness.
1.6 Case: Guarantee and supervision of minimum wage.
1. Background information:
Xiaofan has been working in a company for more than ten years, and the last labor contract was from the end of 2008 to the end of 2015. According to Xiaofan's attendance sheet and payroll from 2014 to March 2015, she was not absent from work throughout the year, and there was a considerable amount of overtime work, the monthly wage standard was 1,800 yuan, but the overtime wage was 10 yuan per hour. Xiaofan believes that the salary paid to her by the company is lower than the minimum wage standard, and the calculation and payment standard of overtime pay is also lower than the calculation and payment standard stipulated by the state. After unsuccessful negotiations with the company, Xiaofan applied to the Labor Dispute Arbitration Commission for arbitration, demanding that the company make up the minimum wage and overtime wages from 2014 to March 2015.
2. Questions: 1) Is Xiaofan's salary determined by the enterprise legal?Why?
2) Is it legal for the enterprise to pay overtime wages at the standard of 10 yuan per hour?Why?
Background information: Company A has handled a comprehensive calculation of working hours system with the labor and social security department with a quarterly calculation cycle for some of the company's positions, and Guo's job belongs to the positions of Company A that implements the comprehensive calculation of working hours. After Company A and Guo terminated the employment relationship, Guo applied to the arbitration commission for arbitration, arguing that Company A paid 150% of the overtime wages to Guo as the calculation and payment standard, but his attendance time included the attendance on weekends, and 200% of the weekends should be used as the calculation and payment standard, so the company underpaid his overtime wages and requested that the difference in overtime wages be made up according to the 200% calculation and payment standard.
Question requirements: 1) Is Guo's reason valid?
2) Briefly describe the legal basis.
Cf. ***
1.1. Case: Handling of labor disputes.
2. Question: A: Huang and Zhangjia Hotel shall be jointly and severally liable for the loss of Lijia Hotel.
Answer: Since Zhangjia Hotel hired Huang, who had not yet terminated the labor contract with Lijia Hotel, and Lijia Hotel and Huang had a labor dispute and filed for arbitration with the Labor Dispute Arbitration Commission, the applicant, Lijia Hotel, should take Huang as the respondent and Zhangjia Hotel as the third party.
Answer: The Li Family Hotel should prepare the following main evidence: 1. Evidence of the establishment of labor relations between the Li Hotel and Huang. 2. Evidence that Huang and Li's Hotel have not terminated the labor relationship. 3. Evidence of Zhangjia Hotel's employment of Huang. 4. Evidence of the losses caused by the Li Family Hotel.
2. Question: Answer: 1. Qian has an employment relationship with a company. 2. Although the two parties have not signed a written labor contract, the employee has provided paid labor, the employer has also implemented management over the employee, and the two parties have actually performed the content of the labor contract according to the oral agreement, so the relationship between the two parties is a de facto labor relationship. 3. When dealing with such a relationship, the labor arbitration commission shall first determine the existence of the de facto labor relationship between the two parties, and determine the rights and obligations of both parties in accordance with the actual content of the relationship. Accordingly, the complainant's legitimate claim for half a year's salary was upheld. Qian's request for compensation for the loss of double the arrears of wages has no legal basis and is not supported.
A: Not all of them can be supported. If the loss reaches 1 time of the arrears of labor remuneration, the employee shall provide evidence.
l. Background information:
2. Question: A: The "Voluntary Overtime Program" is not legal. Reasons: 1. According to Article 36 of the Labor Law, the state implements a working system in which the daily working hours of workers shall not exceed eight hours and the average weekly working hours shall not exceed forty-four hours. As a result, the unit worked 2 hours of overtime per day in excess of the statutory time limit. 2. According to Article 41 of the Labor Law, if an employer needs to extend its working hours due to production and business reasons, the extended working hours shall not exceed three hours per day but shall not exceed thirty-six hours per month under the condition of ensuring the health of the workers. Therefore, the practice of working overtime of two hours per day is contrary to the benchmark of the Labour Code. 3. Paragraph 3 of Article 44 of the Labor Law stipulates that in any of the following circumstances, the employer shall pay the employee a wage remuneration higher than the wage for normal working hours according to the following standards: if the employee is arranged to work longer hours, the employer shall pay a wage remuneration of not less than 150% of the wage;The remuneration of 10 yuan per hour obviously does not meet the standard of 150. Therefore, it is also a violation of the law in terms of remuneration for work. 4. Overtime is voluntary for employees, but the provisions of the Labor Law are the baseline of labor standards and have mandatory force, and the compulsory force of the Labor Law reflects the oblique protection of workers, and the labor standards set by employers and workers should be equal to or higher than the benchmark level, otherwise it is illegal. Moreover, the practice of halving corporate bonuses is also against the law.
A: Overtime work is arranged in accordance with the provisions of the labor law.
2. Question: Answer: 1. The two parties have reached an agreement on the sales commission and should be fulfilled. Mr. Xu's claim has a legal basis. 2. Mr. Xu's position implements a standard working hour system, and the company has stipulated paid holidays, so the paid holidays and 104 days of overtime wages advocated by Mr. Xu should be paid in accordance with the law. 3. Mr. Xu's resignation in 2001 should be governed by the relevant provisions of the Labor Law, and the company has no obligation to pay severance payments. There is no legal basis for Mr. Xu to demand severance from the company.
A: The company's claim that Mr. Xu belongs to the irregular working hours system cannot be established. 1. Irregular working hours must be approved by the labor and social security department. 2. The irregular working hours without the approval of the labor department are not established, and Mr. Xu should implement the standard working hours system. 3. According to the provisions of China's labor law, there is no causal relationship between the level of wages and whether the irregular working hours system is implemented.
1.Case 5: Management of the wage system.
2. Question: Answer: According to the actual situation of Master Cheng, the minimum wage regulations should be applied Reasons: 1. The minimum wage regulations are mandatory and should be implemented regardless of whether they take sick leave or not. 2. However, the minimum wage standard is not applicable to Cheng Master, and in accordance with the minimum wage regulations of the state and the city, the worker provides the applicable minimum wage standard for normal labor. Since Master Cheng took sick leave for 10 days and 8 days in April 2008 respectively, he did not provide complete normal labor, and was paid according to the sick leave salary, which was in accordance with the law.
Answer: If this dispute is coordinated by me, I will handle it in accordance with the principles of legality and reasonableness: 1. Explain to Master Cheng the relevant content of the national and municipal minimum wage regulations. 2. If there are difficulties in life due to Master Cheng's sick leave in March and April, it is recommended that the company's labor union give a certain hardship subsidy.
2. Question: A: Partially legal. January-March 2014, legal. From April 2014 to March 2015, it was illegal.
A: Not legally. January-March 2014: 1620 2175/8*1.5=13.79 yuan, so the 10 yuan standard is not legal;April 2014 to 2015: 1820 2175/8*1.5=15.7 yuan, so the 10 yuan standard is not legal.
Background Information: Question Requirements:
Answer: Guo's reason is not valid.
2) Briefly describe the legal basis.
Answer: 1. Company A has applied to the labor department for the approval procedures for comprehensive calculation of working hours, and has been approvedGuo's position belongs to the comprehensive calculation of working hours of Company A, so Guo's overtime wages should be calculated and paid in accordance with the relevant standards of the comprehensive calculation of working hours system. 2. In accordance with the relevant provisions of the Interim Provisions on Wage Payment of the former Ministry of Labor and the Measures for the Payment of Wages by Enterprises of Shanghai, there are only two standards for calculating and paying overtime wages under the comprehensive calculation formula system: overtime work on holidays shall be calculated and paid according to 300%;Overtime at other times will be calculated at 150%.