February** Dynamic Incentive Program
Case Seventy-Six:
When: Xu Lu, hello. I would like to ask you a question.
Xu: Please speak.
When: My company only signed a probationary labor contract with me to stipulate a probationary period of three months, is this legal?
Xu: If it is illegal and only stipulates a probationary period, the probationary period is the term of the labor contract.
When: What about the second time the company agreed with me on a probationary period?
Xu: The probationary period cannot be agreed upon for the second time the labor contract is signed.
When: Oh. Okay, I see, thank you Xu Lu.
Case Seventy-Seven:
When: Xu Lu, hello. I have a question for you.
Xu: Hello, please speak.
When: I belong to a special type of work in the company, the company trained me, and agreed with me for a five-year service period, but the labor contract was signed for three years, and now the labor contract has expired. The company didn't mention the renewal either. Is it possible that I will not have to fulfill the remaining two years of service?
Xu: If the contract is terminated at the expiration of the contract, it is equivalent to the company's waiver of the remaining service period, and the employee shall not be able to seek recourse to the employee for compensation for the service period. You don't have to fulfill the remaining two years. Of course, some companies have agreed with employees that if the labor contract expires but the service period does not expire, the labor contract will be extended until the service period expires. Therefore, it is best to check whether there is a similar provision in the employment contract or service period agreement.
When: Okay. Xu Lu, I'll go back and check again. Thank you.
Xu: You're welcome.
Case Seventy-Eight:
When: Xu Lu, hello. I have a question for you.
Xu: Hello, please speak.
When: Can the company arbitrarily agree on liquidated damages? For example, if I violate the company's rules and regulations, I will be considered a breach of contract, and I will have to bear how much liquidated damages. Can a company make a similar agreement?
Xu: Of course not, there are only two situations in which a company can agree on liquidated damages in the labor law, one is the liquidated damages during the service period, that is, if you violate the service period agreement, you must bear the liquidated damages, and the amount borne shall not exceed the training fee. The other is non-compete liquidated damages, if it is found that you went to a competitor company, you can be required to bear liquidated damages according to the non-compete clause. In addition to this, employees cannot be held liable for other types of liquidated damages.
When: Oh, I see, thank you Xu Lu.
Xu: You're welcome.
Case Seventy-Nine:
Dang: Hello Xu Lu, I have a question for you.
Xu: Hello, please speak.
When: I want to resign, but the company does not say that I am a confidential post, and I will not be allowed to leave until I go through a three-month declassification period. Is this legal?
Xu: Did you give a month's notice of resignation?
When: yes. The unit said no.
Xu: As long as you fulfill the obligation of one month's notice in advance and handle the handover of work, you can ask the company to issue a resignation certificate and leave. The rules for the declassification period are no longer valid. Employees are not required to fulfill the so-called declassification obligation. However, the confidentiality obligation must still be fulfilled until the trade secret is made public, such as applying for a patent. If you are still in a state of confidentiality but cause losses to the company because of your leakage, the company can require you to compensate.
When: So, Xu Lu, my normal resignation will not be affected, right?
Xu: Yes. Dang: Thank you.
Case 80: When: Hello Xu Lu, I have a question for you.
Xu: Hello, please speak.
When: I signed a labor contract with the company at the beginning, and there was a non-compete agreement attached to the labor contract, which stipulated that the restriction period was three years, and the standard of monthly economic compensation was 30% of the monthly salary, and if I was found to be self-employed in the competitive business or operated a competitive business for the new company, I would have to bear 1 million liquidated damages. Xu Lu, do you think there is any problem with this non-compete agreement?
Xu: Yes, there is a problem, first of all, the non-compete period is up to two years. Excess portion is invalid. Secondly How much do you earn per month?
When: 2w. Xu: What is your position?
When: Marketing Specialist. Maybe the company is worried that I will take away customer resources. Xu Lu, the company has not given me a limited compensation for three months. What should I do if I ask for it from the company and they don't give it?
Xu: Then you can terminate the non-compete agreement and ask the company to pay back the three months' compensation.
When: I send a termination letter to the company and ask the company for three months of compensation? What if the company does not agree to terminate and does not pay compensation?
Xu: Then go to labor arbitration. Both requests should be supported.
When: Okay, then I'll do it, thank you Xu Lu.
Xu: You're welcome.