Original title: If a "worker" fails to return to work on time, can the employer deduct wages?
Reporter Zhang Yu Correspondent Wang Jiaxuan.
It's time to start! At the end of the Spring Festival holiday, "migrant workers" have returned to work one after another, but many people have encountered difficulties in returning. If an employee fails to return to work on time, can the employer withhold wages? In order to avoid the problem of "difficulty in returning to work", can employers continue to arrange annual leave after the Spring Festival holiday? In addition, is there any legal basis for an employer to use a red envelope instead of wages? Can workers who fail to return to work in time and do not receive the red envelope for starting work claim afterwards? Recently, a judge from the Fangshan District People's Court in Beijing answered several employment questions about returning to work.
Q: If an employee fails to return to work on time, can the employer withhold wages?
Answer: If an employee is unable to return to work on time, the employer should not simply deduct wages or treat it as absenteeism, but needs to distinguish between different situations.
In the first case, the employee is unable to return to work on time, but the employee has fulfilled the leave request procedure on the grounds of personal leave. According to the Regulations on Payment of Wages, an employer may not pay wages or remuneration to an employee during personal leave. However, if the employee has completed the formalities for requesting leave, the employer should not treat it as absenteeism.
In the second case, the employee is unable to return to work on time, but requests the employer to deduct the annual leave. According to Article 2 of the Regulations on Paid Annual Leave for Employees, employees who have worked continuously for more than one year are entitled to paid annual leave. The employer shall ensure that the employee is entitled to annual leave. Employees are entitled to the same salary during the annual leave period as they would during normal work. Therefore, an employee who is entitled to annual leave in accordance with the law and is unable to return to work on time can apply for annual leave, and the employer shall pay wages and remuneration normally.
In the third case, the employee does not return to work on time, nor does he go through the leave application procedures in accordance with the employer's leave system. For such employees who "leave without saying goodbye", the employer may treat them as absenteeism, but they should do the following: first, send a notice of return to work to the employee, clarify the time of arrival, inform the employee that if there are special circumstances, he needs to go through the procedures for requesting leave, and inform him of the consequences of not returning to work within the time limit; Second, if the employee fails to return to work after the notice is issued, the decision to terminate the labor contract shall be made in accordance with the rules and regulations of the unit and the attendance provisions; The third is to mail and serve the Notice of Termination of Labor Contract to the employee, and keep the relevant evidence.
It should be noted that if the employer does not issue a notice of termination of the employment contract, it is likely that the employment relationship will continue to exist, and the employer will also have to bear legal obligations such as paying social insurance for the employee during this period.
In addition, for employees who are unable to return to work on time due to reasons other than their own, the employer may arrange for the employee to temporarily work from home if conditions permit, but the employer shall pay wages and remuneration according to normal work, and if the enterprise wants to reduce wages and remunerations, it must reach an agreement with the employees or have performed democratic procedures in advance, otherwise it may constitute an illegal wage reduction and shall bear corresponding legal liabilities.
Q: In order to avoid the problem of "difficulty in returning to work", can the employer arrange annual leave after the Spring Festival holiday?
Answer: The first paragraph of Article 5 of the Regulations on Paid Annual Leave for Employees stipulates that the unit shall make overall arrangements for the annual leave of employees according to the specific conditions of production and work, and taking into account the wishes of the employees themselves.
In other words, the employer can arrange for employees to take annual leave in a unified manner by extending the Spring Festival holiday according to the needs of production and operation. Before the start of the Spring Festival holiday, the employer shall clearly inform the employee of the annual leave arrangement, which may be announced in writing by notice, email, etc., indicating the specific date and number of days of leave, and at the same time requiring the employee to confirm and receive it. If a labor dispute arises due to taking annual leave, and the employer cannot prove that it has clearly informed the employee of the annual leave arrangement, it will bear the legal consequences of failing to provide evidence.
It is worth noting that although the employer has the right to make overall arrangements for annual leave, it should also fully consider the wishes of the employee when conditions permit. If the employee has any objection to the arrangement of annual leave, and has special reasons, he or she should also communicate and negotiate with the employer in a timely manner.
Q: If the employer distributes the red envelope on the first day after the Spring Festival, but the employee does not get it because he has not returned to work in time, can he claim it afterwards? Can an employer use a red envelope in lieu of salary or overtime pay?
Answer: "Wishing you prosperity, take the benefit." "On the first day of work after the Spring Festival, many employers will issue red envelopes to workers. However, the bonus envelope is not in the nature of salary.
Wages refer to the wages and remuneration paid by the company to employees in various forms in accordance with the provisions of the labor contract. According to Article 4 of the Provisions on the Composition of Total Wages issued by the National Bureau of Statistics, total wages are composed of the following six parts: hourly wages, piecework wages, bonuses, allowances and subsidies, overtime wages, and wages paid under special circumstances. In most cases, the red envelope is a private gift from the boss or superior, not a wage remuneration, and a personal act to encourage the worker to return to work on time.
Therefore, if the employee fails to return to work in time and does not receive the red envelope for starting work, he cannot claim his rights in this regard. It is worth noting that employers cannot give red envelopes in lieu of personal wages or overtime pay. Otherwise, the employee has the right to demand that the company pay the difference in wages and overtime pay in full and on time.
Q: If an employee voluntarily resigns before the Spring Festival holiday and fails to return to the employer in time after the holiday to complete the resignation procedures, can the employer postpone the issuance of the resignation certificate?
Answer: In this case, it is not advisable for the employer to refuse to issue a resignation certificate. According to Articles 37 and 50 of the Labor Contract Law, an employee may terminate a labor contract by notifying the employer in writing 30 days in advance. The employer shall issue a certificate of dissolution or termination of the labor contract when dissolving or terminating the labor contract, and complete the formalities for the transfer of the employee's file and social insurance relationship within 15 days. The worker shall handle the handover of work in accordance with the agreement between the two parties. Where an employer shall pay economic compensation to an employee in accordance with the relevant provisions of this Law, it shall do so at the time of completion of the work handover.
It can be seen that an employee can leave the company by giving 30 days' notice to the employer, and the employer should issue a resignation certificate in a timely manner when leaving the company, and such an obligation is only premised on the termination of the employment relationship, and has nothing to do with whether the work handover is completed. Therefore, the employer shall not refuse to issue the resignation certificate on the grounds that the departing employee has not completed the work handover. Otherwise, if the employee is unable to report to the new company and loses the new job opportunity, the company may also have to compensate the employee for the loss of unemployment.
In addition, the employee has the obligation to handle the handover of work. Even if the employee voluntarily resigns before the Spring Festival holiday, he or she should return to the employer to go through the resignation procedures after the holiday. If the employee does not return for various reasons, the employer shall communicate with the employee in a timely manner and notify the employee in writing to go through the resignation and work handover procedures in accordance with the regulations of the employer. If the company fails to go through the resignation procedures and causes losses, the company may claim compensation from the employee.
*: Beijing client.