Source: Rule of Law Daily
Wen Yuanhao, reporter of this newspaper
"If you have to take pictures every day at work, how can you have time for work?" Recently, Liu Lin (pseudonym), who works in Beijing, received a new rule from the company: 24 to 48 work photos must be uploaded to the work group every day. Liu Lin and many colleagues were quite puzzled by this.
At first, Liu Lin only felt that it was easy to leak personal privacy, and did not want to post photos in the group. But after the "dialing" of other colleagues, he suddenly realized that the company's move may be to force employees to leave voluntarily. It turned out that the company had told Liu Lin and several others in the first half of this year that they wanted to pay a sum of money to terminate the labor contract, but because the compensation was too low, Liu Lin and others refused.
Liu Lin's experience has been encountered by many professionals. A reporter from "Rule of Law Daily" recently interviewed and learned that in order to reduce costs, some employers have played tricks when laying off employees, and forced employees to leave their jobs voluntarily through unreasonable job transfers and salary reductions, marginal snubbing, etc. Compared with employers, many workers are mostly in a weak position, and because of the difficulty and high cost of rights protection, they often have to choose to give up rights protection.
A number of experts interviewed believe that the current labor laws and regulations lack a strong and effective regulatory means for enterprises to force people to leave. In the practice of labor relations, it is also very difficult to determine that an employer maliciously makes work adjustments to force employees to leave their jobs, and it is urgent to improve relevant legal norms and system design. At the same time, it is recommended to strengthen the role of trade unions, effectively safeguard the rights and interests of employees, expand the scope of labor inspection, and strengthen the initiative of supervision and law enforcement.
Experts called for strengthening the review of the legality of coercive means in the handling of disputes. It is recommended that the Supreme People's Court, together with human resources and social security departments and trade union systems, jointly publish typical cases and guiding cases to guide practice.
Significantly reduced salaries and transferred from posts
Disguised forced employees to leave
Lin Mei (pseudonym), who has worked in a hotel in Fuzhou, Fujian Province, for five years, was also forced to leave: a few months ago, she had to choose to leave because the hotel was transferred for no reason.
When he left, the hotel HR (human resources) gave Lin Mei a template of the resignation certificate, in which the reason for leaving said "voluntary resignation due to personal reasons". The hotel HR said that if she chose to "voluntarily leave", the hotel would pay her an extra 3 months' salary because she voluntarily gave up her rights protection. If she chooses to fill it out truthfully, it means that she will not only receive any compensation in the short term, but also face up to 60 days of labor arbitration or longer legal action.
After some thought, Lin Mei finally reluctantly submitted the certificate with "voluntary resignation".
It is understood that the means used by enterprises to force people to leave their jobs include sharp salary cuts, transfer from posts, change of work location, excessive work tasks, etc., and even workplace PUA and other degrading methods, the purpose of which is to circumvent the law that enterprises should pay corresponding economic compensation for dismissing employees.
How do you view the various forms of forced employees to leave?
According to the professors of the School of Labor Economics of Capital University of Economics and Business, the above behavior clearly violates the provisions of the labor law. Means such as salary reduction, transfer from post, change of work location, etc. involve changes to labor contracts, and according to the provisions of the Labor Contract Law, in principle, consensus is required for changes to labor contracts. Therefore, except for statutory circumstances, if an enterprise unilaterally changes the labor contract, it is a violation of the law. Even under statutory circumstances, an enterprise enjoys the right to unilaterally change the labor contract in accordance with the law, such as Article 40 of the Labor Contract Law, which stipulates that it is not competent for job transfer, and there are reasonable restrictions on the impact on the rights and interests of employees after the enterprise unilaterally changes the labor contract.
"Taking Liu Lin's experience as an example, although the situation is more complicated in practice, combined with the situation of the problem, it can be presumed that the company has the malice of forcing employees to leave." Although enterprises have the right to instruct and order, can determine the work tasks of employees, and some enterprises even stipulate in the labor contract that employees have the obligation to obey, this work task is still limited by job responsibilities, and there are reasonable requirements, and the purpose and quantity of 24 to 48 work photos required by enterprises are not reasonable. Therefore, if an employee completes a daily work task, even if the employee fails to complete the required upload of 28 work photos, the company cannot punish him.
Lou Yu, director of the Institute of Social Law at China University of Political Science and Law and an expert in trade union theory and labor relations think tank of the All-China Federation of Trade Unions, believes that whether uploading work photos in a work group infringes on personal privacy and whether it can be determined that the employer has abused its right to operate and manage itself requires a comprehensive judgment based on the job position and the nature of the work, and cannot be generalized. According to Article 38 of the Labor Contract Law, if the rules and regulations of the employer violate the provisions of laws and regulations and harm the rights and interests of the employee, the employee may terminate the contract and the employer shall pay economic compensation to the employee.
"If the judicial authority determines that the requirement to upload work photos is illegal and harms the rights and interests of workers, the employee can be compensated financially if he is forced to leave his job. Of course, even if it is determined that the request to upload photos is legal and reasonable, the employer should ensure that the photos are only used for work management purposes and are not leaked. Otherwise, it may constitute an infringement of the individual's right to privacy and personal information. Lou Yu said.
You can't be pressured to leave
It is difficult for the judiciary to determine that it has violated the law
What is the root cause of the phenomenon of companies forcing employees to leave?
The scope believes that the main reasons for the frequent occurrence of such phenomena include: first, under the premise of strong and weak labor, the personal nature of labor relations, and the behavior of enterprises may make workers face unbearable pressure and be forced to leave; Second, from the perspective of the current system, because the enterprise trade union has not fully played its role in safeguarding the rights and interests of workers, there is no supervision and restraint mechanism for enterprises to use such "illegal means" (malicious salary reduction, transfer to force employees to leave). In hindsight, when employees are forced to "resign" because of this, judicial practice often makes it difficult to determine that the enterprise has violated the law, so some enterprises actually benefit from their illegal acts.
It is understood that the Mainland Labor Contract Law adopts the position that the cause of the employer's unilateral termination of the contract is legal, the procedure is statutory and the result is legal. The termination of the labor contract by the employer shall comply with the legal basis for negligent dismissal or no-fault dismissal, and comply with the procedures of written notification, notification of the labor union, and advance notice. When the employer terminates the labor contract without the employee's fault, it is also required to pay economic compensation according to the standard of one month's salary for each full year.
Lou Yu introduced that labor laws and regulations focus on the changes in rights and obligations and the assumption of responsibilities that occur when labor relations are established, terminated and terminated, and adopt a relatively neutral attitude towards the rights and obligations that occur in the performance of labor contracts, respect the agreement of labor and management, and prefer to resolve disputes through mediation. If the employee performs the changed contract in an implied manner, it is deemed to have agreed to the employer's work adjustment.
"If the employer takes advantage of its dominant position and deliberately makes unreasonable job adjustments, the employee has the right to refuse to perform the new labor contract, propose to leave the job and claim economic compensation from the employer." Lou Yu said that the labor contract is a kind of continuous contract, the performance period is long, and the conditions on which the contract is signed may change in the long-term performance process, and it is necessary to make a comprehensive judgment based on the job position and nature of the work, the economic environment and salary reduction, the change of position, the location of the work, whether the unit provides commuting alternatives, and the comparison between the changed work and the previous job.
Strengthen supervision and law enforcement
Build harmonious labor relations
If a company forces employees to leave, what should you do as a worker? In this situation, is leaving the company the only option?
Lou Yu believes that workers should explicitly indicate that they do not accept the new job adjustment, and apply for mediation, arbitration and even litigation without causing absenteeism. The risk of direct resignation is relatively large, and if it is determined that the employer adjusts the job normally, the employee will not be able to receive economic compensation. In addition, from the perspective of building a harmonious labor relationship, employees should not be encouraged to terminate their labor contracts directly in this way.
The scope believes that when such a situation occurs, employees will undoubtedly face greater psychological pressure, and should first consider how to relieve the pressure. For employees, if there is a trade union organization in the enterprise, they can request the assistance of the trade union organization; If a unilateral change of the labor contract is involved in violation of the law, the labor contract may be terminated on the grounds that the enterprise has violated the law or breached the contract in accordance with Article 38 of the Labor Contract Law. For unreasonable requests made by enterprises, on the basis of completing work tasks in accordance with daily requirements, the unreasonable demands may be rejected to force the enterprise to make a decision on termination, and then the termination may be confirmed to be illegal through an arbitration request.
"In the current labor laws and regulations, there is a lack of effective regulatory means for enterprises to force people to leave. In the practice of labor relations, it is also very difficult to determine that the employer maliciously made work adjustments to force employees to leave their jobs. Lou Yu said that it is necessary not only to combine the job position, work content, the qualifications of workers and their long-term performance, but also to take into account the economic situation and the adjustment of the company's business strategy.
The scope suggests strengthening the role of enterprise trade unions and giving full play to the role of enterprise trade unions in safeguarding the rights and interests of employees in the workplace; Expand the scope of labor inspections and strengthen the initiative of supervision and law enforcement, and include the above-mentioned malicious means and the possible verbal violence and harassment associated with them; In the handling of disputes, strengthen the review of the legality of coercive means.
Lou Yu suggested that the Supreme People's Court, together with human resources and social security departments and trade union systems, jointly release typical cases and guiding cases to guide practice.
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