Just after the Spring Festival, in the discussion on the "year-end bonus" on social platforms, "not getting the year-end bonus" has become a "pain point" for many workers——
Can employees get year-end bonuses "evaporated" due to the epidemic?
Our reporter Shi Lanna
reading tips
Because employers were hit by the epidemic, after the Spring Festival, some workers did not get year-end bonuses as they wished.
Are year-end bonuses mandatory?
Can the year-end bonus that "shrinked" or even "evaporated" due to the epidemic be returned?
The lawyer said that the law does not mandate that employers must pay year-end bonuses, and whether they are issued or not depends on whether there are agreements or rules and regulations.
After the Spring Festival, a 27-year-old teacher from an English training institution, Wen Wen, was looking forward to receiving the year-end bonus from the previous year.
Wenxin is mainly responsible for English training for studying abroad.
Affected by the epidemic, the number of people studying abroad has been greatly reduced, and the operation of her institution has also been in trouble.
Before the epidemic, at the end of the year and the beginning of the year, Wenxin, like other employees, could receive a year-end bonus of tens of thousands of yuan.
In the past two years, everyone has been comforting each other: "I don't know how long the company can last. It's not easy to pay salaries normally. How dare you expect year-end bonuses."
In the discussion on the "year-end bonus" on social platforms, "not getting the year-end bonus" has become a "pain point" for many workers.
Should I get a year-end bonus?
Can the year-end bonus that has "shrinked" or even "evaporated" due to the epidemic and other reasons come back?
Whether it is salary or benefits is easily controversial
Recently, the "2021 White-collar Year-end Award Research Report" released by Zhaopin Recruitment shows that 36.6% of white-collar workers can get year-end awards in 2021, which is an increase from 27.6% in 2020 and 33.3% in 2019, but still low. 55.2% in 2018 and 66.1% in 2017.
According to the survey, 68.9% of white-collar workers believe that year-end bonus is the reward they deserve for a year of work, 36.1% of white-collar workers believe that year-end bonus is recognized and respected by the enterprise, and 31.4% believe that year-end bonus is a material means to motivate enthusiasm for work.
The reporter learned that some units refer to the year-end bonus as the 13th salary, some units refer to it as the goal completion bonus, year-end supplementary funds, etc., and the employers issue various incentives such as shopping coupons, stocks, and options instead of cash.
Due to the different names and unclear nature, some employers and workers have a biased understanding of the year-end bonus, which leads to disputes.
"If you can't get the year-end bonus, whether you can 'protect your rights' against the employer depends on whether the non-issue of the year-end bonus violates the worker's right to remuneration. Further, it is necessary to judge whether the nature of the year-end bonus is a part of the worker's salary or simply Welfare." Nie Yangcheng, a lawyer at Beijing Jinzhong Law Firm, said that some companies distribute prizes in the form of lottery at annual meetings, which are random, and these rewards should be regarded as welfare.
As for the year-end bonuses and thirteenth salaries that are linked to the company's operating conditions, employees' personal work performance and actual performance, Nie Yangcheng believes that these belong to the category of bonuses. belong to wages.
However, the law does not mandate that employers must pay year-end bonuses to workers. Whether or not to pay them depends on whether the employer and the worker have agreed on this, and secondly on whether the company's rules and regulations have such stipulations.
Claims that year-end bonuses must be supported by evidence
"The plaintiff's salary is based on the post salary system. The company's "Remuneration Management Regulations" clarifies that the salary of employees is based on the distribution method of salary + bonus, and the post salary and allowances are determined according to the position. The bonus is after the actual work is assessed. The plaintiff can claim the bonus from October 20, 2020 to December 31, 2020.” Recently, Liu Gui, an employee of a refining and chemical company, filed a lawsuit regarding the year-end bonus, which was approved by the court. support.
Because the company's "Remuneration Management Regulations" clearly stipulated the content of bonuses, the court required the company to pay year-end bonuses to workers.
However, the reporter found in the interview that many workers faced the situation that the labor contract did not stipulate the matters related to the year-end bonus, and the company's rules and regulations did not stipulate the year-end bonus.
In judicial practice, it is often difficult to obtain legal support for year-end bonus claims without evidence.
In November 2020, due to the impact of the epidemic, Liu Han's Tourism Investment Co., Ltd. was greatly affected.
In March 2021, Liu Han resigned and advocated a total of 150,000 yuan in year-end bonuses from January 2020 to March 2021.
The court held that the year-end bonus should be a matter determined by the company itself. There is no evidence to show that the company's rules and regulations contain clear and specific provisions for the accounting and distribution of the year-end bonus, and there is no sufficient evidence to show that the company has determined the specific amount of the year-end bonus in 2020. , so Liu Han's request is not supported.
Gong Xue, 34, also encountered the same situation.
She worked as a customer service supervisor for a courier company for 7 years.
In January 2021, Gong Xue resigned after negotiating with the company and advocated the 2020 year-end bonus.
The court held that the labor contract signed by the two parties did not stipulate that the company must issue a year-end bonus to Gong Xue, and did not support her request.
He Jianchi, a lawyer from Zhejiang Sida Law Firm, believes that, in addition to the salary bonuses separately agreed by both parties in the labor contract or salary confirmation form, the employer has the right to determine the operating conditions of the unit, the job position and performance of the employees, etc. Comprehensive factors, independently determine whether various bonuses such as year-end bonuses are issued, the conditions and standards for issuance.
Xiao Wu works in a transportation engineering company. Due to the poor performance of the company due to the epidemic last year, the year-end bonus has come to nothing.
He was puzzled: Will the year-end bonus "evaporated" due to the epidemic be returned?
"As a force majeure, the epidemic has had a great impact on many companies across the country. It is not enough to require companies to issue year-end bonuses this year just because they have been issued over the years." He Jianchi said.
Having autonomy does not mean being arbitrary
"Although employers have certain autonomy in issuing year-end bonuses, the exercise of such autonomy cannot be done arbitrarily," said He Jianchi.
"The unit deducts 10% of our performance salary as the end-of-year bonus." When the year-end bonus was issued, Tu Hong, who worked in a private company, found that the 5,000 yuan year-end bonus deducted from the monthly performance salary actually "shrinked" to 1,000. Yuan, and, "This 1,000 Yuan will also be charged a management fee."
Deduct a portion of the workers' due wages as year-end bonuses, distribute year-end bonuses by lottery at the annual meeting, while ordinary employees only have "sunshine" 100-yuan red envelopes, and refuse to issue year-end bonuses on the grounds that they are unqualified in the assessment, but cannot get the assessment. Basis, replacing bonuses with company products, illegally dismissing employees before issuing year-end bonuses, and refusing to issue year-end bonuses on the grounds that they have resigned... In reality, some employers rely on the autonomy to issue year-end bonuses and act willfully.
"If the distribution standards, conditions, and time of year-end bonuses are determined through labor contracts or rules and regulations, they should be implemented in accordance with the regulations, and cannot be changed or cancelled unilaterally at will. To change the content of the labor contract, it is necessary to negotiate with the workers. Agree." Nie Yangcheng reminded.
Previously, the Beijing No. 2 Intermediate People's Court had sorted out cases involving year-end bonuses.
The results show that most of the workers have a weak awareness of evidence when claiming the year-end bonus. They can only say that the two parties have "orally agreed", but cannot produce valid evidence, so the winning rate is low.
In this regard, He Jianchi suggested that if the employer has verbal commitments on remuneration and year-end bonuses, workers should try to require the verbal agreement to be written into a written labor contract, and at the same time pay attention to retain relevant evidence, such as labor contracts, reward and punishment systems, bonuses. Issue rules and performance appraisals at ordinary times, etc.
(Some respondents use pseudonyms)