The job seeker complained: the "liquidated damages for settlement" agreement signed with the employer was invalid; the employer complained: in addition to the loss of talents, the settlement index was also lost——
How to make up for the unit loss after getting the account
Our reporter Rand Hua
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Settling in Beijing and Shanghai upon graduation is the primary condition for many graduates to choose an employer.
Employers can handle settlement, and often agree on service years and liquidated damages.
So, are account liquidated damages valid?
How to choose between the demands of workplace mobility and compliance with professional integrity?
As the graduation season in 2022 draws to a close, the first-tier cities in Beijing, Shanghai and Guangzhou, especially Beijing and Shanghai, have become the primary condition for many graduates to choose employers.
Employers can apply for settlement, but most of them will stipulate the service period and corresponding liquidated damages in the agreement. Many job seekers "change jobs" within the agreed period and often have disputes with the employer.
Job seekers complained: the "liquidated damages for settlement" agreement signed with the employer was invalid; the employer complained: the front foot took the hukou, and the back foot changed jobs, not to mention the loss of talent, and the loss of "precious" settlement indicators.
In the service agreement signed by the employer and the job seeker, is the "liquidated damages for settlement" legally valid?
How to choose between the demands of workplace mobility and compliance with professional integrity?
"Settlement liquidated damages", the clause itself is invalid
On July 16, Zhao Wei (pseudonym), who works at a scientific research institute in Beijing, posted a text on a social platform to describe his troubles: "I graduated last year and set my mind to settling in Beijing as a freshman. I don't like my current job, and I have to pay the unit's 'liquidated damages' 200,000 yuan if I leave the company. Can I pay less if I go to labor arbitration?"
Zhao Wei's confusion is not an isolated case.
In recent years, there have been many cases of disputes arising from unit claims for "liquidated damages" after changing jobs after obtaining a household registration.
In June 2017, Mr. Li joined a construction company after graduation. When the two parties signed the labor contract, it was agreed that the construction company would handle the settlement for Mr. Li in Beijing. Mr. Li guaranteed that the minimum service period in the construction company would be 5 years. The reason is that the company terminates the labor contract, and the construction company shall be paid liquidated damages according to the unfulfilled service period × 30,000 yuan/year.
In December of the same year, Mr. Li obtained a Beijing hukou and resigned in April of the following year.
The construction company took Mr. Li to court and demanded that he pay 130,000 yuan in liquidated damages.
After hearing, the court held that the liquidated damages clause agreed by Mr. Li and the construction company violated the relevant provisions of the Labor Contract Law and should be invalid.
However, in many such cases, not all are as "lucky" as Mr. Li.
On June 3, 2019, Ms. Yang joined a life insurance company in Chaoyang District, Beijing.
On August 21, 2019, the two parties signed the "Agreement" and agreed that the company will handle the settlement of Beijing for Ms. Yang and provide follow-up related household registration services. Ms. Yang promises the company to serve for 3 years, and if violated, she will pay the company 300,000 yuan. The compensation will be reduced by 100,000 yuan every year.
After obtaining the account, on September 17, 2020, Ms. Yang submitted her resignation because the company's salary did not meet the requirements.
The two parties disagreed on the amount of compensation, and Ms. Yang was brought to court by the company, demanding that she pay 200,000 yuan in compensation.
The Chaoyang District People's Court of Beijing held that the agreement on service period and liquidated damages or other damages in the nature of liquidated damages agreed by the two parties was invalid, and the employer's claim for damages for breach of contract against the laborer based on this, shall not be supported in accordance with the law.
However, based on the principle of good faith and the reality of the scarcity of household registration indicators in Beijing, Ms. Yang did violate the principle of good faith and should make certain compensation for the losses caused by the company.
In the end, the court ordered Ms. Yang to compensate the company for economic losses of 20,000 yuan.
"Speed of Light" job-hopping, the blame for dishonesty cannot escape
Chen Yitong, a lawyer from Zhejiang Feike Law Firm, told the "Workers Daily" reporter that in recent years, the phenomenon of "lightning" job-hopping has become more and more frequent. , found that the service agreement based on the hukou agreement was invalid, but based on the principle of good faith, the laborer was determined to be liable for compensation. Most of them determined that the laborer violated the good faith and caused losses to the employer and compensated a certain amount of money."
This means that job seekers who want to “flash out” after obtaining their hukou and seek jobs with higher salaries or prefer jobs face the risk of violating professional integrity.
Li Li, a lawyer at Beijing Shanggong (Shanghai) Law Firm, said that the Shanghai court does not currently support "liquidated damages" but supports compensation for losses if employees violate the "settlement agreement" and leave early.
Yang Guoqing, a member of the Professional Committee of Employment Guidance and Career Introduction of the Shanghai Employment Promotion Association, told reporters that in the first-tier cities of Beijing and Shanghai with higher hukou threshold and higher value, the system design that employers have a greater weight in the conditions for graduates to settle down is a certain defective.
"The unit is dynamic and can be changed at any time due to employee resignation, while the hukou is static. There is an entry but no exit mechanism. Once settled, it can remain permanently unchanged." He analyzed that graduates often choose a career for the first time. Priority is given to selecting units that have settlement indicators or are more conducive to settlement, at the expense of income, industry and other conditions.
Once they are employed and settled, individual graduates may choose to change jobs in pursuit of higher income and better industries, sometimes even at the risk of breaching the contract, thus achieving the result of "having both."
To solve the dilemma, the long-term strategy is even more outside the law
Tang Shuyuan, a teacher of the Law Department of Shanghai Sanda College, said in an interview with reporters, "Although the law does not support the liquidated damages clause for settlement, the handling of household registration also has certain costs and costs for the unit, and it is also a violation of good faith for workers. Therefore, the laborer needs to make corresponding compensation for the loss of the employer.”
Deng Zhidong, a senior human resources engineer, told reporters, "It is not the employer's legal obligation to go through the procedures for settlement in first-tier cities, but a special treatment provided by the employer to the laborer. If the two parties agree on the service period based on this, they should uphold honesty and integrity. The principle of credit and the spirit of the contract, and consciously perform the contract.”
In the view of scholar Shi Yizhe, "For employers, legal procedures are the most reliable solution. For employees, unilateral breach of contract is not honorable, and this is definitely not a plus for personal reputation and future development in the industry. Items need to be carefully weighed.”
Yang Guoqing said, "To solve this dilemma, employers can increase the punishment for breach of contract, and graduates also need to strengthen their cherishing and awe of their first jobs, but the fundamental solution is system reform, that is, reducing the ability of employers to attract talents. The weight of time settlement.”
"Currently, employers cannot keep employees stable by relying on household registration, which forces employers to cherish their talents even more, including introducing suitable graduates instead of unilaterally pursuing 'high consumption' of talents, and providing employees with appropriate treatment and conditions , to provide good expectations and prospects for the development of employees. For graduates, they should also abide by professional integrity, and do not easily breach the contract after choosing a career. Once a breach of contract, they will not only compensate the employer for losses, but also face factors such as poor reputation in the workplace and unfavorable backtracking. ."