29 minor violations in the field of human and social security in Beijing may not be subject to administrative penalties
Including extending the working hours of workers, etc.; for minor violations of the law, the violations should be corrected promptly after education and rectification, the implementation of "one case, three books"
The Beijing Municipal Human Resources and Social Security Bureau recently took the lead in formulating and issuing the "List of Non-Administrative Penalties for Minor Violations (First Edition)" in the field of human resources and social security. The 29 administrative penalties included in the list are subject to minor violations. If the illegal behavior is corrected in time after education and rectification, the "one case, three books" shall be implemented, that is, the employer signs a letter of commitment to abide by the law, the human resources and social security department issues a labor security supervision proposal, and prepares a decision not to impose an administrative penalty. Tolerant and prudential supervision, and promote user units to abide by the law and integrity.
No penalty for minor violations must meet clear conditions
If minor violations are corrected in a timely manner through education and rectification, the "one case, three documents" shall be implemented, that is, the employer signs a letter of commitment to abide by the law, the human resources and social security department issues a labor security supervision proposal, and makes a decision not to impose an administrative penalty. Through the implementation of inclusive and prudent supervision, the user units are encouraged to abide by the law and be honest.
The "List" covers multiple administrative penalties such as labor contracts, working hours, employment management, labor dispatch, human resources market, professional capacity building, social insurance, labor security supervision and so on.
The following conditions must be met for the application of non-administrative penalties: the number of persons involved in the illegal act does not exceed the set standard, no violation of the same regulations within one year, no records of investigation and punishment, no harmful consequences, active rectification or an administrative agency to order (time limit) correction deadline Internal corrections, etc.
The reporter was informed that the illegal situations in these lists included "employers recruiting people without legal identity documents" and "Chinese educational institutions issued false enrollment brochures or enrollment advertisements to defraud money."
The list also clearly stipulates the circumstances under which administrative penalties are not imposed. For example, for Chinese educational institutions to issue false enrollment brochures or enrollment advertisements to defraud the law, the applicable circumstances for non-penalty shall also meet the following conditions: 1. No illegal income 2. There is no investigation record of violation of the same law in the first twelve months from the date of inspection; 3. No harmful consequences have been caused; 4. Active rectification or correction within a time limit ordered by the administrative agency (time limit).
For another example, for the acts of engaging in professional intermediaries without permission and registration, according to the "Interim Regulations on the Human Resources Market", a fine of 10,000 to 50,000 yuan may be imposed.
However, from the perspective of law enforcement, the subjects of such violations are mostly small and medium-sized enterprises and innovative enterprises, and their main business is to promote employment through market means.
If the above behavior does not cause harmful consequences objectively, once an administrative penalty is imposed, it will have a greater impact on enterprise development.
Therefore, the applicable circumstances for non-administrative penalties include: no illegal income, no harmful consequences, compliance with the statutory conditions for engaging in professional intermediary activities, and the willingness to continue business, and the application for a human resources service license within the prescribed time limit.
The investigation of minor violations requires legal procedures such as filing a case
It is reported that the investigation and punishment of minor violations by human resources and social security departments is the same as handling other illegal cases. It still needs to go through legal procedures such as filing, investigation and evidence collection, and notification. The collection of evidence and the fixed standards are also the same as those in other cases of violations. Consistent.
This not only guarantees the authority and seriousness of labor security laws, regulations, and rules, but also guides and promotes employers to consciously abide by laws, regulations, and rules, so that employers can feel "warm law enforcement", and provide fault-tolerant support and Expansion capacity.
At the same time, the Municipal Bureau of Human Resources and Social Security has made it clear that both tolerance and prudence should be emphasized as well as strict supervision, and the rule of law should be consistent with excessive punishments, and the rule of law should be combined with leniency and strictness. There is no administrative penalty for minor violations of the law, but it does not mean indulgence, but to point out the problems of the employer, order the employer to correct the violation, and put forward guiding suggestions for compliance with labor security laws, regulations and rules.
For employers involving "new technologies, new industries, new business formats, and new models," inclusive and prudent supervision shall be implemented in accordance with the principle of encouraging innovation.
No administrative penalties will be imposed on minor violations, and general violations will be punished as appropriate. However, we will maintain a "zero tolerance" attitude towards illegal behaviors such as wage arrears, and severe violations of the prohibition of child labor or serious violations will be severely punished according to law .
After the implementation of the "List", the city's human resources and social security departments will accurately grasp the standards of law enforcement, strengthen legal review and supervision and management of cases of minor violations that do not impose administrative penalties, and resolutely correct cases of unclear facts or procedural violations that do not impose administrative penalties ; In accordance with the "reform, abolishment, and interpretation" of laws and regulations, we will continue to improve the content of the "List", implement dynamic management of the "List", and promote the integration of the legal effects of labor security supervision and law enforcement with the social effects.
List of non-administrative penalties for minor violations of human resources and social security in Beijing
(First edition) Excerpt
Illegal act
The employer violates the regulations and uses hepatitis B virus serological indicators as the physical examination standard
The employer violates the "Labor Law of the People's Republic of China" and extends the working hours of the worker
Basis for illegal acts
Article 19, Paragraph 2 of the "Provisions on Employment Services and Employment Management": Employers shall not force the use of hepatitis B virus sera except for work that is prohibited by national laws, administrative regulations, and the health administrative department of the State Council from carrying out hepatitis B pathogen carriers. The academic indicators are used as physical examination standards.
Article 3 of the "Provisions of the State Council on Working Hours": The state implements a working hour system in which employees work 8 hours a day and an average of 40 hours a week.
Article 38 of the "Labor Law of the People's Republic of China": Employers shall ensure that employees have at least one day off each week.
Article 41: Employers may extend their working hours after consultation with the labor union and workers due to production and business needs, generally not exceeding one hour per day; those who need to extend their working hours due to special reasons are required to ensure the health of workers The extended working hours shall not exceed 3 hours per day, but shall not exceed 36 hours per month.
Article 43: Employers shall not extend the working hours of workers in violation of the provisions of this law.
Basis for punishment
Article 68 of the "Regulations on Employment Services and Employment Management": The employer violates the provisions of Article 19, paragraph 2 of these regulations, outside the work positions prohibited by national laws, administrative regulations and the health administrative department of the State Council from carrying out hepatitis B pathogen carriers When recruiting personnel, if the hepatitis B virus serological index is used as the medical examination standard, the labor and social security administrative department shall order corrections and may impose a fine of less than 1,000 yuan; if any damage is caused to the party, it shall be liable for compensation.
Article 25 of the "Labor Security Supervision Regulations": If the employer violates the labor security laws, regulations or rules to extend the working hours of the workers, the labor security administrative department shall give a warning and order corrections within a time limit. A person shall be fined if it is calculated based on the standard of more than 100 yuan and less than 500 yuan.
Non-penalty applicable circumstances
At the same time have the following conditions:
1. The illegal act involves less than 3 persons;
2. There is no investigation record of violation of the same law in the first twelve months from the date of inspection;
3. No harmful consequences were caused;
4. Take the initiative to make corrections or make corrections within the deadline (time limit) ordered by the administrative agency.
At the same time have the following conditions:
1. The number of people involved accounts for less than 10% of the total number of employees;
2. Illegal extension of working hours accumulatively less than 2 months;
3. Daily extension of working hours exceeds the national legal standard by 1 hour, or monthly extension of working hours exceeds the national legal standard by 10 hours;
4. There is no investigation record of violation of the same law in the twelve months before the inspection date;
5. No harmful consequences were caused;
6. Take the initiative to make corrections or make corrections within a deadline (within a time limit) ordered by the administrative agency.
Doubt 1
Will it lead to random law enforcement?
The list can be followed by rules to prevent random law enforcement
According to the relevant person in charge of the Beijing Municipal Bureau of Human Resources and Social Security, the "List" mainly involves 29 administrative penalties such as labor contracts, working hours, employment management, labor dispatch, human resources market, professional capacity building, social insurance, labor security supervision, etc., adding " "Minor" violations shall not be subject to administrative penalties for minor violations that have not caused harmful consequences and are promptly corrected.
Because illegal activities such as wage payment and protection of special groups have greater social impact and serious consequences, and the requirements of laws, regulations and rules are stricter, the "List" does not apply to illegal activities such as wage payment and protection of special groups. .
"The "List" is carefully selected from the administrative penalty powers of the Beijing Municipal Bureau of Human Resources and Social Security, and used in conjunction with the administrative penalty criteria, ranging from no administrative penalty for minor violations, discretionary penalties for minor and general violations, to serious violations Severe punishments, ensure that there are rules to follow, and prevent arbitrary law enforcement." The person in charge said.
Doubt 2
What violations must be punished?
Maintain "zero tolerance" for serious violations of wages in arrears and violations of the prohibition of child labor
So, what is the principle of no administrative penalty for minor violations?
The person in charge stated that no administrative penalties will be imposed on minor violations, and the principle of equal penalties, lenient and strict, and the combination of punishment and education will be adhered to. For employers involving "new technologies, new industries, new formats, and new models," In accordance with the principle of encouraging innovation, implement inclusive and prudent supervision, balance the development interests of employers and the legitimate rights and interests of employees, no administrative penalties for minor violations, discretionary penalties for general violations, and serious violations of wages in arrears and violations of the prohibition of child labor The behavior maintains "zero tolerance" and severe penalties are imposed in accordance with the law.
Guide and promote employers to consciously abide by labor security laws, regulations and rules, and operate in good faith in compliance with the law, so that employers can feel "warm law enforcement" and create a healthy and good business environment.
At the same time, is there no administrative penalty for minor violations included in the "List"?
The person in charge stated that the "List" lists illegal acts, legal basis, and applicable conditions for non-penalty. Minor violations included in the "List" must also meet the applicable conditions before administrative penalties are not imposed. "List", but minor violations that do not meet the applicable conditions are still subject to administrative penalties in accordance with the law.
Beijing News reporter Wu Wei