Is it legal to get a salary cut at the bottom of the year-end assessment?
Zhao Fei
With the Spring Festival approaching, labor disputes have entered a period of concentrated outbreaks.
So, what are the practices of companies that are illegal?
As an employee, how should you protect your legitimate rights and interests such as wages, year-end bonuses, and annual leave?
Question 1
Can a unit use negotiable securities as wages?
Getting paid for your work is justified.
Labor remuneration is the price paid by laborers for labor, which is what we usually call wages.
Article 30 of the Labor Contract Law stipulates that the employer shall pay labor remuneration in full and in time to the laborer in accordance with the labor contract and state regulations.
Labor remuneration must be paid in the form of currency, and must not be paid in real objects, securities, etc. in lieu of currency.
At the same time, it should be noted that the wages paid by the employer to the workers shall not be lower than the local minimum wage standard.
In practice, when an employee requests payment of labor remuneration, the employer often defends it on the grounds that there is no labor relationship.
Zou went to a catering company as a chef in June 2019, and the two parties did not sign a labor contract.
On October 3, the store manager Li Mou gave an oral notice to dismiss Zou Mou.
Zou asked the company to pay his salary from September 10 to October 3.
The company insisted that it did not know Zou and that there was no labor relationship with him.
After the trial, the court held that the video footage submitted by Zou, the WeChat chat records with the store manager Li, and the details of bank transactions could be mutually confirmed with his statement. Although the company did not recognize the existence of a labor relationship with Zou, it failed to provide contrary evidence to refute it. Therefore, the court found that there was a labor relationship between the two parties, and the company should pay Zou a salary.
In addition to basic wages, overtime wages are also a common cause of labor disputes.
With the Spring Festival approaching, many workers are very concerned about how to calculate overtime wages during the holidays.
According to Chinese laws and regulations, under the standard working hour work system, if you work overtime on working days, you will be paid 1.5 times the overtime wages; Three times the salary.
Specifically, this year's Spring Festival statutory holiday is from February 1st to 3rd (the first day of the first month to the third day of the first day of the first month). If an enterprise that implements the standard working hour system arranges employees to work overtime during this time period, they should pay 300% of their wages and cannot make up for it. The method of taking a rest break instead.
The four days from January 31st to February 4th to 6th are legal rest days. If an enterprise arranges workers to work overtime, they can choose to give them compensatory rest or pay 200% of their wages to the workers.
It should be noted that when workers claim wages and overtime wages to the unit, they must pay attention to keeping evidence, such as punching records, chat records, audio and video recordings, etc.
A worker who claims overtime pay shall bear the burden of proof for the existence of the fact of overtime.
Unless the employee has evidence to prove that the employer has the evidence of the fact that overtime work exists, if the employer does not provide it, the employer shall bear the adverse consequences.
Question 2
Is it legal to dismiss employees by "last elimination"?
The end of the year and the beginning of the year are when many companies conduct year-end assessments. For employees, the results of year-end assessments are related to their vital interests such as personal promotion, income and treatment.
However, in recent years, some companies have introduced "wonderful" assessment rules, such as "you must walk 8,000 steps every day, and a penny will be deducted for one step less", "the number of likes on the company's official account is included in the assessment", etc., which not only deviates from the purpose of the year-end assessment And the original intention, but also the damage to the rights and interests of employees.
Moreover, the "last-rank mechanism" that enterprises like to implement, whether it is the last-rank elimination or the last-rank demotion and salary reduction, is illegal.
my country's Labor Contract Law stipulates two reasons for the employer to terminate the contract with the employee: one is that the employer unilaterally terminates the labor contract, that is, negligent dismissal, which means that in the case of the employee's fault, the employer does not need to notify in advance. Unilateral termination of labor contracts and dismissal of employees.
For example, during the probationary period, it is proved that he does not meet the employment conditions, seriously violates the rules and regulations of the employer, seriously neglects his duties, commits fraud for personal gain, and causes serious damage to the employer.
The second is no-fault dismissal, which refers to the situation in which the labor contract cannot be performed due to no fault of the laborer, and the employer unilaterally terminates the labor contract.
If a worker is ill or injured not due to work, after the medical treatment period expires, he cannot perform his original job or another job arranged by the employer; the worker is incompetent for the job, and after training or job adjustment, he is still incompetent for the job; The objective situation on which the contract was concluded has undergone major changes, resulting in the failure of the original labor contract to be performed, and the parties cannot reach an agreement on the modification of the labor contract after negotiation.
The reason why some companies dismiss employees is that the assessment is at the bottom, and they often directly link the assessment results such as "last elimination system" and "substandard performance" with "incompetence for the job", and use this as a reason to forcibly unilaterally. Fire employees.
In fact, this practice is against the law.
The last position always exists objectively, and the last position in the assessment may be caused by various factors, which does not necessarily mean that he is incompetent for the job.
According to the proving rule of "whoever claims, whoever gives evidence", if the employer terminates the labor contract on the grounds that the worker is incompetent for the job, it shall bear the burden of proof.
In judicial practice, it is generally believed that the fact that the year-end assessment is not up to standard, is at the bottom, or that the worker cannot complete the performance stipulated by the company does not necessarily mean that the worker is not competent for the job; even if the employer proves that the worker is not competent for the job, it still needs to pass After training or transfer, if the worker is still unable to perform the job, the employer may terminate the labor contract.
In addition, the forms and procedures of the rules and regulations formulated by the employer are legal, and the employees must be effectively served and informed in advance in order to produce legal effects.
Otherwise, the employer constitutes an illegal termination and needs to pay economic compensation to the worker.
Zhang joined a company in July 2013, and in May 2020 received a notice of termination of the labor contract issued by the company, because he was assessed as C in 2018 and 2019, and was deemed incompetent for the job.
After the trial, the court held that Zhang's assessment grade of C for two consecutive years did not meet the conditions for rescinding the labor contract stipulated in the company's "Employee Handbook", that is, "a person who has been trained as a C for two consecutive years or D for one year is still incompetent for the job. ”, and the company could not prove that Zhang was still not competent for the job after training, so it found that the company violated the law and needed to pay Zhang economic compensation for the illegal termination of the labor contract.
Question 3
Can I ask the company for a year-end bonus after leaving the company?
There are also some companies that link year-end bonuses to year-end assessment results.
At present, my country's laws do not have rigid regulations on year-end bonuses. In principle, whether an enterprise has a year-end bonus or how to issue it is a matter of its own discretion.
In practice, the most controversial issue is whether an employee can request a year-end bonus from the company after leaving the company.
Generally speaking, the first thing to look at is whether there are relevant provisions in the labor contract. If the labor contract does not clearly stipulate the issuance of year-end bonuses, and the employees cannot prove that the company has provisions for the issuance of year-end bonuses, the employees cannot claim.
If it is stipulated in the labor contract or the company stipulates a year-end bonus, and the employee has completed the assessment before leaving the company, the company should issue a year-end bonus to the employee even if the employee has left.
If the company’s year-end bonus does not need to be assessed, it has been paid every year before, or other workers have already paid it. If there is no special agreement, in accordance with the principle of “equal pay for equal work”, the company should issue year-end bonuses to employees even if they have left.
In a word, the year-end bonus follows the "agreement first". If there is no agreement between the two parties and the company has no relevant regulations, the specific situation needs to be comprehensively considered, and the employer cannot deduct it without any reason.
For workers, they should pay attention to whether the labor contract has clear stipulations, or whether there are relevant provisions in the company's rules and regulations, and pay attention to the preservation of evidence.
In addition to documents such as labor contracts or company regulations, such as salary payment records in previous years, audio and video recordings, chat records, etc. are also important evidence.
When a dispute arises, negotiate with the enterprise as soon as possible. If the negotiation fails, labor arbitration shall be filed within the time limit for arbitration.
Question 4
Is the paid annual leave "automatically reset at the end of the year"?
According to Chinese law, workers who have worked continuously for 12 months are entitled to annual leave.
The 12-month continuous work mentioned here not only includes the employee's continuous work for the same employer for 12 months, but also includes the continuous 12-month work in different employers.
For first-time workers, they can enjoy annual leave only after they have worked for the employer for 12 consecutive months.
For other workers, as long as they can prove that they have worked continuously for 12 months without interruption before joining the new employer, regardless of whether it is continuous with the work experience of the new employer, after the employee joins the new employer That is, enjoy annual leave.
It is usually judged whether an employee is eligible for "continuous work for 12 months", and a comprehensive judgment can be made based on their salary payment records, social security payment records, file records, resignation and entry procedures, etc.
However, under certain exceptions, workers cannot enjoy annual leave.
If you enjoy winter and summer vacations according to law, and the number of vacation days is more than the number of annual vacation days; if you take personal leave for more than 20 days and the unit does not deduct wages according to regulations; if you have worked for 1 year but less than 10 years, you need to take sick leave for more than 2 months. ; Workers who have worked for more than 10 years but less than 20 years, take sick leave for more than 3 months; workers who have worked for more than 20 years, take sick leave for more than 4 months.
The number of days of annual leave that an employee should enjoy is related to the accumulated working time: if it has reached 1 year but less than 10 years, the annual leave will be 5 days; if it has reached 10 years but less than 20 years, the annual leave will be 10 days; if it has reached 20 years , the annual leave is 15 days.
National statutory holidays and rest days are not counted as annual holidays.
If a new employee who joins an employer meets the conditions for enjoying annual leave in the current year, the number of annual leave days in the current year shall be converted and determined according to the number of remaining calendar days in the unit, and the part that is less than one full day after conversion shall not be entitled to annual leave.
Article 10 of the "Measures for the Implementation of Paid Annual Leave for Enterprise Employees" stipulates that if the employer does not arrange annual leave with the consent of the employees or arranges the number of days of the employee's annual leave to be less than the number of days of annual leave that should be taken, it should take the untaken annual leave within the current year. The number of days, according to 300% of the daily salary income, pay the untaken annual leave salary remuneration.
In real life, some companies stipulate that the annual leave must be fully taken in the current year, otherwise it will be "automatically cleared at the end of the year", which is not in compliance with the law.
Annual leave is the embodiment of workers' right to rest and one of the important rights of workers.
When formulating rules and regulations, the company can comprehensively consider the production status of the enterprise and combine the individual wishes of the workers to make overall arrangements for rest and vacations. In principle, annual vacations should be arranged centrally within one year.
The provision of "automatic clearing at the end of the year" for annual leave infringes upon the basic rights of workers and violates the mandatory provisions of the law. The employer must, in accordance with the law, pay 300% of the employee's daily wages to workers for untaken annual leave compensation.
Liu, an employee of a moving company, resigned due to personal reasons, but since he has worked for 8 consecutive years and has never taken annual leave, the company is required to pay his salary for the untaken annual leave.
However, the company believes that the "Employee Handbook" clearly stipulates that the employee does not apply for annual leave or delays the leave application in the current year, and it is regarded as automatically giving up the annual leave of the current year. Because Liu did not apply for leave or delay the leave in the previous year, the annual leave Should be "auto-zeroed".
After hearing, the court held that the company's rules and regulations regarding the "automatic clearing" of untaken annual leave violated the law, and the company had no evidence to prove that Liu had been given leave in the previous year, or that Liu had proposed in writing to take uninterrupted annual leave for his own reasons. , and finally supported Liu's claim.
The author reminds workers that although the end of the year is an active period for resignation, resignation must not be hasty.
If the laborer claims that the employer is at fault and proposes to terminate the labor relationship, the laborer shall bear the burden of proof. It is more common for the laborer to claim that the employer has not paid labor remuneration in full and timely, and failed to pay social insurance premiums in accordance with the law. Keep evidence.
If the employee resigns on his own due to personal reasons, he needs to notify the employer in writing 30 days in advance, and if he is still in the probation period, he needs to notify the employer 3 days in advance.
Labor relations are one of the most basic and important social relations in modern society.
Equal employment, remuneration, rest and vacation, etc. are all basic rights of workers.
For enterprises, the law respects the independent management rights and management rights of enterprises as market players, and enterprises must also protect the legitimate rights and interests of workers in accordance with laws and regulations, and cannot act willfully or violate the law.
As a laborer, on the one hand, we must work hard and continuously improve our professional ability; on the other hand, we must learn the law, understand the law, and enhance the awareness of rights for self-protection. Learn to use legal means to safeguard their legitimate rights and interests.
(Author: People's Court of Changping District, Beijing)