What are the consequences of fraudulent job search
Peng Yu
The Internet rumor that "Tsinghua female doctoral assistant police officer" has recently sparked heated discussions, and then the local authorities in Changsha informed that the person involved lied about his education.
In recent years, the issue of job seekers' academic fraud has received widespread attention from the society.
So, what legal responsibilities should job seekers bear for providing fake degrees?
Can the employer terminate the labor contract?
What measures can employers take to prevent job seekers from fraudulent academic qualifications?
1 Suspected fraud by providing false academic qualifications
Whether it is to participate in the civil service examination, professional title examination, or enterprise interview, the laborer's education is a necessary material for the employer.
However, there are always some people who take a fluke and want to make profits by relying on fake degrees.
Workers should truthfully provide their educational information, which is clearly required by law.
Article 3 of the Labor Contract Law stipulates that the conclusion of a labor contract shall follow the principle of good faith.
Article 8 stipulates that the employer has the right to know the basic situation of the laborer directly related to the labor contract, and the laborer shall explain it truthfully.
The principle of good faith requires that civil subjects engaged in civil activities should be honest and trustworthy, exercise their rights and perform their obligations in good faith, and truthfully inform the other party of their true information, and do not commit fraud or fraud.
Workers who violate the above principles and regulations shall bear the corresponding legal consequences in accordance with the law.
Article 26 of the Labor Contract Law stipulates that if the other party enters into or modifies the labor contract against the true intention by means of fraud, coercion or taking advantage of the danger, the labor contract shall be invalid or partially invalid.
Whether the employee violates the principle of good faith and provides false academic qualifications will invalidate the labor contract, which involves the determination of whether the behavior is in line with fraud.
Article 21 of the Supreme People's Court's "Interpretation on Several Issues Concerning the Application of 1003ae of the General Provisions of the Civil Code of the People's Republic of China 1003af" stipulates that intentionally informs false information, or the person who is obliged to inform deliberately conceals the true information, causing the party to make a decision based on a wrong understanding. If the intention is expressed, the people's court may determine it as fraud under Articles 148 and 149 of the Civil Code.
In judicial practice, the elements for invalidation of a labor contract due to fraud can be summarized into the following two aspects:
First, the laborers have fraudulent behavior and subjective intentions.
Usually, when an employer is recruiting, the availability and level of a worker's educational background, and whether the major is the right one, have an important impact on the final decision on whether to recruit and the specific job and salary, which are the basic conditions directly related to the labor contract. Therefore, labor Applicants are obliged to truthfully state their academic qualifications.
In this case, if the employee provides false academic qualifications to the company, it is obviously subjective and intentional.
It is relatively easy for the employer to provide evidence for the fraudulent behavior and intention of the laborer. During the litigation process, the laborer can admit himself during the court trial and provide the resume, employee information registration form, and materials from the previous self-investigation to prove it. It is also possible to apply for an ex officio investigation by the court.
Second, the behavior of the laborer caused the user unit to conclude a labor contract against its true intentions.
In the case where the employer has clear educational requirements, the court generally considers that the educational background is a basic situation directly related to the signing of the labor contract, and presumes that the act of providing false academic qualifications has caused the employer to fall into a wrong understanding and make a wrong recruitment decision.
If the employer does not set academic qualifications as a recruitment condition or expressly states that no academic qualifications are required, it is generally not considered that the provision of false academic qualifications by the laborer directly leads to the legal consequences of invalidity of the labor contract.
Especially for some positions that do not require high labor skills, the employer clearly promises that there is no limit to the educational background when recruiting, even if the employee fills in a false academic degree, because this is not the directly related basic situation that the employer considers when signing the labor contract, so generally There will be no wrong recruitment decision made by the employer based on the wrong understanding of the academic qualifications.
However, in some cases, the educational background is presumed to be an implied condition based on the particularity of the recruitment position. For example, in a labor dispute case involving false academic qualifications, the court held that even if a company's recruitment requirements are not limited to academic qualifications, but the recruitment position is a creative director, They are not ordinary employees, and their requirements for the qualifications, work experience, and work achievements of the recruits are bound to be higher than those of ordinary workers. Educational qualifications are an objective reflection of a person's learning ability, and are also an important indicator for employers to select workers and determine remuneration. Fictitious academic qualifications are sufficient to make wrong choices based on trust in academic qualifications.
2 The employer has the right to terminate the labor contract
If a worker joins the job with a fake degree, after being discovered by the employer, the labor contract can be terminated in accordance with the law because he does not meet the employment conditions.
Article 11 of "Notice of Beijing Higher People's Court and Beijing Municipal Labor and Personnel Dispute Arbitration Commission on Printing and Distributing 1003ae's Answers to 1003af on the Application of Law in the Trial of Labor Dispute Cases" stipulates that laborers who do not meet the employment conditions mainly include the following situations: labor Those who violated the principle of good faith and concealed or fabricated facts about their own basic situation that affected the performance of the labor contract, including providing false academic certificates, false ID cards, false passports and other important personal documents.
That is to say, the employer can make it one of the employment conditions that the employee shall not provide false academic certificates. If the employee knows this requirement and violates this requirement, it complies with the provisions of Article 39(1) of the Labor Contract Law. If it is proved that it does not meet the requirements for employment”, the employer may propose to terminate the labor contract with the employee during the probationary period.
The probationary period itself is the employer's inspection period for the worker's skill level and conduct quality. Finding and handling at this time is not only reasonable and legal, but also causes relatively little loss to the employer.
The employer may also, by formulating rules and regulations in accordance with the law, include the provision of false academic qualifications into the scope of the determination of serious violations of the rules and regulations. According to this, the laborer can meet the requirements of Article 39, Item 2 of the Labor Contract Law on "serious violation of the employer's degree". to exercise the right to rescind the labor contract.
Just as there is a point of view, education is not equal to ability, and ability is not equal to character. Integrity is not only the basic requirement of the law for the subject of labor contract relationships, but also the basic criterion for enterprises to evaluate employees. Employers require that the employees they recruit have integrity and quality. .
Employers have different corporate cultures and values, and have the right to independently formulate corresponding rules and regulations in accordance with the law. Employers are an important means of lawful management to impose necessary constraints on workers through corporate rules and regulations.
In addition, according to the provisions of Article 39 of the Labor Contract Law, the employer may terminate the labor contract by means of fraud, coercion or taking advantage of the dangers of others to make the other party enter into or change the labor contract against the true intentions, thus making the labor contract invalid. contract.
Generally speaking, a labor contract is a continuation contract. In terms of rule setting, the invalidity of the contract under certain circumstances is one of the legal circumstances for the termination of the contract.
If the employer does not mention fraudulent academic qualifications in the employment conditions and rules and regulations, even if the two parties have not signed a written labor contract and only have a de facto labor relationship, as long as the invalidity stipulated in the above-mentioned laws and regulations is met, the employer can Exercise the right to rescind in accordance with the law.
3. Those who fake academic qualifications should compensate for the loss of the unit
At the legal level, after the employment contract is terminated due to fraudulent academic qualifications, what legal responsibilities will the counterfeiter bear?
The first is that "inflated wages" should be refunded.
Article 28 of the Labor Contract Law stipulates that if the labor contract is confirmed to be invalid and the laborer has paid for the labor, the employer shall pay labor remuneration to the laborer.
The amount of labor remuneration shall be determined with reference to the labor remuneration of workers in the same or similar positions in the unit.
In judicial practice, if the unit lacks a reference post, it can also be determined according to the social average wage of the post, that is, the average wage of the post and similar posts in the labor market.
What needs to be clear is that in the case of providing false academic qualifications for entry, the reference is obviously not the position corresponding to the "false academic degree". For the part of the "falsely high salary" that has been paid, the employer can claim that the worker will return it.
Wang joined a company as the general manager of the creative center in March 2019, and agreed that the monthly salary after regularization would be 91,000 yuan. In September, he proposed to resign.
The company claims that Wang’s education is fake and the salary standard is much higher than that of other managers of the same level. Wang’s labor remuneration should be determined with reference to the remuneration of workers in similar positions in the unit and the average social salary, and he is required to return his salary of 300,000 yuan. The claim was upheld by the court.
The second is not to ask the employer to pay economic compensation or compensation for rescission of the contract.
In February this year, the Ministry of Human Resources and Social Security and the Supreme People's Court jointly issued the "Opinions on Issues Concerning the Connection between Labor and Personnel Dispute Arbitration and Litigation (I)", in which Article 19 stipulates that the employer shall be liable for violation of the principle of good faith by the employee. Providing false academic certificates, personal resumes, and other basic information directly related to the conclusion of a labor contract constitutes fraudulent termination of the labor contract. If the laborer claims economic compensation or compensation for the termination of the labor contract, the labor and personnel dispute arbitration committee and the people's court shall not support it.
According to the above provisions, if the employer does not find the issue of fraudulent academic qualifications when rescinding the labor contract, the two parties have reached an agreement to pay the employee economic compensation for termination, and the employer can claim to revoke the agreement afterwards in accordance with the law.
In the labor dispute case between Zhang and the company, the court held that the labor contract between the two parties was invalid due to Zhang's academic fraud. Although Zhang and the company signed the "Agreement on Dismissal of Labor Contract through Negotiation", the basis for signing the agreement was Based on the legality and validity of the labor contract between the two parties, there was a major misunderstanding of the legal validity of the contract between the two parties when the company signed the agreement. Therefore, there is no legal basis for Zhang's request for the company to pay economic compensation and payment on behalf of the notice, and the court will not support it.
Third, it is necessary to bear the compensation for the loss of the employer.
Article 86 of the Labor Contract Law stipulates that if a labor contract is confirmed to be invalid in accordance with the provisions of Article 26 of this Law, causing damage to the other party, the party at fault shall be liable for compensation.
If the false education provided by the laborer is identified as fraud and the labor contract is invalid, the laborer is obviously at fault. If the employer has evidence that the laborer’s fraudulent behavior has caused damage to the laborer, it can claim compensation, such as re-employment. cost, etc.
4 You can ask to sign a letter of commitment when you enter the job
In civil law, some people refer to the principle of good faith as the "imperial clause", but the application of the principle of good faith is not absolute and unlimited. In some special cases, the balance between the principle of good faith and the principle of fairness needs to be comprehensively considered.
Li joined a company in 2006 and signed an indefinite labor contract in January 2014.
In November 2015, when the company inquired about relevant colleges and universities, it found that Mr. Li's academic qualifications were faked, and then he was dismissed on the grounds of academic fraud.
The effective judgment held that the employee has the duty of good faith to provide the entry information truthfully, and the employer also has the obligation to pay attention to the review of the employee's qualifications. The impact of false education on the validity of the labor contract should have a reasonable period of time, and it is not appropriate to remain in the labor contract for a long time. as grounds for voiding or rescinding the contract.
The false education provided by Li did not reach the level of fraud, did not cause losses to the company, nor did it violate the company's true intentions.
Therefore, the employer should exercise the right to rescind the labor contract carefully when encountering the above situation.
Of course, long working hours are not a "talisman" for workers to be exempted from liability, and employers also have the right to punish them for dishonest behavior in accordance with laws and regulations.
In terms of the burden of proof, Article 44 of the Interpretation of the Supreme People's Court on Issues concerning the Application of Law in the Trial of Labor Dispute Cases (I) stipulates that due to the dismissal, removal, dismissal, termination of labor contract, reduction of labor remuneration, calculation of The employer shall bear the burden of proof for labor disputes arising from the decision of the worker's working years.
Therefore, if the labor contract is terminated on the grounds that the employee provides false academic qualifications, the employer shall bear the burden of proof.
Specifically, according to different reasons for termination, the employer needs to provide evidence to prove that the employment conditions, rules and regulations, etc. have been notified to the employee or that the employee has known, but has indeed provided false academic qualifications.
The recruitment department of the employer should make corresponding explanations and notifications in the links such as issuing recruitment notices and conducting pre-job training. The recruitment conditions should be as clear and detailed as possible. For doubtful academic certificates, they should strive to enter the workforce. If the investigation and verification work is completed before or during the probationary period, the employee may also be required to sign a letter of commitment, promising that the personal information provided is true and valid, and if there is any fraud, they should bear legal responsibility.
Workers should face job applicants with a sincere attitude and recognize the importance of integrity.
Acts of fictitious academic qualifications for the sake of personal gain and undermining the order of fair competition in employment should be given a negative evaluation in law.
Employers should not only attach importance to academic qualifications, but not only rely on academic qualifications, set reasonable recruitment conditions and remuneration packages, improve recruitment methods, and improve the ability and quality evaluation mechanism for job seekers, so as to ensure that people are suitable for their positions and make the best use of their talents.
(Author: Beijing Fengtai District People's Court)