During the probationary period, social security is not paid, and it is paid only after it is regularized; After the employee is transferred, he will be re-"probationed"; Under the pretext of "incomplete inspection", the probationary period was extended at will

Some employers even regard the probationary period as a "cheap period"

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Some employers have misunderstandings about the probationary period, and do not pay social security for their probationary employees, arbitrarily agree or extend the probationary period. In fact, the employer establishes an employment relationship with the employee from the date of employment, and the probationary period is included in the term of the employment contract. Probationary employees and regular employees are protected by labor laws and regulations.

"During the probation period, you don't pay five insurances and one housing fund, and you will pay it after you become a regular", "The time is too short, the inspection is not comprehensive, and the probation period needs to be extended", "If you change to a new position, you need to recalculate the probation period"... Have you stepped on these "pits" during the trial period?

The probationary period is the period during which the employer assesses whether the employee is qualified or not, and the employee also assesses whether the employer meets his or her own requirements, which is a manifestation of two-way choice. The Labor Contract Law clearly stipulates the duration of the probationary period and the level of remuneration. The employer shall establish an employment relationship with the employee from the date of employment, and the probationary period shall be included in the term of the employment contract.

However, the reporter found that there are still some employers who regard the probationary period as a "cheap period" and "arbitrary period", deduct workers' wages, do not pay social security in accordance with regulations, repeatedly agree on or arbitrarily extend the probationary period, and even arbitrarily dismiss workers. How to better protect the rights and interests of probationary workers? The reporter interviewed about this.

Can you not pay social security during the probation period by "consensus"?

"After working for 4 months in a row, the company has not paid social security, and the boss and personnel seem to have forgotten about it. I mentioned it to my boss once, and I was quickly fired. "This is what happened to the laborer Suo Hua.

In June 2022, Suo Hua joined a content creation company in Shenzhen. Before joining the company, the company agreed with Suohua that the first 6 months were the probationary period, and the company did not pay social security, but paid after becoming a regular employee. Although he knew that it was illegal to not pay social security during the probationary period, due to financial constraints, Suohua had to join the company first and pay social security during the probationary period by himself.

In the fourth month of work, Suohua found that the company had not paid social security for him, so he raised an objection to the boss and was dismissed. Suo Hua said that he wanted to report to the labor department, and the company reluctantly agreed to pay the social security for him for the current month, and compensated him for the cost of paying social security during the probation period.

The Social Insurance Law stipulates that an employer shall, within 30 days from the date of employment, apply to the social insurance agency for social insurance registration for its employees. Xiong Xingxing, a lawyer at Jilin Zhengji Law Firm, said that employers should pay social security for employees in the probationary period. "Paying social insurance is a mandatory obligation of the employer, even during the probationary period and the two parties 'reach an agreement', they cannot afford not to pay social insurance."

"In addition, according to the Labor Contract Law, an employee during the probationary period can unilaterally terminate the employment contract and require the employer to pay economic compensation." Xiong Xingxing said.

Feng Lijuan, chief human resources expert of FutureFree, told reporters that the probation period is the stage after recruitment, through short-term actual work experience, to further confirm whether they are suitable for each other. "Some employers do not pay social security to employees during the probationary period, perhaps because the probationary period is short, and if both parties are not satisfied, they can quickly decide whether to 'break up'." Feng Lijuan admits that the establishment of the probationary period is more biased towards the employer's employment purpose, and it is not uncommon for some employers to use the probationary period to cheat cheap labor.

After the transfer, he was asked to try again

In practice, some employees have been granted probationary periods by employers many times. In March 2022, Yang Mimi joined a company in Fuzhou to engage in operation and customer service. The employment contract stipulates that the probationary period is 3 months. In June 3, Yang Mimi successfully turned positive.

At the end of January this year, Yang Mimi was transferred to the user operation position. She was already a regular employee, but she was asked to recalculate the three-month probationary period, and her salary was calculated at 1% of that of the regular employee.

"I objected at the time, I had already been regularized last year, and the employer and the same employee could only agree on a probationary period once. However, the HR department insisted that the nature of the post had changed and the probationary period needed to be recalculated. Yang Mimi said.

Seeing that the company was so "capricious", Yang Mimi immediately proposed to resign, and officially resigned at the end of March this year. In April this year, Yang Mimi received the company's March salary, and found that it was still paid according to the salary standard during the probation period, so she immediately applied for labor arbitration. Through the mediation of the arbitration tribunal, the company made up the difference between Yang Mimi's wages in February and March this year and gave compensation.

The Employment Contract Law stipulates that the same employer and the same employee can only agree on a probationary period once. Xiong Xingxing stressed that this regulation has nothing to do with the position of workers. "No matter what changes occur in the employee's job position or work requirements, the employer cannot set a probationary period with the employee again."

"If the probationary period can be re-agreed on for the employee due to a change in position, then in practice, there may be a situation where the employer keeps the employee in the probationary period through continuous job transfers, which is obviously unfair and unreasonable." Xiong Xingxing explained.

Previously, a labor dispute case released by a Beijing court showed that Mr. Chen joined an engineering company in June 2018 and continued to work until December 6. While continuing to employ Mr. Chen, the engineering company has signed five labor contracts with Mr. Chen with a term of more than three years, and agreed on a probationary period for five times.

Judge Zheng Jizhe of the Beijing No. 3 Intermediate People's Court said in his analysis of the case that if the employer illegally agrees on the probationary period, the employee has the right to refuse, and can also file a complaint with the labor inspection department, apply for labor arbitration or file a lawsuit with the people's court to demand that the employer bear the liability for compensation. The compensation standard is calculated based on the salary after the probationary period is completed.

Employees on probation are protected in the same way as regular employees

The reporter learned that the "pitfalls" often encountered by workers during the probation period also include arbitrary extension of the probationary period and arbitrary dismissal. Some netizens said: "When it's time to become a regular, other leaders and colleagues are satisfied, and the new leaders feel that they don't know enough and ask for an extension of the probationary period for one month." ”

According to the Labor Contract Law, if the term of the labor contract is more than three months but less than one year, the probationary period shall not exceed one month; If the term of the labor contract is more than one year but less than three years, the probationary period shall not exceed two months; For fixed-term and indefinite-term labor contracts of more than three years, the probationary period shall not exceed six months. In addition, the salary of the employee during the probationary period shall not be less than 80% of the minimum wage of the same position in the employer, or not less than 80% of the salary agreed in the labor contract, and shall not be lower than the minimum wage standard of the place where the employer is located.

Xiong Xingxing pointed out that some employers have misunderstandings about the probationary period, believing that probationary employees are not regular employees, and they do not need to sign a written labor contract, do not pay social insurance, arbitrarily extend the probationary period, and dismiss at will.

The law clearly stipulates that the employer shall establish an employment relationship with the employee from the date of employment, and the probationary period shall be included in the term of the employment contract. Therefore, in terms of legal relationship, there is no difference between probationary employees and regular employees, both of whom have established a legal labor relationship with the employer, and are subject to the same protection as regular employees under labor laws and regulations. Xiong Xingxing said.

Feng Lijuan reminded that workers should ask about the length of the probation period and the wage standard during the job search process, and implement these contents in the labor contract. "Both the employee and the employer should clearly agree on the terms of employment, which is the protection of both parties." Xiong Xingxing believes that in order to better protect the legitimate rights and interests of workers during the probationary period, it is necessary to strengthen the supervision and management of labor inspection departments, strengthen the supervision of employers, and earnestly implement the duties of labor security supervision. (Reporter Tao Wen)

Source: Workers' Daily