The “family rules” of
enterprises cannot
cross the red line of the law.
Wonderful enterprise rules and regulations frequently infringe upon the legitimate rights and interests of workers.
□ Our reporter Zhao Chenxi
Mobile phone ringtones must use uniform music, otherwise performance pay will be deducted; employees have time limits to go to the toilet, and they will be fined for continuous use of the toilet within a short period of time; employees who refuse to attend a colleague’s birthday party due to epidemic prevention and control are fined or even fired by the unit...
This ridiculous case happened around us. The "household rules" of some companies have clearly violated the legitimate rights and interests of employees.
Recently, a case in which an “employer sue the company after being expelled from work in shorts” on the Chinese Judging Documents website has once again aroused people’s attention to the company’s “household rules”.
The employee Ding was dismissed by the company for disobeying management for violating company regulations and wearing shorts. Ding believed that he was expelled for not wearing work clothes and the punishment was too heavy, and he took the company to court.
The court concluded that the company had the right to terminate the labor contract due to Ding’s violation of the rules and regulations, but the company did not submit evidence to prove the legitimacy of its rules and regulations, which supported Ding’s claim.
Huang Leping, director of Beijing Yilian Labor Law Aid and Research Center, said in an interview with a reporter from the Rule of Law Daily that the establishment of "household regulations" by enterprises is a right conferred by the labor contract law, but they should focus on human nature rather than "willfulness" and should be in line with national laws and regulations. Be consistent, and resolutely crack down on the "fouling" corporate "family rules".
Tardiness linked to annual leave has no legal effect
Ren Na has to set up at least three alarm clocks every morning, starting at 6:30 and getting one every two minutes, so that she can wake up quickly in the shortest time and ensure she arrives at the unit before 8:30.
Ren Na has been working in a digital company in Beijing for 5 years. The working time stipulated by the unit has always been 9 o'clock. However, since the new leader was changed at the beginning of this year, the company's regulations have been revised to require administrative posts to arrive half an hour earlier, otherwise they will have to Be punished.
Ren Na, who had difficulty adapting to the new "biological clock", was late several times and felt the "power" of punishment.
"If you arrive 5 minutes late, you will be counted as being late, and you will have to deduct one day from the annual leave for three times." Ren Na revealed that the unit gives employees 5 days of annual leave each year. An employee who lives far away and has inconvenient transportation has been deducted. After losing more than half, I had no choice but to rent a house near the unit, because if the annual leave was deducted, he would be fined for being late.
Article 2 of the "Regulations on Paid Annual Holidays for Employees" that came into effect on January 1, 2008 stipulates that employees of government agencies, organizations, enterprises, institutions, private non-enterprise units, individual industrial and commercial households with employees, etc. work continuously for one year Above, enjoy paid annual leave.
The unit shall ensure that employees enjoy paid annual leave.
In this regard, Hu Wei, a lawyer at Beijing Gaowen Law Firm, said that employees’ paid annual leave is the right to rest that is clearly granted to employees in laws and regulations such as the Labor Law, the Labor Contract Law, and the “Regulations on Paid Annual Holidays for Employees”.
Therefore, it is illegal for companies to use so-called internal regulations to link employees' lateness with the deduction of annual leave, and has no legal effect.
It is worth noting that Ren Na’s rules and regulations for late arrivals also include fines.
In fact, in order to demonstrate the "strength", many companies have formulated penalties such as fines.
Chen Shaohua works in an Internet company. August is the company's research and development month. In principle, employees are not allowed to ask for leave. If they ask for leave for more than three consecutive days, they will be fined 100 yuan a day starting from the third day.
“The right to fines is the right of administrative punishment only for administrative agencies. As a civil subject operating in accordance with the law, the employer does not enjoy the right of administrative punishment.” Huang Leping explained that the “Regulations on Rewards for Enterprise Employees” issued by the State Council in 1982 stipulated that state-owned enterprises and Urban collective enterprises have the right to impose fines on employees, but this regulation was repealed in 2008.
Nowadays, companies imposing fines on employees for any reason are unfounded.
Office romance needs to "choose one of the two" or infringement
Because of a relationship, Xu Ran finally had no choice but to change jobs.
Two years ago, Xu Ran applied to a media company to engage in office administration work. With the contact at work, she and the company's marketing manager Li Gen gradually developed into a couple.
Since then, the two of them are always cautious and dare not disclose to their colleagues, nor can they commute together, because the company has internal regulations that if there is an office romance, they must implement "choose one of two", that is, only one of the two lovers can stay in between. company.
The reason given by the company is that office romances will not only affect work efficiency, but also bring bad demonstration effects to other employees.
In April of this year, the relationship between the two was discovered. The person in charge of the company said that the "household rules" must be strictly enforced because Li Gen's work is more important to the company, so Xu Ran "recommended" Xu Ran to resign.
In the end, Xu Ran chose to leave the company.
Such examples are not uncommon. Some units not only intervene in employees' love, but even "upgrade" to intervene in the pregnancy time of female employees, such as stipulating that female employees cannot become pregnant within two years after joining the company.
In this regard, Liu Junhai, director of the Institute of Commercial Law of Renmin University of China, pointed out that the "household regulations" of these enterprises are all illegal.
According to Article 110 of the Civil Code, natural persons have rights to life, body, health, name, and marriage autonomy.
This means that citizens have the right to decide whether to fall in love, get married, etc., and no other organization or individual can coerce or interfere.
Article 27 of the Law on the Protection of Women's Rights and Interests stipulates that no unit may lower the wages of female employees, dismiss female employees, or unilaterally terminate labor (employment) contracts or service agreements due to marriage, pregnancy, maternity leave, breastfeeding, etc.
Liu Junhai said that the establishment of such so-called "love prohibition orders" by the unit seriously violated the basic civil rights of employees.
It is a serious violation of the law to restrict the pregnancy period of recruited employees. If the company terminates the labor relationship with the employee without authorization based on such regulations, it should provide corresponding compensation to the involved employee.
However, Huang Leping believes that under certain circumstances, it is reasonable for the company to require employees who are in a relationship to be transferred. For example, an accountant and a cashier are in a relationship, which is obviously a major risk to the company's financial work.
However, according to Article 35 of the Labor Contract Law, the employer must negotiate with the employee before it can change the content of the labor contract, and the labor contract must be changed in written form.
Refine legal regulations to enhance operability
The company's rules and regulations are the standards and regulations used by the company to regulate all members of the company and all the company's economic activities, and are the embodiment of the company's internal responsibility system.
Liu Junhai pointed out that enterprises have the right to operate and manage independently, and formulating corporate "household regulations" is also a right granted by law.
Article 4 of the Labor Contract Law stipulates that employers shall establish and improve labor rules and regulations in accordance with the law to ensure that employees enjoy labor rights and perform labor obligations.
Article 39 of the Labor Contract Law stipulates that if a worker seriously violates the rules and regulations of the employer, the employer may terminate the labor contract.
The provisions of the Labor Contract Law give enterprises the right to formulate rules and regulations and guarantee the effectiveness of the implementation of the system.
However, Liu Junhai reminded that the law clarifies that the necessary prerequisite for the establishment of rules and regulations is "in accordance with the law." Article 80 of the Labor Contract Law stipulates that if the rules and regulations of the employer that directly involve the vital interests of employees violate the laws and regulations, the labor administrative department shall order it. Make corrections and give a warning; if any damage is caused to the worker, it shall be liable for compensation.
This means that the company’s “household regulations” must be consistent with national laws and cannot be above the law.
In Huang Leping's view, weird corporate "household regulations" are not uncommon, with both lack of legal knowledge and corporate awareness.
In practice, most companies delegate the work of formulating rules and regulations to the office or personnel department. If the relevant drafters have weak legal awareness, the rules and regulations formulated may violate the law.
In addition, many companies have the problem of "capital willfulness". The formulation of rules and regulations only emphasizes corporate management and operational autonomy, ignoring the rights and interests of employees, and lacks the process of democratic participation.
In Ren Na’s impression, the unit’s amendment to the half-hour advance notice was only directly notified to the employee group, and no consultation was conducted with the employees during the amendment process.
"The company's'family regulations' are by no means the words of the leadership." Liu Junhai introduced that Article 4 of the Labor Contract Law stipulates that employers are formulating, modifying or deciding on labor remuneration, working hours, rest and vacation, and other rules and regulations that directly affect the vital interests of workers. In case of major issues, the plans and opinions shall be discussed by the workers’ congress or all workers, and they shall be negotiated and determined on an equal footing with the trade union or the workers’ representatives.
"If the corporate system is to be scientific, effective, and fair, it must adhere to democratic rules." Liu Junhai hopes that employees should also actively defend their rights if they encounter unfair treatment. If there is a serious violation of the company's "family rules" or there is no basis for the law, he must resolutely say Do not.
Huang Leping suggested that companies should hire a legal team or invite legal personnel to participate in the formulation of corporate rules and regulations to ensure legitimacy and at the same time ensure that the corporate rules and regulations are operational.
For example, some companies stipulate that employees who fail to comply with the reasonable instructions of the executive leader are regarded as violations of discipline. There are no specific standards for what is meant by "reasonable". Once the company operates in accordance with this clause, it is very easy to cause labor disputes.
Enterprise rules and regulations are the category of enterprises’ autonomous management rights, and the rules and regulations are different. The current law on how to formulate enterprise rules and regulations, more in principle, stipulates in the formulation of procedures, system content and public notice, which reflects the legislation for enterprises to formulate rules and regulations. The unity of principle and flexibility of the system.
Regarding the rules and regulations of enterprises, Article 4 of the Labor Contract Law is much more detailed than Article 4 of the Labor Law, but Huang Leping believes that Article 4 of the Labor Contract Law can still be further refined to enhance operability.
For example, with regard to the formulation or modification of rules and regulations concerning the vital interests of workers, employers should "determine on an equal basis" with the labor union or employee representatives how they should understand, what specific measures are taken, and what are the consequences of non-implementation. Can be further refined.
How to ensure that the role of trade union organizations in the formulation of corporate rules and regulations in the labor contract law is not reduced to a formality and to effectively integrate with the trade union law requires further thinking and discussion.
Cartography/Li Xiaojun