During the probationary period, should the employer pay social insurance premiums for workers? "Trial work" equals probationary period? Is it a good thing to agree on a probationary period? Several "pits" during the trial period, have you ever been caught?
Should employers pay social insurance premiums during the probationary period ?
Xiao Zhang, a fresh graduate of the "post-90s" university, joined a company, and the two parties signed a three-year labor contract. During the probationary period, the company thought that Xiao Zhang was a newcomer and it was hard to say whether he could join the company, so he did not pay social insurance premiums for him.
After several unsuccessful communications, Xiao Zhang had to terminate the labor contract with the company, and finally sued to the People's Court of Xicheng District, Beijing, asking the company to pay economic compensation for the termination of the labor contract.
The court held that, in accordance with the "Labor Contract Law of the People's Republic of China" and other relevant laws, if the employer fails to pay social insurance premiums for the employee in accordance with the law, the employee has the right to terminate the labor contract, and the employer must pay economic compensation.
In the end, the court upheld Xiao Zhang's claim.
The judge also gave everyone an interpretation. "In judicial practice, the issue of social insurance premiums during the probationary period is a blind spot for many newcomers in the workplace." said Liang Liang, judge of the Seventh Civil Division of Xicheng Court.
It is a legal obligation for an employer to pay social insurance premiums for employees, which should be performed from the date of the establishment of the labor relationship. During the probationary period, social insurance premiums must also be paid.
Netizens also said, "It turns out that you have to pay social insurance fees during the trial period." "It's really long!" "We almost don't pay social insurance during the trial period. I thought it was all like this."
Xiao Zhang's experience is not an isolated case. According to Wang Hui, President of the Seventh Civil Division of Xicheng Court, in 2017, Xicheng Court accepted 122 cases involving labor disputes during the probationary period, a year-on-year increase of 16%, showing an upward trend.
As netizens said, there may be a "pit" buried in a labor contract, and newcomers to the workplace need to be more careful, be vigilant, and safeguard their legitimate rights and interests.
What are the "pits" in the probation period for resigning at will, coining words without pay, and abusing concepts ?
"Trial" equals "trial"? Can you cancel the contract if you "do not meet the conditions of employment"? All labor contracts have a probation period? The editor also summarized several "pits" during the probationary period from the judge. Let's see if you have been recruited?
Ingeniously innovative words, "trial work" equals "trial"?
"In some cases, the employers ingeniously created new words and replaced the probationary period with 'trial work' to evade legal regulations." Liang Liang introduced that some employers would owe employees' wages in the name of "trial work".
The judge also said that there is no concept of "trial work" in law. During the trial, it is generally determined that "trial work" is a trial in the general sense.
Therefore, the employer may terminate the labor relationship in accordance with the law for the laborer who does not meet the employment conditions, but it should pay the laborer's remuneration for the labor already paid.
Abuse of the concept, all labor contracts have a probation period?
Wang Hui said that some employers stipulate a probation period for all types of labor contracts.
In fact, the law stipulates that a labor contract with the term of completing certain work tasks or a labor contract with a term of less than three months and part-time employment, both parties may not agree on a probationary period.
The judge said that the conditions for termination of the contract during the probationary period are wider and the wages are lower, and the abuse of the probationary period will damage the legitimate rights and interests of workers.
Therefore, friends, when signing a labor contract, you should also see the time limit of the probationary period to avoid infringement of legitimate rights and interests.
Can the employer cancel the contract even if it "does not meet the employment conditions"?
Wang Hui said that the employer's refusal to hire should have sufficient basis and explain it to the worker.
If the contract is arbitrarily terminated based on only one job debriefing and poor assessment results, the court will require the employer to bear the burden of proof for "not meeting the employment conditions" during the trial.
If the proof is not available, it does not rule out that it is illegal to terminate the labor contract.
Therefore, my friends, pay attention. Although the performance during the probationary period is very important, it is by no means an excuse to terminate the labor contract illegally. We must keep our eyes open and recognize whether there is any illegal termination of the contract in the contract.
During the probationary period, the laws are complex and easy to misread
, and the employment system of the employer still needs to be improved
Netizens said, "Although the trial period is short, there are many legal problems."
The judge believes that at present, due to factors such as the relatively broad provisions on the probationary period in my country's labor contract law and the unbalanced labor-management relationship, the phenomenon of employers' use of the probationary period to infringe upon the legitimate rights and interests of laborers often occurs.
"Labor disputes during the probationary period mostly occur in the termination process, and many of them are directly related to the rules and regulations of the employer." Chen Meizhu, a lawyer at Beijing Jiaguan Law Firm, believes that legal and reasonable rules and regulations design is particularly important.
Of course, "Phase III" is by no means an "umbrella" during the trial period.
"During the probationary period, if the employee seriously violates the rules and regulations of the employer, the employer can also terminate the labor relationship in accordance with the law," the judge said.
Liang Liang suggested that the relevant departments can sort out the labor laws related to the probationary period and increase the publicity of the law. At the same time, gradually guide employers to build perfect rules and regulations, clarify employment conditions, quantify employment standards, and clarify assessment procedures.
The judge held that the employer should perform the responsibilities and obligations that the employer should undertake during the probationary period as agreed. Workers should join the job in good faith, and must not conceal or fabricate facts about the basic circumstances that affect the performance of the labor contract.
Both parties adhere to the principle of good faith, and the probability of labor disputes will be minimized.
This article is reproduced from [Little Elephant]
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