Economic compensation compensation difference and layoffs compensation

[Economic compensation compensation difference and layoffs compensation labor law consulting] Hello Shen lawyers, because I is to proceed the job matters, employee contract is2011Years3Month31Day maturity, it involves how to dissolve labor contracts with employees or termination of a labor contract is more beneficial to the company's problems, and see your article, for economic compensation and damages a bit confused, ask for your help, thank you!

[Beijing] Shen Binti labor lawyers reply

I have received, thank you for your attention, support and trust, to your questions simple reply as follows, for your reference:

1, economic compensation and compensation is different

Economic compensation, refers to the employing units in accordance with the law, an economic compensation paid to workers in the specific conditions of the specific standard of compensation, compensation compensation case, are some of the provisions of the legal. At the same time, economic compensation is usually only applies to employers to pay employees, the labor law and related law does not stipulate the economic compensation to the employer to pay the employee.

According to cause division,Economic compensationThe type of payment can be divided into the following seven:

Termination of the unit type economic compensation: in accordance with the labor contract law article40,41The legal situation, the employer according to the employing autonomy of the unilateral lifting of the labor contract shall terminate the contract to pay economic compensation to the laborer labor situation. Legal basis is the labor contract law40Article,41Article,46Article;

Employee termination type economic compensation:Due to the employer's statutory wrong, the active dissolution of the labor contract but the employer is to terminate the contract shall pay economic compensation of labor. Legal basis is the labor contract law article38Article,46Article;

Joined economic compensation:That is the employer offered relief workers but and consensus of labor contract, the unit is still required to pay economic compensation of labor contract, the labor contract law the legal basis36Article,46Article;

The termination of the labor contract and economic compensation: legal basis is the labor contract law44Article,46Article;

Additional compensation for economic compensation:The employer terminates the labor contract, no economic compensation to the laborer in accordance with the regulations, in addition to the full to the economic compensation shall pay additional economic compensation according to the amount of financial compensation of fifty percent cases.

Prohibition of business strife and economic compensation: If an employee has a confidentiality obligation, the employing unit may agree with the employee on the competition restriction provisions in the labor contract or confidentiality agreement, and agreed in dissolution or termination of labor contracts, during the term of the competition restriction monthly economic compensation to the laborer;

Deduct default in payment of labor remunerations economic compensation: the employer deduction or no arrears of wages to labourers, and refusal to pay remuneration for extending the working time, in addition to pay full wages of workers within the prescribed period of time, also need to add the economic compensation equivalent to wages twenty-five percent.

Damages.Refers to the employer or employees for violation of law or breach of contract agreement, causing economic losses to the other party and to pay compensation, applicable statutory damages without the prior agreement. According to the labor contract law article eighty-seventh, the employer terminates the labor contract law, it shall pay compensation to the Employee terminates the labor contract in accordance with the two times the standard of economic compensation. At the same time, the contract law article eighty-fifth labor: below units not in accordance with the labor contract or regulations of the state, timely and full payment of labor remuneration of workers, the local minimum wage to pay wages to laborers, arranges overtime without overtime pay, dissolution or termination of labor contract, fails to make economic compensation to the laborer. The labour administrative department shall be ordered to pay labor remuneration, overtime or economic compensation; labor remuneration is lower than the local minimum wage standard, the difference shall be paid; fails to pay within the time limit, the employer shall be ordered to fifty percent of the sum payable by the above one hundred percent under standard is added to laborer pay compensation.

Above is the difference between economic compensation and damages in the legal concept, we recommend that you control the column to be clear in the law, hope that the answer can help to you.

2, the manner in which the dissolution or termination of a labor contract is more beneficial to your company's problems

First of all, your company choose legal risk to terminate the labor contract. Your employee contract2011Years3Month31Date, if not renew, not terminated, employees continue to work for your company, your company to pay wages, continue to pay social security, will constitute the fact labor relationship between your company and employees. Under this situation, the company intends to terminate labor contract expires between employee and labor relations, to the judicial practice in different regions, according to the judicial practice in Beijing area, because the two sides have formed new facts of labor contract, if there is no objection to the new labor contract, the labor contract shall be a shares for a year, so the unit can not simply according to the termination of the labor contract, this kind of practice is not in conformity with the law. But if the termination condition of forty-four provisions of the labor contract law, according to the labor contract law, the company still has the right to terminate the labor contract. In addition to suggest your company pay attention to employees, in the "labor contract law" article forty-second of the situation, the expiration date of the labor contract shall be extended until the relevant circumstance ceases to exist, and to pay economic compensation, but this only applies to some of the staff, not universal applicable.

Secondly, for your company to choose to terminate the labor contract legal risk to economic layoff way. The "downsizing" has its special meaning, "labor contract law" called "economic layoffs," is one of the main ways of the employer's right to terminate the labor contract rights. Although the "labor contract law" allow enterprises to economic layoff, but need to meet the strict substantive and procedural conditions. If your company economic layoff in accordance with the "labor contract law" one of the four kinds of circumstances specified in the first paragraph of article forty-first, in strict accordance with the statutory procedures, and on the basis of "labor contract law" article forty-sixth the employee economic compensation payment attrition, layoffs economic your company can be considered valid. Otherwise, you need to bear the legal consequences of termination of labor contract law.

Finally, the legal risk to terminate the labor contract agreed approach to choose your company. According to the "labor contract law" thirty-sixth, forty-six, your company and staff consensus, may terminate the labor contract, worth the distinction is, if by employees to terminate labor contract and in consultation with the company agreed to terminate the labor contract, is your company does not need to pay economic compensation to the laborer; on the contrary, the Wakayu Ki company termination of employment contract and labor contract agreed in consultation with the workers, is your company needs to pay economic compensation. In this way your company needs more effort, communicate with the staff, the process of negotiation may be long, difficult, but once the negotiations are successful, relative to economic layoff, smaller legal risk agreed to terminate the labor contract.

To sum up, we would advise you to hire labor law of professional lawyers, according to the specific situation of the company, the legal risk analysis, based on maintaining the harmonious labor relations, the company's stability, make to your company's decision.

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Beijing Shen Binti the labor law service address: Beijing Dongzhimen South Street3Actually building No.18Building smell law firm; e-mail:Shenbinti@yahoo.com.cn  Business telephone:(+86) 15301115671(+86)13661313967 ;Interactive blog:Http://blog.sina.com.cn/shenbinti

Shen Binti's brief introduction: Shen Binti, female, Beijing City Labor and Social Security Law Association, Xiamen University, master of law, Beijing labor law expert, Beijing Wen law firm partner. Research on the legal disputes in the Shen Binti lawyers professional solution, focus on the cases of labor disputes and labor law, labor law training service as a special consultant. Shen Binti lawyer address: Beijing Dongzhimen South Street3Actually building No.18Buildings; e-mail:Shenbinti@yahoo.com.cn Business telephone:(+86)15301115671(+86)13661313967 ;Interactive blog:Http://blog.sina.com.cn/shenbinti