How to manage the probation period of employees
1, formulate the system and unify the specifications.
Our Human Resources Department first formulated the Measures for the Management of Employee Probation Period, which made detailed provisions on the responsibilities of employees and departments, employee entry procedures, various agreements, contract signing, probation assessment, relevant records, employment conditions, probation extension and various forms, and made appropriate revisions every year to stipulate and guide the management of probation period of various departments and employees in the company.
In my opinion, it is most important to formulate a system suitable for the company's probation management. First, there must be no provisions that violate laws and regulations. Second, don't pursue perfection, it is suitable for the actual situation of the company and easy to implement. If there is no corresponding system, but everyone does it by experience and feeling, it will only be a mess.
2. Some contents before employment.
Before joining any position, we will reach an agreement with the employees on the following contents. If there is no agreement, we generally will not issue an OFFER and join the job.
(1) wages and benefits. Although the company has a salary grading system, according to the interview situation, it is still necessary to reach an agreement with the successful interviewer on salary (including specific amount, grade, salary scale and basic overtime pay) and bonus (usual bonus, attendance award, year-end award, seniority award, overtime award, quality award, over-production award, monthly meritorious award, etc.). ) and welfare (five insurance and one gold base, telephone charges, utilities, accommodation).
(2) probation period. At present, the first labor contract signed with employees has a term of one year and a probation period of one month. This is also legal and will be agreed after explaining it to employees. We won't set the probation period at will, because the workers now are well aware of the legal provisions.
(3) post agreement. It is also important to specify the employment department, post and work content of employees. The company will provide job descriptions, and their immediate superiors will explain their contents and other possible temporary work to reach a basic understanding.
(4) Other matters. According to employees' own requirements or the company's special requirements for a certain position, there may be some special agreements. For example, the company employs some foreigners with special requirements such as passports, social security, entry and exit, accommodation and so on. The HR department also needs to negotiate with them to avoid unnecessary troubles after entering the company. Of course, some employees need to explain clearly how to handle specific procedures such as social security transfer and new rural cooperative medical system. Other employees will ask about the company's management style, leadership education, local people, organizational structure, development planning, whether the work has health effects, etc. And they also need to tell the truth.
3. Some problems in the probation period.
After employees enter the probation period, they start a series of work, which is also the core part of probation management. There are many precautions, otherwise it may cause labor disputes.
(2) induction training management. Discipline, attendance and assessment of induction training, adaptation or recognition of the company's corporate culture through observation and question and answer. During this period of time, it is actually very convenient to investigate the personality, behavior and work habits of employees, and employees can also have a deeper understanding of the company's corporate culture, and both sides can judge whether they are themselves or not. What do you want? In order to make a decision as soon as possible, this time can not only grasp the initial requirements for entry, but also deepen mutual understanding. It should be noted that employees should be gradually transformed into employees with company characteristics as much as possible, so that people who are not suitable for the company can make choices earlier.
(3) the implementation of performance appraisal. After employees enter their respective posts, we usually make a weekly work plan assessment. If there is a specific project, it will be assessed according to the project progress, including KPI content, as well as usual coordination and disciplinary assessment, so as to facilitate the employing department to find unqualified personnel in time and make decisions as soon as possible. The human resources department will also conduct spot checks on these assessments to prevent the employing department from retaliating based on personal hobbies.
(4) Work tracking. For employees' personal work, the direct supervisor or master should make necessary records, and employees should also keep work logs to record their daily work plans and work completion, as well as their work exchanges. There are no strict rules on the form of records. As long as things are made clear, the human resources department should conduct spot checks.
(5) Management by employing department. The Human Resources Department and the Vice President should strengthen the supervision and management of various employing departments, especially the probation management of some important positions, and must not let some leaders do it by their own temperament, let alone let the small team consciousness and phenomena with serious personal prejudice do it. We have seen some department leaders crack down on and crowd out employees who are not from his hometown. This is extremely unfavorable to the team building and future development of the company, and all available resources must be used to give criticism, education and punishment.
(6) Collection of all kinds of evidence. During the probation period of employees, we require employees, the employing department, the immediate superior and the human resources department to pay attention to the collection of all data and facts, speak with facts and pay attention to integrity. Try to do what you can write, e-mail, voice and other information, and try to be a witness if you can't form it. Whether it can be used in the future or not, it is necessary to form relevant records.
4. Go through the formalities of becoming a full member.
Under normal circumstances, one week before the end of the probation period, employees fill in the personal evaluation form for probation period, which will be directly evaluated by their superiors. The employing department and HR department will evaluate it one after another. Combined with weekly assessment, the probation period is comprehensively evaluated. Employees with an assessment score of 70 or above who have no major violation of discipline will be given full-time jobs and approved by the leaders. The Human Resources Department will publish the list of employees who will become regular employees, and the salary will be implemented through prior consultation.
5. Special circumstances.
If the assessment score is below 69 points or there is a major violation of discipline (such as absenteeism for more than 2 days, drunken work, or demerit, etc.). ), it will be notified in writing to extend the trial for one month (signature is required).
If the test score is below 60 points or there are serious violations of discipline (such as absenteeism for less than 3 days, demerits, etc.). ), will inform the employee in writing that the probation period is unqualified (requires his signature) and terminate the labor relationship.
Although the above situation is stipulated in the probation period management method, and employees already know that it should be handled in this way, because it affects personal career or employee's mood, the employing department and HR department need to communicate with employees properly to avoid causing other unnecessary disputes.
6. Two suggestions on probation period.
For the management of probationary employees, we are prone to make the following two mistakes, so I want to remind you of two points.
(1) Ignore it and let it develop. We once had an employee who was assigned to the employing department in the afternoon after induction training. After arranging the post, he looked at the recipe and study documents. I asked him during the inspection the next morning. He said that he would arrange to look at the system and learn documents. He didn't arrange for the master to take him, nor did he arrange for others to talk to him. I told the person in charge of the employment department about this matter, and they said to correct it immediately. As a result, when I went to see it in the afternoon, the employees had already left. I feel that employees have a bad relationship and lack communication and care, and I am afraid it will be the same in the future. Work was not fun, so I left? . The above examples clearly tell us that the actual employment situation of the employing department is very important.
(2) the review is too strict, and the effect is not good in the short term. Is it easier to ask the employing department? Newcomer? Get the results early. As we all know, no matter how strong a newcomer is, it takes some time to get familiar with the specific situation of the company, including the process and system. It is unrealistic to expect the results within one week or 10 days. Some jobs take longer to see the results. As long as you track the new person's work process, whether the work is serious, and whether the work methods and skills are appropriate, this is more important. Of course, if the time is long or the probation period is about to expire, it is unreasonable that there is no better result.
Judging from the provisions of the Labor Contract Law, the probation period is strictly stipulated in Articles 16 to 2 1 in Chapter II, requiring the employing department to abide by the law, otherwise it will be punished according to the relevant provisions in Chapter VII. It can be said that the free space of the employing department in the probation period of employees is very limited, and those behaviors that wander in the legal gap will be supervised by employees and labor departments. If it cannot be corrected in time, it will be punished accordingly.
Among all kinds of HR certification examinations, HR lawyers are popular at present, which is actually aimed at the professional operation of employers to abide by labor law, labor contract law, various judicial interpretations and local regulations, avoiding the defect that ordinary HR can not concentrate on learning and being familiar with all labor laws and regulations because of the tedious daily affairs. In my opinion, in the absence of HR lawyers or corporate legal advisers who are not proficient in labor laws and regulations in general enterprises, our HR staff can also spend time studying and discussing relevant labor laws and regulations, guide their own HR behaviors to be legal, and remind and correct illegal labor behaviors in other departments.
Legal Risk Management of Employees' Probation Period
I. Overview
(A) the concept
Probation period means that when the labor relationship is still informal, the employer will assess whether the employee is qualified and the employee will also assess whether the employer meets his own requirements. This is a manifestation of mutual choice.
(2) Legal provisions
The "Labor Contract Law" has made targeted provisions on abuse and long probation period.
1. Limit the shortest term of a fixed-term labor contract in which the probation period can be agreed, and refine the probation period according to the length of the labor contract on the basis that the longest probation period stipulated in the labor law shall not exceed six months. The specific provisions are: if the term of the labor contract is more than three months, a probation period may be agreed. In other words, the minimum starting point of the probation period stipulated in the fixed-term labor contract is three months. If the term of the labor contract is more than one year but less than three years, the probation period shall not exceed two months; The probation period of fixed-term and non-fixed-term labor contracts of more than three years shall not exceed six months. This is a concrete measure of the Labor Contract Law, which stipulates that the probation period is six months in any case.
2. The same employer and the same worker can only agree on a probation period.
This involves the understanding of the nature of probation in labor contracts. Probation period refers to the time limit for the employer to further investigate the ideological and moral character, labor attitude, actual working ability and physical condition of the newly hired employees. These situations have been basically clear during the probation period of hiring workers.
3. In order to curb the phenomenon of short-term employment by employers, probation period cannot be stipulated in all labor contracts.
A probation period may not be stipulated in a labor contract whose term is to complete certain tasks or whose term is less than three months.
4. If the labor contract only stipulates the probation period or the term of the labor contract is the same as the probation period, the probation period is not established and the term is the term of the labor contract.
Second, the legal risk management of employee probation period
Article 19 of the Labor Contract Law: If the term of the labor contract is more than three months but less than one year, the probation period shall not exceed one month; If the term of the labor contract is more than one year but less than three years, the probation period shall not exceed two months; The probation period of a labor contract with a fixed term of more than three years or without a fixed term shall not exceed six months. A probation period may not be stipulated in a labor contract whose term is to complete certain tasks or whose term is less than three months.
Legal risks:
1, beyond the legal part is invalid.
If the agreed probation period exceeds the time stipulated in the Labor Contract Law, the excess part shall be invalid. If the employee still maintains labor relations beyond the statutory probation period, it is deemed that the employee's probation period has passed and he has entered the formal labor contract period. Laborers have the right to demand labor remuneration according to the standard of formal labor contract term, and the employer may not dissolve or terminate the labor contract according to the probation period.
2, administrative punishment and compensation
Article 83 of the Labor Contract Law stipulates that if the employer violates the provisions of this law and agrees with the employee on a probation period, the labor administrative department shall order it to make corrections; If the illegally agreed probation period has been fulfilled, the original employer shall take the monthly salary of the employee after the expiration of the probation period as the standard. Pay compensation to workers according to the time that has been fulfilled beyond the statutory probation period. That is to say, if the illegally agreed probation period has been fulfilled, the employer shall pay the employee's salary in accordance with the labor contract in addition to the agreed probation period salary standard? Turn positive? After the wage standard to pay compensation to workers.
Coping strategies:
1, strictly abide by legal standards.
When agreeing on the probation period, we must strictly abide by the provisions of the labor contract law and cannot exceed the standard:
(1) If the term of the labor contract is less than three months, the probation period shall not be agreed.
(2) If the term of the labor contract is more than three months but less than one year, the probation period shall not exceed one month.
(3) If the term of the labor contract is more than one year but less than three years, the probation period shall not exceed two months.
(4) The probation period of a labor contract with a fixed term of more than three years and without a fixed term shall not exceed six months.
(5) A probation period may not be stipulated in a labor contract whose term is to complete certain tasks.
(6) The probation period shall not be agreed for part-time employment.
2. Set the contract term cleverly to make the probation period the longest.
In terms of legal standards, in order to make the probation period the longest, enterprises should skillfully set the contract term: for example, a three-year labor contract, the probation period can reach six months, but the labor contract period is two years and 354 days (less than three years), and the probation period should not exceed two months. The difference between one day and the probation period can be four months. Therefore, the employer can choose a suitable contract period to set a probation period that is in line with the interests of the enterprise.
For employees who are not sure whether they are employed for a long time, a relatively short labor contract period can be stipulated, but it includes a longer probation period. If the contract term is 1 year 1 month, the probation period is 2 months; The contract term is 3 years, 1 month, and the probation period is 6 months.
In addition, try to avoid holidays during the probation period, such as the Spring Festival. Otherwise, due to holidays, employees have less working hours, and the probation period that can be used for inspection is actually very short.
Thirdly, the legal risk management of employees leaving during probation period.
The Labor Contract Law stipulates that the employee may terminate the labor contract by giving a written notice to the employer 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probation period. ? Article 21 During the probation period, the employing unit may not terminate the labor contract except under the circumstances specified in Article 39 and Item 1 and Item 2 of Article 40 of this Law. If the employer terminates the labor contract during the probation period, it shall explain the reasons to the employee.
(1) During the probation period, the employer shall not terminate the labor contract with the employee at will.
Many employers believe that they can terminate their labor relations with workers at any time during the probation period. Actually, this is a misunderstanding. Abuse of the right to unilaterally terminate the probation period is often a problem that employers are prone to. Its performance is: when there is no probation period, or the probation period is illegal, or the probation period has passed, the labor contract is still terminated on the grounds that the probation period does not meet the employment conditions. The resulting disputes, arbitration and litigation units will inevitably lose. Therefore, we must put forward a suggestion: the employee's labor contract shall not be dissolved at will during the probation period.
(two) the employer shall provide proof of employment conditions and have publicized and informed the workers.
Item (1) of Article 39 of the Labor Contract Law stipulates that if the employee is proved to be unqualified for employment during the probation period, the employer may terminate the labor contract with the employee? . The main point of this regulation is: the employer must first prove whether the unit has? Employment conditions? . If there are employment conditions, it is necessary to prove that the employee does not meet the employment conditions when dismissing the employee. Employers don't know what the employment conditions are, or they can't prove that the employment conditions have been publicized and the workers already know them, which is an important reason for their failure in handling labor disputes. If the labor contract is terminated in violation of the regulations, the employing unit shall bear legal responsibility and pay compensation to the laborer twice as much as the economic compensation. Therefore, the employment conditions that have been publicized and informed to the workers, and the examination certificate that the workers do not meet the employment conditions during the probation period, have become important evidence that the employer must provide. Therefore, employers should make their employment conditions concrete, written, publicized and evidenced as much as possible.
(three) the skills and methods of the employer to prove that the employment conditions have been publicized and informed.
How to prove that the employment conditions have been publicized and informed to the employed workers? There are the following methods:
1. Publicize through the recruitment announcement and issue the recruitment brochure. It is fixed in a certain way when it is publicized, so as to keep the litigation evidence; But in fact, posting on bulletin boards is difficult to save, if it is a newspaper that can be saved and published.
2. When recruiting employees, express the employment conditions to them and ask the employees to sign for confirmation. The best way is to print it on the "employee recruitment registration form", let the candidates fill it out and read it, and then let them sign it to show their knowledge.
3. Send an employment letter stating the employment conditions. Before establishing labor relations, express the employment conditions to employees by sending employment letters and ask them to sign for confirmation.
4. The employment conditions are clearly stipulated in the design terms of the labor contract or do not meet the employment conditions. For example, it can be stipulated in the labor contract that Party B does not meet the employment conditions in any of the following circumstances: (1) concealing the real situation and telling false information when providing basic information about himself, which violates the requirements of good faith; (two) occupation skill examination is unqualified, does not meet the job requirements; (3) the body suffers from diseases that are not suitable for the post; (4) Failing to complete labor and work tasks according to job responsibilities; (5) Other circumstances that do not meet the post personality requirements.
5. Make detailed provisions on employment conditions in the labor rules and regulations. If the labor rules and regulations stipulate the employment conditions, the employee shall be informed before signing the labor contract, which can be used as an annex to the labor contract. It is suggested that employers adopt 2, 4 and 5 methods, which are simple and easy to operate and inexpensive.
(four) the skills and methods of the employer to prove that the employee does not meet the employment conditions during the probation period.
1. Evaluate and appraise the probationary employees, and save the written appraisal opinions. In the case of employment conditions, it is also necessary to prove that it does not meet the employment conditions. This urges the employer to establish a probation assessment system. The employing unit establishes the employee probation assessment system, arranges the new employee probation work plan, and assesses and evaluates the new employee's probation performance by means of special person leading the class, centralized training, organizing written examination and recording daily performance and performance, so as to know whether the new employee meets the employment conditions during the probation period. For employees who have a probation period, the assessment results during the probation period can be used as proof that employees meet the employment conditions.
2. Explain the reasons in writing to the employees who terminate the labor contract during the probation period, and keep the receipt. Article 21 of the labor contract law stipulates that if the employer terminates the labor contract during the probation period, it shall explain the reasons to the employee? . Here? Explain why? The law does not stipulate that it must be in writing, but from the perspective of proof, the proposal is in writing and the laborer is required to sign for it.
Fourth, how to terminate the labor contract on the grounds that it does not meet the employment conditions?
Among the eight situations in which the employer terminates the labor contract during the probation period, the termination that does not meet the employment conditions is the most common one. Specifically, the termination that does not meet the employment conditions should be grasped from the following three points: the substantive conditions, program control and time control of the termination of the probation period.
(a) the substantive conditions for the termination of the probation period
As the name implies, the essential condition for the termination of the probation period is that the employee does not meet the employment conditions, so there are a series of problems here, such as what the employment conditions are, why the employment conditions should be set, and how to set them.
1. What are the employment conditions? Employment conditions are the final conditions for employers to determine the workers to be employed. Those who meet the employment conditions will be transferred to full employment after the probation period expires.
Employment conditions are different from recruitment conditions, and recruitment conditions are only the most basic qualification requirements for employers to select candidates during recruitment. In addition, the writing of recruitment conditions should be relatively simple, so as to attract more job seekers to apply, while the recruitment conditions should be as strict and perfect as possible, and mainly based on the assessment of workers' ability, which is more operable.
2. Why should I set the employment conditions? Failure to meet the employment conditions is the essential condition for the termination of the probation period, so the importance of setting the employment conditions is self-evident. First of all, for workers, employment conditions are the code of conduct for them to start working. Setting employment conditions is equivalent to setting a goal for workers, and all behaviors of workers will be carried out around this goal. Secondly, for employers, the probation assessment of employees should also focus on the pre-set employment conditions. Through the probation period assessment, it is determined whether the new employee meets the employment conditions. If the employee meets the employment conditions, he will become a regular employee, and if he does not meet the employment conditions, he can immediately terminate the labor contract; Finally, for the adjudication organs, that is, the first instance and the second instance, the employment conditions are the main basis for them to judge whether it is legal for the employer and the employee to terminate the labor contract. In practice, it is not uncommon for employers to lose the case because they did not set clear employment conditions in advance.
3. How to set the employment conditions? From the above analysis, we can see that the setting of employment conditions is the key to terminate the labor contract during the probation period. If the employer terminates the labor contract with the employee on the grounds that it does not meet the employment conditions, it must first have clear employment conditions and let the employee know. So how to set the employment conditions? The author believes that the setting of employment conditions can be carried out from two aspects: * * and personality.
So-called? * * * Sex? That is, all employees should have the basic conditions, such as honesty and trustworthiness, such as not undertaking the obligation of non-competition. The employment conditions of * * * can be defined by rules and regulations.
So-called? Personality? That is, the special requirements of each post, such as academic qualifications and skills requirements. The author believes that individual employment conditions can be clarified by the way that both parties sign an employment conditions agreement separately.
(B) the program control of the termination of the probation period
When the employer terminates the labor contract with the employee during the probation period, it needs to follow strict procedures, one is to explain the reasons to the employee, and the other is to go through the trade union procedure.
1, explain the reason to the workers. Article 2 1 of the Labor Contract Law stipulates that if an employer terminates the labor contract during the probation period, it shall explain the reasons to the employee. ?
2. Go through the trade union formalities. Article 43 of the Labor Contract Law stipulates: When an employer unilaterally terminates a labor contract, it shall notify the trade union of the reasons in advance. If the employer violates laws, administrative regulations or the provisions of the labor contract, the trade union has the right to ask the employer to correct it. The employing unit shall study the opinions of the trade union and notify the trade union of the results in writing. ?
Trade union procedure is a necessary procedure for employers to unilaterally dismiss employees. Here? When an employer unilaterally terminates a labor contract, it shall notify the trade union of the reasons in advance? Is it to protect trade unions from enterprises? The right to know about firing employees? ; ? Where an employer violates laws, administrative regulations or labor contracts, the trade union has the right to ask the employer to correct it? Is it the right to work for the trade union? The right to amend the proposal of unfair dismissal? . There are two points worthy of our attention about the supervision procedure of trade unions. First, although the law gives trade unions? The right to know about firing employees? And then what? The right to amend the proposal of unfair dismissal? But the final decision to dismiss employees is unilaterally decided by the enterprise. Is the enterprise just? Study the opinions of the trade union and inform the trade union of the results in writing? ; Second, if the enterprise and the employee negotiate to terminate the labor contract, there is no need to go through the trade union procedure.
(3) the time limit for the termination of the probation period
During the probation period, the employer may terminate the labor contract on the grounds that it does not meet the employment conditions, or it may notify the employee to terminate the labor contract at any time without prior notice. This is quite different from the termination of the labor contract during the probation period, which requires the employee to notify the employer three days in advance.
In practice, there has been such a case: a company's evaluation of employees' probation period has to go through two evaluations, first of all, the business department where employees are located. The probation period is about to expire when the business department conducts the assessment, and the probation period has passed when the human resources department makes the final assessment result. In this case, when the human resources department made the final assessment results, the company actually lost the conditions to terminate the labor contract on the grounds that it did not meet the employment conditions. This simple case reminds us that the decision to terminate the labor contract on the grounds that it does not meet the employment conditions must be made and delivered to the workers during the probation period, which also means that the assessment of the probation period should be made in advance, and as far as possible, enough time should be reserved before the expiration of the probation period. In my opinion, half a month before the end of the probation period is appropriate.