(1) If the training of employees by the enterprise is not involved, there is no need to pay liquidated damages, just notify the company in writing 30 days in advance;
(2) If the employer provides special training expenses for the workers and conducts professional and technical training, it may conclude an agreement with the workers to stipulate the service period. If the laborer violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement.
Employees whose contracts have not expired do not need compensation when they leave. As long as the employer is notified 30 days in advance, as for compensation, generally speaking, there is no need for compensation. If the employer has trained you in professional skills and agreed on the service period, you will have to pay liquidated damages if you resign before the expiration, but there is no liquidated damages. Resign without paying liquidated damages under the following circumstances
If the employee unilaterally terminates the labor contract, you must notify the employer in writing 30 days in advance.
Although the law gives you the freedom to terminate the labor contract, you should also protect the legitimate interests of the employer. Your salary can be calculated to half a year. The compensation items you should bear to the employer include: the expenses paid by recruiting and hiring workers; Training fees paid to workers (otherwise agreed by both parties); Direct economic losses caused to production, operation and wages; Other compensation items stipulated in the contract. Article 38 The employee may terminate the labor contract under any of the following circumstances:
(1) Failing to provide labor protection or working conditions as agreed in the labor contract;
(2) Failing to pay labor remuneration in full and on time;
(3) Failing to pay social insurance premiums for laborers according to law;
(4) The rules and regulations of the employing unit violate the provisions of laws and regulations and damage the rights and interests of workers;
(5) The labor contract is invalid due to the circumstances specified in the first paragraph of Article 26 of this Law;
(6) Other circumstances under which the laborer can terminate the labor contract as stipulated by laws and administrative regulations. If the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or if the employer illegally directs or forces the risky operation to endanger the personal safety of the laborer, the laborer may immediately terminate the labor contract without notifying the employer in advance. "You can terminate the labor contract at any time without being responsible.
If the employing unit provides special training expenses and conducts professional technical training for the workers, it may conclude an agreement with the workers to stipulate the service period.
If the laborer violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement. The amount of liquidated damages shall not exceed the training expenses provided by the employer. The liquidated damages that the employer requires the laborer to pay shall not exceed the training expenses that should be shared for the unfinished part of the service period.
If the employer and the employee agree on the service period, it will not affect the employee's improvement of labor remuneration in accordance with the normal wage adjustment mechanism during the service period.
What is the compensation standard for unilateral termination of the contract?
The compensation standard for unilateral termination of the contract is:
1. If the amount of liquidated damages agreed by the parties does not exceed 30% of the actual loss, compensation shall be made according to the agreement;
2. If the amount is too high or too low, the parties may request the court or arbitration institution to make appropriate adjustments.
What should I pay attention to when resigning?
According to the provisions of the Labor Contract Law, the employee may terminate the labor contract by notifying the employer in writing 30 days in advance, or notifying the employer 3 days in advance during the probation period. However, resignation does not mean leaving. In order to protect their legitimate rights and interests, employees should pay attention to the following matters when resigning:
1, notify the enterprise in advance according to law.
Employees shall notify the enterprise in strict accordance with the statutory notice period. If the boss is fired without prior notice, it is a breach of contract. Breach of contract may have to bear the corresponding liability for breach of contract and pay a "resignation fee" for nothing. The compensation for employees' illegal resignation mainly includes: the expenses incurred by employers in recruiting their employees; The training expenses paid by the employer for the workers shall be handled in accordance with the agreement if both parties agree otherwise; Direct economic losses caused to production, operation and work.
2. Keep the certificate of written notice to the enterprise.
When employees exercise the right of early termination, they must keep the notice voucher and a copy. If there is no valid certificate, once the employer denies that it has not received the resignation report 30 days in advance, the employee still bears the risk of breach of contract. Tom Chang, a lawyer, suggested that employees should be vigilant if enterprises refuse to sign the notification receipt. You can use EMS mail, mark the words "Notice of Early Termination of Labor Contract" on the courier receipt, and keep the courier receipt.
3. If the service period agreement has been signed, it is still necessary to compensate for the liquidated damages if it is terminated in advance.
Service period agreement mainly refers to the agreement that workers should work for the employer for a certain period of time because they participate in the special training fees for professional and technical training provided by the employer. Because the employer has already paid the consideration for providing special training, even if the employee fulfills the obligation to cancel the notice in advance according to law, he still needs to bear the liquidated damages agreed during the service period. At this time, employees can only defend from the perspectives of whether the training provided by the unit belongs to professional skills training and how much training fees have actually been paid (the penalty is limited to this).
In reality, there are actually many cases of resignation due to dissatisfaction with the term of the labor contract, some of which are due to the personal reasons of the workers, and some are due to the behavior of the employer that harms the interests of the workers, which leads to the resignation of the workers. In the latter case, the employee can ask the employer for compensation while resigning.
How to compensate the company for leaving without signing a labor contract?
If no labor contract is signed, it can be counted as an open-ended contract, and the unit can terminate the contract by paying the economic compensation for the termination of the contract, which is not the key to the problem. The economic compensation shall be paid according to the standard of one month's salary for each full year of the employee's working years in the unit. For more than six months but less than one year, it shall be counted as one year; If it is less than six months, economic compensation of half a month's salary shall be paid to the workers.
How many months can I get unemployment benefits if I resign?
Unemployment benefits for resignation can be paid for up to 24 months. The payment period of unemployment insurance benefits is as follows:
1. If the accumulated payment before unemployment is over one year but less than three years, the longest period of receiving unemployment insurance benefits is six months;
2. If the accumulated payment before unemployment is over three years but less than five years, the maximum period for receiving unemployment insurance benefits is twelve months;
3. If the accumulated payment before unemployment is over five years but less than ten years, the maximum period for receiving unemployment insurance benefits is eighteen months;
4. If the accumulated payment before unemployment is more than ten years, the longest period of receiving unemployment insurance money is twenty-four months.
A labor contract is an expression of the will of both parties. The terms of the labor contract are legally binding on both parties and both parties must abide by them. The term of the labor contract is also one of the necessary terms of the labor contract, but the laborer has the right to unilaterally terminate the labor contract before the expiration of the term stipulated in the labor contract, mainly because the laborer is in a weak position relative to the employer, so the law directly stipulates the right of the laborer to unilaterally terminate the labor contract. Article 37 of the Labor Contract Law: A laborer 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. Although the law directly stipulates that the laborer has the right to unilaterally terminate the labor contract, according to Article 37 of the Labor Contract Law, it is necessary for the laborer to unilaterally terminate the labor contract in order to give consideration to the interests of the employer. This resignation procedure is mainly stipulated in two aspects:
First, notice thirty days in advance, and notice three days in advance for suspended sentences. While enjoying the right to terminate the labor contract unilaterally, the laborer should also abide by the procedure of dissolving the labor contract according to law, that is, the laborer should notify the employer 30 days before the official use period. The main purpose is to make it convenient for the employer to have enough time to fill the vacancy of employees' resignation and avoid unnecessary losses to the employer due to the termination of the labor contract.
The second is to notify the employer in writing. Because the time of the notice is directly related to the starting time of the termination of the labor contract, it is also related to the wage calculation of the workers, so it must be expressed in an effective and rigorous way, in order to protect the interests of both parties and avoid unnecessary disputes. However, it should be noted that the written form here not only refers to the form of paper records, but also includes forms that can tangibly express the content, such as contracts, letters and data messages (including telegrams, telex, faxes, electronic data interchange and e-mails). Therefore, in practice, except oral form, other forms can basically be called written form. For example, send a resignation notice by EMS express, send an email to the unit mailbox, and send a resignation message to the competent leader. , can constitute an effective way in practice. Under the premise of not violating the law, if the unit has resignation rules and regulations, it should also be handled in accordance with the rules and regulations of the unit. The rules and regulations of some units stipulate that you cannot resign after three months, or you must get approval. This is an invalid system and can be ignored.
Let's talk about whether it is necessary to pay liquidated damages if the employee resigns within the term of the labor contract.
Liquidated damages are common in ordinary economic contracts, which means that the parties to the contract agree to pay a certain amount of money to the other party when one party fails to perform its contractual obligations. In practice, many employers have agreed on high liquidated damages in labor contracts, the most common of which is the term of labor contracts. In order to avoid the influence of employees' frequent resignation on the interests of the unit, the employer has agreed to pay a very high penalty during the contract period to achieve the purpose of binding employees.
However, is the liquidated damages stipulated in this labor contract really effective? Before answering this question, let's look at how the law stipulates. According to the provisions of Article 25 of the Labor Contract Law, except in the circumstances stipulated in Articles 22 and 23 of the Labor Contract Law, the employer shall not agree with the employee that the employee shall bear the liquidated damages. Article 23 of the Labor Contract Law stipulates the obligation of confidentiality and labor prohibition, so this provision has nothing to do with the current legal topic. Let's look at the provisions of article 22. Where an employer provides special training fees for laborers and provides them with professional and technical training, it may conclude an agreement with the laborers to stipulate the service period. If the laborer violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement. The amount of liquidated damages for violating the service period shall not exceed the training expenses provided by the employer. In case of breach of contract, the liquidated damages paid by the laborer shall not exceed the training expenses that should be shared for the unfulfilled part of the service period. If the service period agreed between the employer and the employee is long, the employer shall increase the remuneration of the employee during the service period according to the wage adjustment mechanism.
Judging from this provision, if the employer and the employee agree on liquidated damages, the employer needs to meet two conditions, one is to provide special training fees for the employees, and the other is to provide professional technical training for the employees. Only in this case can you agree with the laborer on liquidated damages. This is because employers have invested in workers in advance, which has improved their labor skills. The purpose of the employer's training for laborers is to enable laborers to perform their labor within the contract period. If the employee resigns before the expiration of the contract, it will cause corresponding losses to the employer. Therefore, the purpose of balancing the interests of both parties is achieved through such an agreement.
However, the agreement and application of liquidated damages are restricted on the premise that the employer can agree with the employee in the labor contract. From the analysis of the above provisions, Bian Xiao believes that the main reason is the limitation of the amount of liquidated damages: First, if a worker violates the contract period and leaves his job without taking up his post after receiving training, the amount of liquidated damages shall not exceed the training fee provided by the employer; Second, if the laborer has fulfilled part of the term of the labor contract, the liquidated damages shall not exceed the training expenses that should be shared for the unfulfilled part of the service period.
In practice, some employers do not provide special training fees for professional and technical training, but stipulate in the labor contract that workers have been trained and agreed on liquidated damages. In fact, if the employer fails to fulfill this obligation, this written agreement is invalid.
Legal basis:
regulations on the implementation of labor contract law
Article 26 If the service period is agreed between the employer and the employee, and the employee terminates the labor contract in accordance with Article 38 of the Labor Contract Law, it is not a violation of the service period agreement, and the employer may not require the employee to pay liquidated damages.
Under any of the following circumstances, if the employer and the employee terminate the labor contract with the agreed service period, the employee shall pay liquidated damages to the employer in accordance with the labor contract:
(1) The laborer seriously violates the rules and regulations of the employing unit;
(2) The laborer seriously neglects his duty or engages in malpractices for selfish ends, thus causing great damage to the employing unit;
(3) The laborer establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the unit, or the employer refuses to correct it;
(4) The laborer enters into or changes a labor contract against his true intention by means of fraud or coercion or taking advantage of the danger of others;
(5) The laborer is investigated for criminal responsibility according to law.
Labor Contract Law
Twenty-second during the service period, the employer can provide special training fees for workers and provide them with professional and technical training, and can conclude an agreement with the workers to stipulate the service period.
If the laborer violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement. The amount of liquidated damages shall not exceed the training expenses provided by the employer. The liquidated damages that the employer requires the laborer to pay shall not exceed the training expenses that should be shared for the unfinished part of the service period.
If the employer and the employee agree on the service period, it will not affect the employee's improvement of labor remuneration in accordance with the normal wage adjustment mechanism during the service period.
Article 36. The employer and the employee may terminate the labor contract through consultation.
Article 37 A laborer may terminate the labor contract by giving a written notice to the employing unit 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probation period.