1. The situation that the laborer needs to pay liquidated damages.
Legally speaking, employers can only demand liquidated damages from workers in two situations.
1 service period
Article 22 of the Labor Contract Law: If an employer provides special training fees and professional technical training for its employees, it may conclude an agreement with the employees 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.
In this case, the second paragraph of Article 26 of the Regulations on the Implementation of the Labor Contract Law has been further refined: in 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.
Case 1
Employee A is a teacher of School B. After joining in 1 year, School B arranged for A to go to other schools in other places for free training and study (the training cost was 70,000 yuan) and signed a service agreement with him. According to the agreement, A must serve the school for five years before leaving his post. If he breaks the contract, he will have to bear a penalty of 65,438+10,000 yuan.
After training, A returned to work 1 year and submitted his resignation to B school. So school B asked Party A to pay a penalty of 654.38 million yuan.
The court held that if the laborer violates the service period agreement, he should 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, and shall be converted according to the service years. A: Although he left his job for personal reasons during his service, his behavior constitutes a breach of contract and he should pay liquidated damages. However, the liquidated damages agreed by both parties exceed the actual training fees paid, and the company can only determine the amount of liquidated damages according to the actual training fees paid.
suggestion
Regarding the amount of liquidated damages for resignation during the service period, there are clear provisions in the law, and the employer does not give as much as he wants. Therefore, when workers encounter such situations, they should ask the company to prove the actual training expenses. If the other party applies for labor arbitration or brings a lawsuit to the court, don't be afraid. You can entrust a lawyer to actively respond to the lawsuit and reduce your compensation according to law.
2 confidentiality obligations and non-competition restrictions
Article 23 of the Labor Contract Law: The employer and the employee may agree in the labor contract to keep the employer's business secrets and confidential matters related to intellectual property rights.
For the workers who have the obligation of confidentiality, the employer may stipulate the non-competition clause with the workers in the labor contract or confidentiality agreement, and stipulate that after the labor contract is dissolved or terminated, the economic compensation will be paid to the workers on a monthly basis during the non-competition period. If the laborer violates the non-competition agreement, he shall pay liquidated damages to the employer in accordance with the agreement.
Case 2
Worker A applied for the position of Marketing Manager of Company B, and both parties signed a non-competition agreement, in which Article 9 stipulated: "Both parties agree that the term of non-competition stipulated in this agreement is two years from the date of termination of their labor relations". I left after working for three years. After Party A left his post, Company B found that Party A had registered Company A and served as the legal representative, and the company's business projects were the same as those of Company B. Company B thought that the above behavior of Party A had constituted a breach of contract, so it filed a lawsuit with the court.
The court held that the non-competition clause agreed in the non-competition agreement signed between Company B and Company A did not stipulate the economic compensation for non-competition, so it can be concluded that the non-competition clause in the non-competition agreement is not binding on Company A, even if Company A violates its non-competition obligation by engaging in similar business after leaving the plaintiff company, the defendant should not be liable for breach of contract.
suggestion
When signing a non-competition agreement, workers should be optimistic about the specific content of the agreement, especially whether there is a clause on economic compensation for non-competition in the agreement. In addition, the term of the non-competition agreement is also required by law, generally not exceeding two years. If the term of the non-competition agreement signed by the employer exceeds two years, or there is no economic compensation, then this non-competition agreement has no legal effect.
Therefore, signing a non-competition agreement has no legal effect. If you encounter unreasonable liquidated damages from the employer, you can entrust a lawyer to solve it.
Second, workers need to pay compensation.
The situation that the laborer needs to pay compensation to the unit is not exactly the same as the liquidated damages mentioned above. Liquidated damages are often reflected in the labor contract or non-competition agreement signed by both parties, and the situation of breach of contract and the amount of liquidated damages are specifically agreed in the form of words. Other situations that require workers' compensation are often determined according to the actual losses and circumstances of the employer.
According to the relevant labor laws and regulations, the imputation principle adopted by the laborer to bear the liability for compensation is the "fault liability principle", that is, the laborer is "at fault", which should meet the following three conditions: First, the laborer is at fault, that is, the laborer has violated the law or breached the contract; Second, the employer has the fact of damage, that is, the laborer's violation of law or breach of contract has caused actual losses to the employer; Third, there is a causal relationship between the loss of the employer and the fault behavior of the workers. Only when the above three conditions are met, the laborer will be liable for compensation.
Specifically, it can be summarized as five aspects:
1. The employee terminates the labor contract in violation of the provisions of the Labor Contract Law, causing losses to the employer;
2. The laborer violates the confidentiality obligation or non-competition restriction agreed in the labor contract, causing losses to the employer;
3. If a laborer enters into or changes a labor contract against his true meaning by means of fraud or coercion or taking advantage of his position, thus causing losses to the employing unit, the labor contract is invalid;
4. The laborer violates the mandatory provisions of laws and administrative regulations, resulting in the labor contract being deemed invalid and causing losses to the employer;
5. The laborer and the original employer did not terminate or terminate the labor contract, but also signed a labor contract with other employers, causing losses to the original employer.
Case 3
Company A signs a labor contract with employee B, and company A employs employee B to work as a driver. One day, B had a traffic accident driving a bus of Company A. Finally, the traffic police decided that both parties were equally responsible. Because B is a duty behavior, Company A is responsible for compensation. After compensation, Company A requires Company B to compensate 65,438+10,000 yuan, and there is a dispute between the two parties.
At the trial, the court held that both Company B and Company A were at fault for the traffic accidents involved in this case, and the responsibility for the direct losses caused by the laborer's major fault to the employer should still be attributed to the comprehensive effect of the laborer's labor risk, safety education, management measures, safety level and other factors and the laborer's fault, so even if the laborer should bear the responsibility according to the contract, he should also bear a small part.
suggestion
This case is a typical case that caused losses to the unit due to gross negligence of employees. Although B has an unshirkable responsibility for this traffic accident, the specific amount of compensation should be judged according to the actual loss, the actual income of the workers and other factors. Therefore, workers can entrust a professional lawyer to respond to the lawsuit, comprehensively analyze the compensation opinions put forward by the employer, clearly point out the unreasonable part of the other party's compensation amount, and help workers reduce the compensation amount within a reasonable range.
Iii. Common legal issues concerning compensation
1 In what way does the laborer assume the liability for compensation?
Workers who cause losses to the employing unit due to their own fault may be liable for compensation in the following ways:
1. After the loss amount of the employer is determined, the employee directly pays compensation to the employer;
2. Deduct from the employee's own salary, but the monthly deduction shall not exceed 20% of the employee's monthly salary. If the deducted surplus wage is lower than the local monthly minimum wage, it shall be paid according to the minimum wage;
3. Pay compensation in one lump sum when the labor contract is dissolved or terminated.
2. No liquidated damages will be paid when the labor contract is terminated during the service period.
According to the law, the employer and the employee have agreed on the service period, and if the employee terminates the labor contract according to Article 38 of the Labor Contract Law, it is not a violation of the agreement on the service period, and the employer may not require the employee to pay liquidated damages. Including the following situations:
(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;
(four) 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.
suggestion
If you are in the service period at work and are dissatisfied with some behaviors of the company, but don't know whether you need to pay liquidated damages when you leave at this time, you can consult a professional lawyer before making a decision. So as not to cause unnecessary losses to yourself.
If there is no penalty stipulated in the service agreement, the employee may not pay it.
As mentioned above, if the employer provides special training fees and 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.
It can be seen that the liquidated damages are the result of the agreement of both parties in the labor contract, that is, the payment of liquidated damages is based on the clear agreement of both parties. If there is no agreement, the employer has no right to require the dismissed workers to pay liquidated damages.
Workers should abide by the law when they resign.
If a laborer terminates the labor contract in violation of regulations or the labor contract, causing losses to the employer, he shall compensate the employer for the following losses:
(a) the expenses paid by the employer for recruiting and employing them;
(two) the training fee paid by the employer, if otherwise agreed by both parties, shall be handled according to the agreement;
(3) Direct economic losses caused to production, operation and work;
(4) Other compensation expenses agreed in the labor contract.
In reality, the most common phenomenon of terminating a labor contract in violation of regulations is that the employee fails to notify the employer in advance according to law. For example, the probation period should be notified to the employer three days in advance, and the probation period should be notified 30 days in advance. If the employer is not notified in advance according to law, thus causing losses to the employer, the employee shall make compensation.
suggestion
Before resigning, workers must resign in accordance with legal norms to avoid legal risks caused by irregular operations. However, when the employer claims from the laborer, it needs to prove the actual loss, not the amount of compensation as the employer said. We must pay attention to this.
Fourth, Hao Yun concluded.
The law clearly stipulates that workers need to pay liquidated damages and compensation to the employer, so everyone should actively abide by the law and the company system in their work. However, because the actual situation of each case is different, how much compensation, how to compensate, whether to pay liquidated damages and so on. It's all about specific analysis. Therefore, workers need not be afraid when faced with the company's demand to pay liquidated damages or compensate for losses. They can seek the help of professional lawyers to minimize losses within the scope of the law.