Economic compensation refers to the economic subsidy that the employer pays to the laborer in a lump sum after the termination or termination of the labor contract.
Why do workers need such a sum of money after leaving the employer? Regarding the nature of economic compensation, many scholars have proposed three different viewpoints. The first one is the theory of liquidated damages, which means that the unit terminates the labor contract in violation of the contract, and pays liquidated damages. The second is social security theory, labor. Those who have lost their labor relations and lost their jobs, social security should leave a sum of money for the workers; the third is the theory of compensation for labor contribution, which is what we often say "no credit and hard work." Kind of view.
After the gossip is finished, the following section explains in Article 46 of the Labor Contract Law that the employer should pay economic compensation to the laborer:
[(1) The laborer terminates the labor contract in accordance with the provisions of Article 38 of this Law;] that is, if the laborer terminates the labor contract with the employer according to the following circumstances, the employer shall pay the economic compensation: First, it is not in accordance with the labor contract. Providing labor protection or labor conditions; second, failing to pay labor remuneration in full and on time; third, failing to pay social insurance premiums for laborers; fourth, the employer’s rules and regulations violate laws and regulations, and harming laborers’ rights and interests. The fifth is that the employer has fraudulent coercion or marital danger in Article 26 of the Labor Contract Law, resulting in invalid or partially invalid labor contracts; sixth, other circumstances as stipulated by laws and administrative regulations; and seventh, employers are violently coerced or illegal. The means of restricting personal freedom, forcing laborers to work; the eighth is to employ units, to violate the rules, and to force the risky operation to endanger the personal safety of workers.
In the case of the above six situations, the labor contract can be terminated immediately after the unit is notified; in the latter two cases, the labor contract can be immediately terminated without notifying the unit, and the person can leave directly.
[(2) The employer proposes to terminate the labor contract and terminate the labor contract with the laborer in accordance with the provisions of Article 36 of this Law;] that is, the laborer voluntarily proposes to leave, which is not economically compensated; If the employer proposes to terminate the labor contract and the laborer agrees, then there will be economic compensation. Therefore, the author reminds me that the resignation report cannot be easily written, so be cautious!
[(3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law;] that is, if the employer terminates the labor contract with the laborer according to the following circumstances, it needs to pay economic compensation: First, the worker is sick or not. Workers are injured, they cannot work in the original work after the prescribed medical period expires, nor can they engage in work that is separately arranged by the employer; second, the workers are not qualified for the job, and they are still unable to perform the work after training or adjustment of the job; The objective situation on which the contract was based was significantly changed, resulting in the inability to perform the labor contract. After the employer and the laborer negotiated, it was unable to reach an agreement on changing the content of the labor contract.
[(4) The employer terminates the labor contract in accordance with the provisions of Article 41 of this Law;] that is, economic layoffs. In this case, the laborer does not have any fault, so economic compensation should be given.
[5) In addition to the employer's maintenance or improvement of the conditions stipulated in the labor contract to renew the labor contract, and the laborer does not agree to the renewal, the termination of the fixed-term labor contract in accordance with the first paragraph of Article 44 of this Law; : After the expiration of the fixed-term labor contract, the employer does not reduce the treatment, the laborer is not willing to renew the contract, and does not have to pay the economic compensation; if the employer reduces the treatment, if the employee is unwilling to renew the contract, he needs to pay the economic compensation; Those who are willing to renew, but the employer does not want to renew, need to pay economic compensation.
[(6) Termination of the labor contract in accordance with the provisions of Paragraphs 4 and 5 of Article 44 of this Law;] That is: when the employer is declared bankrupt according to law, the employer is revoked of the business license, ordered to close or cancel, or the employer decides In the case of early dissolution, workers should receive economic compensation.
[(7) Other circumstances as stipulated by laws and administrative regulations. This article is a stipulated clause. For example, Article 6 of the Regulations on the Implementation of the Labor Contract Law stipulates: "If the employer fails to conclude a written labor contract with the employee for more than one month from the date of employment, it shall be in accordance with the labor contract. Article 82 of the Law stipulates that the laborer shall pay twice the monthly salary and make a written labor contract with the laborer. If the laborer does not conclude a written labor contract with the employer, the employer shall notify the laborer to terminate in writing. Labor relations, and paying economic compensation in accordance with the provisions of Article 47 of the Labor Contract Law; in addition, Article 22 of the Regulations for the Implementation of the Labor Contract Law also stipulates: “The task of labor contract with the deadline of completing certain tasks Upon completion and termination, the employer shall pay economic compensation to the employee in accordance with the provisions of Article 47 of the Labor Contract Law."
Calculation of economic compensation:
The economic compensation shall be paid to the laborer according to the standard of the laborer working in the unit and paying one month's salary every year. If the period of less than six months is less than one year, it shall be calculated on a one-year basis; if it is less than six months, the laborer shall be paid an economic compensation of half-month salary. If the monthly salary of the employee is higher than the average monthly salary of the employee in the previous year in the municipality directly under the Central Government or the district-level people's government, the standard for paying the economic compensation to the employer shall be three times the average monthly salary of the employee. The period of payment of economic compensation to them is no more than twelve years. (The term “salary” as used herein refers to the average wage of a worker 12 months before the termination or termination of a labor contract.)
Derivative issues:
Should overtime pay should be included in the scope of economic compensation?
There is no clear stipulation in this issue of the Labor Contract Law, but the Shanghai Higher People’s Court should include overtime wages when calculating the economic compensation base in the first issue of the “Civil Law Application Q&A” in 2013. It is clearly stipulated that according to the above-mentioned regulations of the Shanghai Higher People's Court, the employer should not include overtime pay when calculating the economic compensation for the termination or termination of the employee's labor contract. However, there are exceptions. If the employer maliciously counts the income that should have been included in the normal working hours into overtime wages to reduce the normal working hours wages and economic compensation standards, then this part of the “overtime pay” should be counted. Enter the economic compensation calculation base.
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