Can the key female employees be lifted to the labor contract today?How to prevent the risk of female employees ‘hidden pregnancy risk "Phase III" female employees’ tricky problems
Recently, Mr. Y, the person in charge of the human resources of a company, encountered a very depressed thing: "Female employees announced their pregnancy for three days after they joined the job.
During the interview, the employee emphasized that he was not married, and he did not plan to get married in the short term. He then signed a labor contract with the company.
However, I told the supervisor for three days after joining the job and had to keep the fetus and rest.During pregnancy, for various reasons, you often ask for leave.
The company also paid it, paid social security, and sent people to visit after their birth.Unexpectedly, as soon as maternity leave ended, the employee called and resigned.
Mr. Y said: "If she doesn’t know that she is pregnant in advance, we can accept it. Later, I learned that she was working on the premise of knowing her pregnancy.There are more people who are pregnant in hidden pregnancy, which will affect other women fair treatment during employment.
Employees like this "hidden pregnancy ‘hurt the company. For more than a year, pregnant employees have hardly created labor value for the company, but the unit must pay salary and pay social security.
Can female employees hidden in employment companies to relieve labor contracts?
Let’s take a look at the relevant laws and regulations:
"Labor Contract Law" Article 39
According to the workers’ means of fraud, coercion, or the danger of ride, the user unit can establish a labor contract without the real meaning of the real meaning.
Therefore, the company has the right to understand the basic situation of the direct related to the employees and the labor contract, such as lies or forgery of academic qualifications or work experience, which is closely related to posts.Lift the labor contract between the two parties according to Article 39 of the Labor Law.
If the position recruited by the enterprise is a taboo position for pregnant women or is not suitable for pregnant women to work, the company should truthfully explain whether the position of the position has been told to explain whether it is pregnant.Otherwise, if the candidate is in charge of admission, it is legal to relieve the labor contract.
However, the law also stipulates the female employees of pregnancy:
According to the Special Regulations for the Labor Protection of Women’s Workers "
Female employees enjoy 98 days of maternity leave, of which 15 days can be taken during delivery; those who are difficult to give birth will increase maternity leave for 15 days; those who have multiple births, have 1 babies per extra, increase their maternity leave for 15 days.
Employers must not reduce their wages due to pregnancy, fertility, breastfeeding, dismissal, lift their labor or hire contracts.
In other words, if the posts recruited by an enterprise are not taboos in pregnant women or are not suitable for pregnant women to work, whether female candidates are pregnant are the scope of personal privacy. Candidates have the right to not provide or notify relevant information.
This concealment behavior is a dishonesty behavior. It can only make moral evaluations, and it does not cause labor contracts to be invalid.
If the position recruited by the enterprise is a taboo position for pregnant women or is not suitable for pregnant women to work, the candidate is hidden in the job on the premise that the company has informed the nature of the post, and the company’s termination of the labor contract is legal.
If the position recruited by the enterprise is not a taboo position in pregnant women or is not suitable for pregnant women to work, and female employees are hidden in their posts, they will not cause labor contracts to be invalid.
How to avoid hidden female employees HR and safeguard the interests of corporate interests
From the perspective of an enterprise, of course, employees do not want employees to be pregnant.Without creating value, enterprises must give employees maternity leave, sick leave salary and social security benefits, and the loss is quite large.
Therefore, how should HR safeguard the interests of enterprises within the scope of law?
(1) Inform the nature of the post and labor intensity in advance
Inform women in advance, the factors of the nature of the position and the strength of the labor, and whether the candidate is pregnant with a close relationship with the performance of the position.If a female candidate concealed the fact that he had been pregnant before he joined the job, enterprises could terminate the labor contract according to law without paying economic compensation.
(2) Medical examination before joining
Before the employee enrolls, enterprises need to conduct necessary physical examination measures, and at the same time, they cannot violate the law’s compulsory regulations on hiring female employees.
(3) Maternity insurance to avoid women’s maternity leave risk
According to the "Special Provisions of Women’s Workers’ Labor Protection", those who have participated in maternity insurance have been paid by the maternity subsidy during maternity leave; if the maternity insurance is not participated, the employer shall be paid in accordance with the standard of the pre -maternal leave of the female employee.In this way, the burden of employers will be greatly reduced.
Although pregnancy is a right, female employees are currently a very helpless state. Female employees’ job status during pregnancy is also a guarantee for themselves. If they admit that they are pregnant during the interview, it is difficult to get employment opportunities.Not to mention, it is also a deception for enterprises.
Treatment of Terry Thoughts of Female Employees in Phase III
The "third phase" refers to the collective name of female employees during pregnancy (pregnancy to 15 days before giving birth), birth period (usually 15 days before delivery to 75 days after delivery), and breastfeeding (postpartum to child full one year old).
Q1: Under the circumstances of the female employees during the third phase, can the unit unilaterally unilaterally lift their labor contract?
A1: According to Article 42 of the Labor Contract Law: "If a worker has one of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Article 40 and 41 of this law:4) Female employees during pregnancy, birth, and lactation. "
However, the employer can exercise the right to unilateral lifting in accordance with the provisions of Article 39 of the Labor Contract Law, and cancel the labor contract with pregnant women. Specifically, there are major faults in the following workers:
(1) If it is proved to be not met the conditions for hiring during the trial period;
(2) The rules and regulations of the employer are seriously violated;
(3) Seriously negligible, fraud in business, causing major damage to employers;
(4) Establishing labor relations with other employers at the same time with other employers will seriously affect the work tasks of the unit, or if they are proposed by the use of people, they refuse to make corrections;
(5) For fraud, coercion, or the danger of taking people, the other party enables or changes the labor contract if it violates the real meaning;
(6) Criminal responsibility is investigated in accordance with the law.
The Labor Contract Law pointed out that Article 40 and 41 have no compulsory termination effect on female employees in the third phase, but Article 39 did not point out.
Although the law and morality have the same role, the law is the ethics of writing, and morality is the inner law.If major faults can be exempted, morality will also say no, so when there are major faults in the third phase of female employees, the company can unilaterally relieve its labor contract.
Q2: How to deal with the negative idling of female employees in the third phase?
A2: Article 5 of the Special Regulations for the Protection of Female Workers stipulates: "Employers must not reduce their wages due to pregnancy, fertility, breastfeeding due to female employees, dismissal, lift labor or hire contracts."
The third phase of female employees are specially protected by the law, so even if they are negatively idle, they cannot be dismissed. They can be resolved by negotiating and posting.
Q3: How to deal with the position of the third phase of female employees who returned to the company after being dissatisfied?
A3: If there must be a job that someone must do, you should hand over the intercourse with the alternative, or negotiate and wait for the female employees to end the nurturing period and return to the company.Negotiation, wait for his adjustment mentality to adjust to other positions.
If you do not have to do it, you can find the company for a temporary replacement.
At the end
The third phase of female employees are protected by the law and at the same time they are in a special period in a special period. HR should be more cautious when responding to avoid causing legal disputes.
Whether it is a third -phase female employee problem, or difficult problems such as work injury identification, resignation disputes, vacations, and tax deductions, a qualified HR must be based on the principle of the law to be relying on the law.Basis, do your best to protect the company’s interests ~