First, enterprise layoffs
The term "layoffs" as mentioned in these Guidelines refers to the behavior that an enterprise cuts more than 20 people or less than 20 people at one time, but it accounts for more than 10% of the total number of employees in the enterprise.
(1) Lay off employees according to law to avoid or reduce large-scale centralized layoffs.
1. Enterprises should try their best to keep the staff stable. Take active measures to overcome temporary difficulties in production and operation, and negotiate with employees to change the contents of labor contracts such as jobs and wages according to production and operation conditions; Through collective wage negotiation, a wage increase and decrease mechanism can be established; If employees are not arranged to enjoy paid annual leave according to law, they should make overall arrangements for employees to take paid annual leave; Employees who meet Article 14 of the Labor Contract Law shall conclude an open-ended labor contract with them according to law; Through on-the-job skills training for employees, the quality of employees can be improved, talents can be reserved, and opportunities can be seized to promote transformation and upgrading. You can also use the method of "* * * to enjoy work" to alleviate the contradiction between surplus and shortage of employees in enterprises and stabilize employment. (For specific policies, please refer to the website of Shijiazhuang Human Resources and Social Security Bureau at 8668772 1).
2. Enterprises that really need to lay off staff should proceed smoothly and orderly according to law. It is necessary to implement layoffs in strict accordance with the conditions and procedures stipulated in the Labor Contract Law and other laws and regulations. It is necessary to communicate and coordinate with trade unions, employees and local labor and social security departments in advance. We must not reduce the number of statutory special personnel, give priority to those with legal difficulties, and pay attention to retaining the technical and management backbone. It is necessary to avoid large-scale centralized layoffs, do a good job in the aftermath, and prevent social instability caused by illegal layoffs, procedures and disposal.
(2) Standardizing layoffs according to law
Enterprises to implement layoffs, according to the following steps:
Enterprises confirm whether they have the conditions for layoffs → sort out the employees' situation and draw up a layoff plan → start the layoff procedure → listen to the opinions of the trade unions of enterprises and draw up a draft of the layoff plan → convene a general meeting of all employees to comprehensively revise and improve the layoff plan → report the situation to the labor and social security department → formally implement the layoff plan.
Formally implement the layoff plan = issue the certificate of dissolution or termination+settle the labor remuneration+pay the legal expenses such as economic compensation+handle the file and social security transfer procedures+organize and keep the employment materials.
1. Before layoffs are implemented, it is necessary to confirm whether it belongs to one of the following situations, otherwise layoffs are not allowed:
(1) The enterprise is reorganized in accordance with the provisions of the Enterprise Bankruptcy Law;
(2) The enterprise has serious difficulties in production and operation;
(3) The production of the enterprise changes, major technological innovation or business mode adjustment, and the labor contract is changed with the employees according to law, but layoffs are still needed;
(4) The objective economic situation on which this enterprise and its employees concluded a labor contract has changed greatly, which makes the labor contract impossible to perform.
If it is impossible to confirm whether it meets the conditions for layoffs by itself, the enterprise should not rashly lay off employees, but should communicate with the local labor and social security department in time and start the layoff procedure after confirmation by the labor and social security department.
2. After determining that layoffs can be implemented, first sort out the employee's situation, initially determine the target of layoffs, and draw up a layoff plan. Organize employees to comprehensively sort out the employees of this enterprise, and master the total number of employees, the nature of employment, the time of entry, the signing of labor contracts, the working years in this unit, the family economic situation, the work-related injuries, and the average monthly salary; Initially determine the target and number of layoffs, and give priority to the retention target and number; Conduct a comprehensive calculation of the possible economic costs of layoffs to ensure that funds are in place; Fully analyze and evaluate the negative impact that layoffs may have on production and operation and on society, and scientifically determine the time to start layoffs according to law.
Please pay special attention to the following matters:
(1) Persons who cannot be laid off:
(1) Employees who are engaged in operations exposed to occupational hazards and have not undergone occupational health examination before leaving their posts, or employees who are suspected of having occupational diseases during diagnosis or medical observation;
② Employees who suffer from occupational diseases or work-related injuries in this enterprise and are confirmed to have lost or partially lost their ability to work (hint: refer to the implementation measures of industrial injury insurance in Hebei Province);
(3) Employees who suffer from non-work-related illness or non-work-related injury within the prescribed medical treatment period (hint: refer to the provisions on the medical treatment period for enterprise employees suffering from illness or non-work-related injury);
(4) Female employees during pregnancy, childbirth and lactation;
(five) employees who have worked continuously in this enterprise for fifteen years and are less than five years away from the statutory retirement age;
6. Other circumstances stipulated by laws and administrative regulations.
(2) Personnel who must be given priority in retaining when laying off employees:
(1) Employees with certain technical expertise;
(two) employees who have entered into long-term fixed-term labor contracts with this enterprise;
(3) Employees who have signed an open-ended labor contract with this enterprise;
There are no other employees at home, and there are employees who need to be supported by the elderly or minors.
3. After starting the layoff procedure, first explain the situation to the trade union of the enterprise, listen to the opinions of the trade union on the layoff plan, revise and improve it, and formulate the layoff plan (draft for comments). When listening to the opinions of the enterprise trade union, it shall make minutes of the meeting and truthfully record the opinions of the trade union. If the opinions can be solved on the spot, the reply shall be explained or revised on the spot, signed by the participants and filed for future reference. If it cannot be solved on the spot, it should be carefully studied and a written reply should be given to the trade union.
If the enterprise has not established a trade union, it can directly enter the following step 4.
4. Hold a staff meeting to explain the situation to employees, listen to their opinions and formally determine the layoff plan.
Before the meeting, all employees should be informed of the date and place of the meeting. The date of the meeting shall be arranged 30 days before the official termination date of the labor contract, and employees who cannot be contacted directly shall be notified by effective means (such as registered mail, postal service, etc.). ).
When employees attending the meeting enter the site, the enterprise shall organize a written sign-in for future reference.
An enterprise shall explain the background of layoffs (generally including operations and assets) and the specific contents and operation steps of the layoff plan to employees at the meeting, and fully grasp employees' opinions and suggestions on the layoff plan by listening to employees' opinions at the meeting or collecting employees' written opinions after the meeting. The enterprise shall make meeting minutes for future reference.
After the meeting, the opinions and suggestions put forward by employees should be sorted out and analyzed, and the employees who put forward opinions and suggestions can be answered and explained through interviews, especially to ease the emotions of the employees who have objections. If the trade union or employees reflect that the laid-off workers meet the legal scope of not laying off employees, the enterprise shall re-verify. If the situation is true, they shall not lay off employees. If the situation is not true, they shall reply to the trade union or employees. If the trade union or employees reflect that the laid-off workers meet the statutory scope of priority retention, the enterprise shall re-verify, give priority to retaining employees if the situation is true, and reply to the trade union or employees if the situation is not true.
Enterprises should fully explain or reply to the opinions or suggestions put forward by employees one by one to ensure that employees have no obvious opposition before formally determining the layoff plan.
5. Before the formal implementation of the layoff plan, the enterprise shall report the preparation process of the layoff work and the final layoff plan to the labor and social security department in writing. The written report shall explain the reasons for the retrenchment of the enterprise, the basic situation of the retrenched personnel, whether the situation has been explained to the trade union or all employees, the opinions of the trade union or employees, the person in charge and the contact information, and attach the retrenchment plan and relevant certification materials. If the labor and social security department puts forward opinions or suggestions on layoffs, the enterprise shall seriously study them, solve them one by one according to law and make a written report until the labor and social security department finally approves them. Where the labor and social security department is directly involved in the coordination of layoffs, the enterprise shall actively cooperate.
6. The layoff plan can be formally implemented 30 days after the employee plenary meeting, and the above steps 4 and 5 can be completed.
(1) The enterprise shall issue a written certificate of dissolution or termination of the labor contract to the employees classified as layoffs. The written certificate shall specify the employee's post, the term of the labor contract, the date of dissolution or termination of the labor contract, the working years in the unit, etc.
(2) Pay all labor remuneration in full on the effective date of dissolution or termination of the labor contract. The enterprise shall, in accordance with the provisions of Hebei Province on wage payment, settle the labor contract on the date of dissolution or termination of the labor contract, and pay the laid-off workers full wages in one lump sum.
(III) On the day laid-off workers complete the handover, they shall pay the economic compensation for the dissolution or termination of the labor contract in full and in one lump sum according to law, and pay the statutory expenses such as disability allowance and pension for qualified personnel. See below for calculation standards and methods.
(4) Within 15 days from the date of dissolution or termination of the labor contract, handle the file transfer procedures for laid-off workers, and handle the social insurance benefits application procedures and transfer procedures according to law. See the treatment method below.
(5) Collect and summarize the laid-off workers' labor contract texts, wage payment ledgers (including vouchers that can prove that the workers have received the corresponding wages), labor contract receipt forms and other documents (pay special attention to retaining the contact information of laid-off workers), and file them for future reference, and keep them for at least two years.
(3) Give priority to the recruitment of laid-off workers. If an enterprise needs to re-employ personnel within six months from the date of layoffs, it shall take effective measures to inform the retrenched personnel through the contact information of the retrenched personnel retained by the enterprise, and give priority to the retrenched personnel under the same conditions.
Two. The term "stop production" as mentioned in the Guidelines refers to the situation in which an enterprise stops production for reasons other than workers.
(a) when the enterprise decides to stop production, it should first explain the situation to the employees. If an enterprise stops production for reasons other than workers, it shall explain the reasons, duration, tasks to be arranged during the period of suspension and the wage payment standards to be implemented to the employees by means of meetings, listen to the opinions of the employees, and make explanations and answers according to law. When the enterprise may or has stopped production, please report the situation to the local labor and social security department in time, make a good plan under the guidance of the labor and social security department, and report the abnormal situation of employees to the labor and social security department at any time to ensure the harmony and stability of the enterprise order and social order during the shutdown period.
(two) the wage payment standard during the short-term shutdown of the enterprise. If the suspension of production does not exceed one wage payment cycle (up to 30 days), it is a short-term suspension of production. Wages before production suspension shall be settled and paid normally according to law. In a wage payment period after the start of production suspension, the enterprise shall pay the wages of the employees who stop production according to the normal working hours.
(three) the wage payment standard during the long-term shutdown of the enterprise. Suspension of production for more than one wage payment cycle is a long-term suspension of production. Enterprises can also arrange employees to engage in some production tasks, but they are not saturated. According to the planned production tasks, we can negotiate with employees according to law, renegotiate the salary standard from the next day after 30 days of production suspension, and sign a written change agreement after reaching an agreement. During the actual performance, the enterprise shall settle accounts and pay wages according to the actual labor provided by the employees in accordance with the new agreement. If the enterprise has no production task arrangement and the employees don't need to engage in any labor, the enterprise shall pay the living expenses to the employees who stop production according to not less than 80% of the local minimum wage standard. The payment period of living expenses shall be from the day following the termination of production for one wage payment period to the date when the enterprise resumes or stops production, or until the date when the labor contract is dissolved or terminated. The "local minimum wage standard" can be inquired by the local labor and social security department.
(4) resume work and production. Enterprises should take active measures to resume work and production as soon as possible. After the resumption of work, the enterprise shall continue to perform the original labor contract, or make a new agreement with the employees according to law on the basis of equality, voluntariness and consensus in combination with the actual situation of production and operation after the resumption of work. If an agreement is reached, a written change agreement shall be signed.
(five) unable to resume work and terminate the labor contract. If an enterprise believes that it can't resume normal production and operation after efforts, it can implement layoffs (see above), bankruptcy or early dissolution according to law, and handle the employee placement procedures in accordance with the relevant contents of this guide.
Three. Enterprise Bankruptcy The term "bankruptcy" as mentioned in these Guidelines refers to the situation in which an enterprise terminates its main body due to bankruptcy, revocation of its business license, being ordered to close down, being revoked or being dissolved prematurely.
(1) If an enterprise goes bankrupt, it shall explain the situation to the employees. Enterprises should hold meetings and other ways to explain the reasons for closure, the calculation and payment standards and basis of the relevant expenses for resettling employees, listen to the opinions and suggestions of employees, and explain and reply one by one according to law, especially to persuade and explain the groups of employees with opposing emotions to avoid triggering mass incidents. Enterprises should actively raise funds in accordance with legal standards.
(2) The closure of an enterprise belongs to the termination of the labor contract as stipulated in Article 44 of the Labor Contract Law, and the labor contract may be terminated with the employees. Specifically, it is necessary to:
1. issue a certificate of termination of the labor contract. The enterprise shall issue a certificate of dissolution of the labor contract to each employee, indicating the term of the labor contract, the date of dissolution or termination of the labor contract, the post, the working years in the unit, etc.
2. Pay the legal expenses such as compensation and subsidies that employees should enjoy when they terminate the labor contract. The enterprise shall settle the labor contract on the date of termination and pay the employee's salary in one lump sum. Enterprises should also pay legal expenses such as economic compensation, disability allowance and pension for employees according to law. The income from the realization of enterprise assets should give priority to the above expenses.
3. Go through the formalities related to archives and social insurance. Within/0/5 days from the date of termination of the labor contract, handle the file transfer procedures for employees and apply for social insurance benefits according to law. See the treatment method below.
(3) the closure and bankruptcy of state-owned enterprises. If a state-owned enterprise closes down and goes bankrupt, it shall properly arrange its employees in accordance with the provisions of the state and the province on the closure and bankruptcy of state-owned enterprises.
Four. Matters needing attention in calculating and distributing economic compensation (1) Main calculation basis:
1. labor contract law;
2. Regulations for the implementation of the Labor Contract Law;
3. Provisions on the Administration of Labor Contracts in Hebei Province (Decree No.8 of the People's Government of Hebei Province).
(two) the calculation and payment method of economic compensation for employees who have signed a fixed-term labor contract and terminated after the expiration of the contract. If an employee who does not meet the conditions stipulated in Article 14 of the Labor Contract Law for signing an open-ended labor contract terminates the labor contract because the enterprise is unwilling to maintain or improve the agreed conditions of the original labor contract at the expiration of the labor contract, except for the original permanent workers (including cadres) who joined the work before 1986 (including today), the economic compensation period shall be from 2008.
(3) paying economic compensation. Economic compensation: the economic compensation of 1 month salary is paid every 1 year according to the employee's working years in this unit. If it is less than 1 year for more than 6 months, it shall be calculated as 1 year; Less than 6 months, calculated by half a year. After the economic compensation is approved, it should be publicized in the enterprise. After the employee has no objection, he can terminate the labor relationship with the employee, and go through the relevant payment procedures such as economic compensation after reporting to the relevant departments for approval according to the management authority. The specific policies are as follows:
1, the on-the-job working years of employees are the unit working years minus the full-time working years. Full-time working years refer to the time when I don't work in this enterprise or stop paying wages for my own reasons.
2. Employees who are assigned to work in this unit from the original unit for reasons other than their own, the working years in the original unit shall be counted as the working years of this unit. In the original unit has received economic compensation, not included in the work experience of this unit.
3. Period of economic compensation for employees: calculated according to the time from the establishment of labor relations between enterprises and employees to the date of termination of labor contracts.
4. Monthly salary standard: calculated according to the average monthly salary of the employee before the termination of the labor contract1February. If the employee is dissatisfied with 12 months, the average salary shall be calculated according to the actual working months. If the average monthly wage of employees is lower than the minimum wage standard in Shijiazhuang, it shall be calculated according to the minimum wage standard.
Verb (abbreviation of verb) After going through the formalities of applying for social insurance benefits, enterprises should properly solve the problems of pension, medical care, unemployment insurance and so on after employees dissolve or terminate their labor contracts. The pension and unemployment insurance procedures shall be handled according to the following procedures:
(A) on the continuation of old-age insurance
1. After the employee terminates the labor relationship with the enterprise, if the enterprise interrupts its social security relationship and meets the unemployment conditions and goes through the unemployment formalities, the personnel file will be transferred to the public employment service agency where the household registration is located, and the employee can renew the old-age insurance through the public employment agency and continue to pay according to the flexible employment personnel payment policy.
2, workers and enterprises after the termination of labor relations, did not apply for unemployment and re-employment procedures to other units of workers, their personnel files transferred to the new employment unit or its entrusted file storage unit, by the new employment unit for renewal; Those who are not employed by the unit shall be managed by the talent agency where the registered permanent residence is located in accordance with the relevant provisions in the Notice of Hebei Provincial Department of Human Resources and Social Security on Further Improving the Basic Public Service of Personnel Files of Floating Personnel (Ji Ren She Zi [2065 438+07] 16 1No.). Employees can renew their old-age insurance through talent agencies and continue to pay according to the flexible employment policy.
3. If the domicile or new work place is not within the administrative area of Shijiazhuang City, after the renewal of the domicile or new work place, the formalities for the transfer of the old-age insurance relationship shall be handled in accordance with the relevant provisions of the state and province, and the payment period (including deemed payment period) shall be calculated in accordance with the provisions of the state.
(2) Relevant benefits of unemployment insurance
1. For the employees who receive economic compensation due to the termination of labor relations and meet the conditions of enjoying unemployment insurance benefits, the unit will declare the reduction or exemption of the insured employees in the online newspaper after the termination of labor relations with the employees, and report the list of people receiving unemployment insurance benefits to the unemployment insurance agency by e-mail, and inform the unemployed to apply for unemployment insurance benefits in time.
2. Unemployed workers shall enjoy the unemployment insurance benefits standard according to the relevant provisions of Hebei Province, and shall be determined according to the years when their work units and I paid unemployment insurance premiums before unemployment.
3. During the period of receiving unemployment insurance benefits, the file relationship of the unemployed will be transferred to the public employment service agency for free storage. Those who have not been employed after receiving unemployment insurance benefits expire, their personnel files are still kept in public employment service institutions free of charge. Re-employment, the file relationship is transferred to a new work unit or entrusted institution.
Intransitive verbs safeguard the legitimate rights and interests of employees (1) Employee complaints
1. complaint channel. Employees who violate labor security laws and regulations and infringe upon their legitimate rights and interests in the process of layoffs, production suspension and closure of enterprises may complain through the following channels:
(1) directly complain to the local labor and social security department;
(2) Call the complaint consultation telephone number 12333 and the complaint reporting telephone number published by the local labor and social security department;
(3) mail a letter of complaint to the local community department;
(4) where there are online complaints, complaints can be reported through e-mail and portal websites of human and social departments.
If an employee causes a collective complaint for the same reason, the complainant may recommend a representative to make the complaint.
2. Submit. When employees complain that enterprises violate labor security laws and infringe upon their legitimate rights and interests, they shall submit the following materials:
(1) A complaint registration form filled in as required. The contents of the complaint registration form include: the complainant's name, gender, age, occupation, work unit, designated service address, contact address and telephone number; The name and address of the complained enterprise, and the name, position and contact information of the legal representative or principal responsible person; The establishment of labor relations; Whether the complaint has been applied for labor arbitration and filed a lawsuit; Matters such as the fact that the legitimate rights and interests of labor security have been violated and the complaint request. The complaint registration form shall be signed by the complainant himself.
(2) A copy of the complainant's identity certificate (the original should be provided for verification).
(3) Proof of labor relations and factual evidence related to the complaint request.
If it is a collective complaint by the recommendation representative, it is also necessary to submit the recommendation entrustment document signed by the recommender and the relevant complaint materials. If it is really difficult for the complainant to write a complaint document, the staff accepting the complaint shall make a record and sign it by the complainant.
3. Accept complaints. For complaints that do not belong to labor security supervision matters, the labor security department will promptly put forward opinions that will not be accepted, and inform the complainant to handle them by other means such as labor dispute handling or litigation procedures; Cases that should be accepted shall be handled quickly in accordance with the labor security supervision procedures according to law from the date of acceptance.
4. Handling of illegal acts. For employees' complaints, if it is verified that the enterprise has illegal behaviors such as wage arrears, illegal dissolution or termination of labor contracts without paying economic compensation according to law, the labor security department will order them to pay within a time limit according to the Labor Contract Law and other laws and regulations, and if they fail to pay within the time limit, they will be ordered to pay additional compensation:
(1) If the enterprise fails to pay the employee's salary in full and on time, the labor and social security department shall order it to pay within a time limit; If it fails to pay within the time limit, the enterprise shall be ordered to pay extra compensation to the employees according to the standard of more than 50% and less than 000% of the payable amount;
(2) If an enterprise dissolves or terminates a labor contract in violation of the law, it shall pay compensation to the employee twice as much as the economic compensation standard stipulated in Article 47 of the Labor Contract Law;
(three) in violation of regulations, the labor security department shall order the enterprise to make corrections if it fails to issue a written certificate of dissolution or termination of the labor contract to the employees.
(2) Handling of labor disputes 1. The Law of People's Republic of China (PRC) on Mediation and Arbitration of Labor Disputes is applicable to the following labor disputes between employers and workers in People's Republic of China (PRC):
(1) Disputes arising from the confirmation of labor relations;
(2) Disputes arising from the conclusion, performance, alteration, dissolution and termination of labor contracts;
(3) Disputes arising from delisting, dismissal, resignation or resignation;
(4) Disputes arising from working hours, rest and vacation, social insurance, welfare, training and labor protection;
(five) disputes arising from labor remuneration, medical expenses for work-related injuries, economic compensation or compensation;
(six) other labor disputes as prescribed by laws and regulations.
2. The limitation period for applying for labor dispute arbitration is one year. The limitation period for arbitration shall be counted from the date when the parties know or should know that their rights have been infringed.
3. The applicant shall submit an application for arbitration and submit copies according to the number of respondents. The arbitration application shall specify the following items: the name, sex, age, occupation, work unit and domicile of the laborer, the name and domicile of the employer, and the name and position of the legal representative or principal responsible person; The arbitration claim and the facts and reasons on which it is based; Evidence and sources of evidence, names and residences of witnesses. If it is difficult to write an arbitration application, you can apply orally, which will be recorded by the labor dispute arbitration commission and informed to the other party.
4. If one party is more than ten employees, and a dispute arises due to the same request, the employees may nominate three to five representatives to participate in the arbitration activities. The representative's participation in arbitration is valid for the party he represents, but the representative's change, waiver or recognition of the other party's arbitration request and settlement must be approved by the represented party.
5. The parties may entrust agents to participate in arbitration activities. To entrust others to participate in arbitration activities, a power of attorney signed or sealed by the client shall be submitted to the labor dispute arbitration commission, and the power of attorney shall specify the entrusted matters and authority.
6. Entrusted agent. Employees may entrust lawyers, close relatives, workers, young people, women and other social organizations or people recommended by their units, as well as other citizens approved by the labor dispute arbitration commission for justified reasons as agents.
(1) Agency scope. If an employee entrusts a close relative to act as an agent, he shall provide a certificate of relatives issued by the public security organ or a certificate of relatives issued by a notary office where the party's household registration is located. If an employee entrusts a relevant social organization or unit to recommend him as an agent, he shall provide a certificate issued by the social organization or unit. If an employee entrusts a lawyer to represent him, the agent shall submit a power of attorney issued by a law firm, and the arbitration staff shall examine the lawyer's practice certificate. When a lawyer represents a case of a party above/KLOC-0, it shall be reported to the local judicial bureau and the Bar Association for the record in accordance with the provisions of the Notice on Reiterating that lawyers must abide by relevant regulations and disciplines when representing major sensitive cases.
Other citizens with justifiable reasons approved by the labor dispute arbitration commission mainly refer to: first, citizens who have obtained legal professional qualification certificates or lawyer qualification certificates; Second, citizens who have obtained the qualification of enterprise legal adviser; Third, citizens engaged in legal research and education; Fourth, citizens engaged in labor and social security departments, trade union organizations and enterprise associations; Fifth, other legal workers as stipulated by laws and regulations. (2) written authorization. If an employee entrusts an agent to participate in arbitration activities, he shall fill in the power of attorney in accordance with the regulations, and the labor dispute arbitration commission shall examine the qualification of the agent.
(3) Payment. Citizens' agents shall not collect remuneration from the parties when they participate in labor arbitration activities. The parties and agents shall sign a free agreement and provide it to the labor dispute arbitration commission. If no free agreement or false certification materials are provided to the labor dispute arbitration commission, the labor dispute arbitration commission has the right to cancel its agency qualification.
(4) Legal aid. Laborers with financial difficulties may apply to the judicial administrative department for legal aid (for specific application procedures, please consult the telephone number and address of the judicial administrative department at 1 14).