The following are the provisions of Articles 22 and 23 of the new Labor Contract Law.
Article 22 Where an employing unit provides special training fees and professional technical training for laborers, 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 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 23 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.
The reason why the new "Labor Contract Law" has "the employer shall not agree with the employee that the employee shall bear the liquidated damages." The purpose of this regulation is to prevent the company from abusing the liquidated damages clause, agree on high liquidated damages in advance, and limit the flow of employees. After the implementation of the new law, employees can leave their jobs voluntarily and do not have to bear the liability for liquidated damages. Even if the company stipulates its own liquidated damages, the court will not support it in the future.
However, the new law also makes two exceptions to this: first, after the company pays the training fee and agrees on the service period, if the employee voluntarily leaves the company within the agreed service period, he shall pay liquidated damages; Second, when violating the responsibility of non-competition, employees should also bear the responsibility of liquidated damages.
The training here is not ordinary and necessary training, but specialized technical training. The amount of liquidated damages arising from training shall not exceed the actual training expenses of the company. In addition, the company requires employees to pay liquidated damages not exceeding the training expenses that should be shared for the unfulfilled part of the service period.
With regard to training expenses, ordinary and necessary vocational training and special technical training should not be confused, and the amount of liquidated damages should be agreed according to the actual cost of special technical training for employees.