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.
The analysis of the special training service period stipulated in this article is a new legislative content, and its basic content is the same as the Opinions on Several Issues Concerning the Implementation of the Labor Law of People's Republic of China (PRC), the Provisions on the Training of Enterprise Employees, the document issued by the Ministry of Labor [1995] No.223, which violates Article 4 of the Labor Law, and the Reply of the General Office of the Ministry of Labor on the Basis of Dissolving Labor Contracts during the Probation Period.
It should be noted that the service period is agreed only when the special training funds are used for the professional training of workers, and the amount of liquidated damages shall not exceed the training expenses provided by the employer (not exceeding the training expenses that should be shared for the unfinished part). In a word, this is actually equivalent to free training and interest-free loans for employers. Personally, I think the training fee should include the interest loss of similar loans in the same period. Another limitation is that the training itself must have actual monetary expenditure. This is very clear. If you are taking an apprentice or working with you to let him master some skills, this is not allowed. This was not allowed in the past, and neither is the new law.
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 article analyzes the issues of confidentiality and non-competition stipulated in this article, and China's Company Law has clearly stipulated the prohibition of non-competition during the term of office (Article 149 of the Company Law stipulates: "Directors and senior managers shall not commit the following acts: (5) Without the consent of the shareholders' meeting or the shareholders' general meeting, take advantage of their positions to seek business opportunities belonging to the company for themselves or others, and engage in business similar to the company they work for; (six) accept the entrustment of others and regard the transaction with the company as your own; (seven) unauthorized disclosure of company secrets; (8) Other acts that violate the obligation of loyalty to the company. The income of directors and senior managers who violate the provisions of the preceding paragraph belongs to the company. " The company law mainly aims at the non-competition clauses of senior executives, but it is still restricted by labor laws and regulations for ordinary workers. Article 22 of the Labor Law stipulates: "The parties to a labor contract may agree in the labor contract to keep the business secrets of the employer." 1On July 2, 1997, the State Science and Technology Commission's Opinions on Strengthening the Management of Technical Secrets in the Flow of Scientific and Technological Personnel stipulated: "Enterprises and institutions may sign technical confidentiality agreements with their scientific and technological personnel, administrative personnel, personnel who may know technical secrets in their business or personnel related to their business in accordance with the provisions of relevant laws and regulations. The confidentiality agreement can be used as a contract with the labor employment contract, or as a contract that stipulates the ownership of intellectual property rights, or as a separate contract. " The Ministry of Labor 1996 "Notice on Several Issues Concerning the Mobility of Employees in Enterprises" stipulates: "The employing unit may stipulate that employees who have business information and business secrets shall not be employed by other employing units that produce similar products or operate similar businesses with the original unit within a certain period of time (no more than three years) after the termination or dissolution of the labor contract, nor shall they produce similar products or operate similar businesses by themselves, but the employing unit shall give the employee a certain amount of economic compensation. At the same time, the General Principles of the Civil Law and the Anti-Unfair Competition Law also stipulate the relevant contents of non-competition.
On this basis, the compensation standard, starting time and form of non-competition are further stipulated. The form of compensation is that both parties make monthly compensation after the termination of the labor contract, but it is not clear whether it is feasible to make one-time compensation or give economic compensation to the workers during the duration of the labor contract. Unfortunately, there is no compensation standard for non-competition, and some local laws and regulations do. For example, Jiangsu has a standard of not less than one-third of wages, and Chongqing's labor contract regulations do not stipulate it.
Twenty-fourth persons with non-competition restrictions are limited to the senior managers, senior technicians and other personnel with confidentiality obligations of the employing unit. The scope, area and time limit of non-competition shall be agreed by the employer and the employee, and the agreement on non-competition shall not violate the provisions of laws and regulations.
After the dissolution or termination of the labor contract, if the personnel specified in the preceding paragraph go to other employers that have a competitive relationship with their own units to produce or operate similar products or engage in similar businesses, or start their own businesses to produce or operate similar products or engage in similar businesses, the non-competition period shall not exceed two years.
This paper analyzes the issues of confidentiality and non-competition stipulated in this article, and determines the scope of application and the term of non-competition clause.
1996 65438+1October 3 1 Notice of the Ministry of Labor on Several Issues Concerning the Mobility of Employees in Enterprises stipulates: "If the employer and the employees who know the business secrets of the enterprise agree on keeping business secrets in the labor contract, they may agree to adjust their posts before the labor contract is terminated or within a certain period (not more than 6 months) after the employee proposes to terminate the labor contract. The employing unit may also stipulate that the laborer who knows the business secrets shall not be employed by other employing units that produce similar products or engage in similar businesses in a competitive relationship within a certain period of time (not exceeding three years) after the termination or dissolution of the labor contract, nor shall they produce similar products or engage in similar businesses with the original units themselves, but the employing unit shall give certain economic compensation to the laborers. "
The time limit is clearly not more than two years.
Article 25 Except under the circumstances stipulated in Articles 22 and 23 of this Law, the employing unit shall not agree with the laborer that the laborer shall bear the liquidated damages.
It is very important to analyze the provisions of liquidated damages in labor contracts in this paper. The liquidated damages agreed between the employer and the employee are strictly limited to two situations, namely, the violation of the training service period and the confidentiality non-competition agreement. This means that in other cases of breach of contract, the employer may not agree with the employee on liquidated damages, or agree that the employee shall bear the liability for breach of contract in other names such as compensation, liquidated damages and liability for breach of contract. In the case of actual losses, we still advocate actual compensation, which effectively overcomes the current situation that the employer has mastered the "overlord clause" formulated in the contract model.
The Labor Contract Law does not prohibit the agreement that the employer shall bear the liquidated damages to the workers.
More detailed information can provide more accurate legal advice.