Can Your Rules And Regulations Resist Legal Risks Of Employment?

Without rule or Cheng Fangyuan, an important prerequisite for the successful operation of a company is to establish a set of modern company rules and regulations. Company rules and regulations is an important guarantee for maintaining the normal operation and rapid development of the company, and is also an institutional guarantee for ensuring the company's sustainable development and its corporate culture. Legal, standard and strict company rules and regulations can strongly support the development of the company and effectively prevent the legal risks of labor employment. But at the same time, rules and regulations are double-edged, illegal. Standard Strict rules and regulations will be an obstacle to company management. How can we make the rules and regulations of the company a booster instead of an obstacle? Combined with years of experience in arbitration proceedings, the author will analyze related issues.

I. overview and functions of company rules and regulations

(1) overview

Rules and regulations, namely the rules and regulations of employing units, refer to the formulation and promulgation by the employing units according to law. Management And in the process of human resource management, the code of conduct used to regulate employers and workers. In reality, a large number of rules and regulations do not conform to the above definition, and usually appear in the form of labor discipline such as the workers must abide by. As a "killer" of the employers to manage or even arbitrarily punish employees, it will spanform into a tool for employers to infringe on the legitimate rights and interests of workers. This will greatly weaken the proper role of the regulations. As a visionary and growing company, we should have a deeper understanding and application of rules and regulations.

(two) functions of rules and regulations

1, the rules and regulations formulated in accordance with the law can ensure the lawful and orderly operation of the company and reduce the operation and operation of the company. cost ;

2, rules and regulations can prevent arbitrariness of management, protect the legitimate rights and interests of workers, and obey rules and regulations more easily than employees who obey the command of arbitrariness. Formulating and implementing reasonable rules and regulations can meet the needs of employees' sense of fairness.

3, excellent rules and regulations through reasonable set of rights and obligations, so that employees can predict the consequences of their actions and efforts, and motivate employees to strive for the company's goals and missions, and promote the company's vigorous development.

Two. Common legal risks in company rules and regulations

While the new labor contract law endows the company with the right to formulate rules and regulations, in order to prevent the abuse of company rights, it also stipulates the legal requirements for the formulation of company rules and regulations. The requirements of the law for the formulation of company rules and regulations include two aspects, one is the content of the entity, and the other is the procedural aspect. Two. Some of the rules and regulations of the company seem to be very detailed and rigorous, but they contradict the law in content and procedure.

1, make the main body ill suited.

In order to ensure the unity and authority of the labor rules and regulations established within the scope of the unit, the main body of the labor regulations should be the administrative organ at the highest level of the employer's administrative system, which has the right to carry out a comprehensive and unified management of all parts of the unit and all the staff members, and shall be formulated and implemented by the employer on behalf of the employing units and promulgated in the name of the employer. Other management organizations of the employing units do not have the qualification of making the labor rules and regulations, and can only participate in the formulation of labor rules and regulations. For example, the rules and regulations issued by a certain department of a company and issued in the name of the Department are at risk of legal effect.

2, the content is illegitimate and unreasonable.

The labor law, the new labor contract law, and the interpretation of the Supreme People's Court on Several Issues concerning the application of laws in labor dispute cases clearly stipulate that the rules and regulations formulated by the company must not violate national laws, administrative regulations and policies. The term "legality" refers to all laws, regulations and rules, including: constitution, laws, administrative regulations, local laws and regulations, autonomous regulations and separate regulations formulated by the autonomous areas, as well as administrative regulations on labor. In practice, the internal rules and regulations formulated by some units have different levels of illegal contents, some of which violate the basic standards stipulated by the state in terms of working hours, holidays, overtime and so on. Some stipulate that employees can not marry and have children during the labor contract, they must search and check on work and work, seriously infringe on the basic rights of citizens; others stipulate that employees should pay a margin for their entry; some will lengthen their working hours without sending overtime wages, and so on. These rules and regulations are invalid.

Company rules and regulations should be reasonable besides legality. Some laws do not specify the contents in detail, which require the employing units to specify and stipulate them in rules and regulations. As stipulated in the thirty-ninth article of the new labor contract law, the laborer violates the rules and regulations of the employing units or seriously misconducts his duties, malpractices, and causes serious damage to the employing units. The employer can rescind the labor contract without paying the economic compensation. But what is meant by "serious violation", "serious dereliction of duty" and "serious injury", the law does not make specific provisions. The company should reasonably determine whether the employee's behavior is serious or not according to the specific circumstances of the industry, employee's post and duties and so on, so as to grasp the "degree" of employees' violation and loss. Generally speaking, the company's rules and regulations should not violate normal normal judgment standards, and should be recognized by most people. If this rule is accepted by most of the employees of a company, it is reasonable. If most people think it is unreasonable, there is a problem in this regulation, and it will lose its "rationality".

3, conflict with labor contracts and collective contracts.

The interpretation of the Supreme People's Court on Several Issues concerning the application of law in labor dispute cases (two) provides that the internal rules and regulations formulated by the employing units are inconsistent with the contents stipulated in collective contracts or labor contracts, and the people's court shall support the workers' request for priority application of the contract agreement. The sixteenth part of the Supreme People's court's provisions on the application of the law to the labor dispute cases is inconsistent. The interpretation of the Supreme People's court resolved the legal priority of collective contracts, labor contracts and company rules and regulations. In practice, the company always unilaterally formulating rules and regulations, unilaterally changing the setting of labor contracts, so as to increase workers' obligations. Since the effectiveness of the labor contract is higher than the rules and regulations, even if the rules and regulations are passed by the employees' Congress, if it conflicts with or does not conform to the labor contract, it will be invalid unless the worker agrees.

4, violation of public order and good customs

Public order and good customs are a basic principle of the civil law and permeate all laws. The new labor contract law also runs through the basic principles of "public order and good customs". If the employer's rules and regulations are contrary to public order and good morals, the staff and workers may claim that the rules and regulations are invalid to the labor administrative department.

5. Procedural illegality

The fourth article of the new labor contract law stipulates that, when the employer is making, revising or deciding on the rules and regulations or important matters that directly relate to the vital interests of the workers, it should be discussed by the staff congress or all the staff and workers, and the plans and opinions should be put forward, and the equal consultation with the trade union or the staff and workers shall be determined by equal consultation. In the process of deciding on the implementation of rules and regulations and major matters, the trade union or the staff and workers consider it inappropriate, they shall have the right to propose to the employer and make amendments and improvements through consultation. The employing units shall publicized the rules and regulations and major matters directly related to the vital interests of the workers, or notify the laborers. The clause is greater than the fourth provision of the labor law. The greatest development is to strengthen the procedural provisions of the law for the formulation, revision or determination of labor regulations. In the process of formulating rules and regulations, the company must strictly fulfill the procedural requirements stipulated in the new labor contract law. It is legally binding only if the rules and regulations are formulated through equal consultation, publicity or notification to the workers. Otherwise, the company rules and regulations will be invalid due to the lack of procedures.

Three. Prevention of legal risks in company rules and regulations

How can we effectively resist the above possible legal risks? The author suggests that we should start with the following aspects:

1, set up workers' Congress, improve trade union organizations, and play the role of trade union bridge and supervision.

The new labor contract law endows the workers' congresses and trade unions of the company to help and guide workers and employers to conclude and perform labor contracts in accordance with the law, establish collective bargaining mechanism with employers, safeguard the legitimate rights and interests of workers, directly determine the right to determine the rules and regulations of workers' personal interests, and make suggestions for revision in the implementation of labor rules and regulations. Therefore, the company needs to establish and improve the workers' Congress and trade union organizations. When formulating rules and regulations, it is necessary to fully consult with the workers' Congress or trade unions to discuss and determine the contents directly related to the immediate interests of the laborers. When implementing, we should respect the personal staff or Representatives' and trade union remedial proposals, improve the relevant contents of the rules and regulations, and give full play to the bridge and supervisory role of the trade unions.

2, formulate according to law, ensure lawful and effective.

In formulating rules and regulations, the company must make the main body suitable, content legitimate, reasonable and perfect in procedure, and must not violate public order and good customs, and should not conflict with labor contracts and collective contracts. When formulating and modifying rules and regulations, the company shall operate according to the law and retain relevant evidence.

The enacting procedures stipulated in the labor contract law are: Discussion of workers' Congress or all staff members, proposals and ideas.

The way of publicity or notification can be:

(1) issue Employee Handbook (with employee confirmation).

(2) internal training (attention must include: training time, place, participants, training content, attendance of participants);

(3) labor contract agreement law;

(4) examination method (open or closed);

(5) circulation method;

(6) declaration form of entry registration form;

(7) opinion consultation;

Avoid the following publicity methods as far as possible:

(1) website announcement (difficulty in presenting evidence);

(2) e-mail notification (difficulty in presenting evidence);

(3) bulletin boards and posting columns.

In addition, when making rules and regulations, the company should also pay attention not to violate the mandatory provisions of the law, to stipulate the matters that should be agreed in the contract, and to void the legal obligations and exclude workers' rights.

4. clarify the scope of effectiveness of rules and regulations.

When formulating rules and regulations, the scope of validity should be clearly defined, namely, which people are effective, which occasions are effective, what matters are applicable, when to take effect, and whether there is retrospective effect.

3, strict implementation, Maiaki Ji enterprise.

The company's rules and regulations are the "constitution" of the company. Only by achieving "everyone is equal before the law" can we manage effectively according to the perfect rules and regulations. If the company is not fair in implementing the rules and regulations, the standards are not uniform, and there are very obvious human factors in the implementation process, which will inevitably cause employees' aversion to the rules and regulations, which is extremely harmful to the implementation of rules and regulations, and can not give full play to the positive role of rules and regulations.

4, clean up the existing rules and regulations, timely modify and rebuild the contents inconsistent with the new labor contract law, and improve the legal procedures.

Rules and regulations should be amended and supplemented in a timely manner. First, the company should always pay attention to the revision of the existing laws and the introduction of the new laws, and modify the illegal contents; two, the company should respect the proposed amendment rights of the trade unions or workers in the implementation process of rules and regulations, and negotiate and modify the corresponding contents; and the three is that the company should modify and supplement the inappropriate contents according to the changes in its own development and internal and external environment; four, it is to develop employee manuals, publicized the existing rules and regulations; five, it is to revise the existing rules and regulations in accordance with the law, and adopt appropriate ways to publicized or inform the workers, and improve the legal procedures.

5, enhance the company's cultural connotation, and build a harmonious and stable labor relationship.

The perfect rules and regulations reflect the unity of duty, power and responsibility, and fully mobilize the enthusiasm of the company departments and personnel. Through the benign implementation of the company's rules and regulations, the goal and behavior of the company and staff development should be unified, the spirit of the company should be embodied on the workers, a complete corporate culture should be formed, and a harmonious and stable labor relationship should be built.

Rules and regulations, as the internal "law" of the employing units, run through the entire employment process of the employing units, which is an important basis for the employing units to exercise their managerial power and the right to rescind the contract. If a worker seriously violates the rules and regulations of the employing units, the employer can rescind the labor contract, without rules and regulations, and the management of the company will be in a predicament. At the same time, the labor contract law stipulates that the rules and regulations of the employing units violate the provisions of laws and regulations, and harm the rights and interests of workers. Workers can rescind the contract and employers need to pay economic compensation. Therefore, the company must formulate or revise the company's rules and regulations in the framework of the labor contract law. Only in this way can we resist the legal risks that may arise in the process of employment, safeguard the interests of the company, and promote the healthy development of the company.