In December 2019, some medical institutions in Wuhan successively appeared patients with pneumonia of unknown cause, which were later diagnosed with the new coronavirus (hereinafter referred to as the new coronavirus) and broke out on a large scale. In order to effectively control the spread of the new crown virus, the national level began to extend the Spring Festival holiday, and various localities issued corresponding documents to delay the resumption of work according to the specific situation of the epidemic, which in the case of Jiangsu Province was postponed to February 9, 2020, that is, February 9, 2020 24 Enterprises are not allowed to resume production before. Although it is now time to resume work, local governments have taken corresponding control measures in response to the spread of the epidemic. During this period, we will discuss how wages are paid, whether companies can lower their wage standards, and the ways to terminate their labor contracts, and the legal liabilities during this period.

1. How to pay wages after February 9, 2020?

On February 7, 2020, the Ministry of Human Resources and Social Security, the All-China Federation of Trade Unions, the China Enterprise Confederation/China Entrepreneurs Association, and the All-China Federation of Industry and Commerce jointly issued the "Opinions on Stabilizing Labor Relations and Supporting Enterprises to Resume Work and Production during the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic". On the 12th of the same month, the Department of Human Resources and Social Security of Jiangsu Province made corresponding answers on the protection of employees' wage rights and interests during the epidemic prevention and control period. On the 2nd of the same month, the Nanjing Municipal Bureau of Human Resources and Social Security also issued Several Measures to Support the Development of Service Enterprises during the Period of Epidemic Prevention and Control. The above documents and the Regulations of Jiangsu Province on Wage Payment have corresponding provisions on wage payment.

1Priority is given to holiday pay such as paid vacations

After February 9, for employees who are unable to provide labor due to the impact of the epidemic and government control measures, the standard of wage payment is that the company can negotiate with employees to give priority to the use of various vacation wages such as paid annual leave. Article 29 of the Regulations on the Payment of Wages in Jiangsu Province stipulates that during the vacation period enjoyed by the employee according to law, the company shall pay wages in accordance with the wage standard agreed in the labor contract.

In addition, if the employee is unwilling to negotiate, or does not respond positively to the leave opinions provided by the employer, then according to Article 5 of the Regulations on Paid Annual Leave for Employees, the unit shall make overall arrangements for the annual leave of the employee according to the specific conditions of production and work, and taking into account the wishes of the employee himself. That is, the enterprise and the employee cannot agree on the annual leave arrangement, and the enterprise only considers the wishes of the employee himself, and does not have to reach a consensus with the employee, so during the epidemic, the enterprise can give priority to the annual leave of the employee. Note that enterprises should retain evidence that they have prioritized the use of annual leave.

2Normal payment within one salary payment cycle, and payment of living expenses in excess

For employees who are unable to provide normal work after using all kinds of leave, or who cannot provide normal work, the wage payment standard shall be implemented in accordance with the relevant regulations on wage payment during the suspension of work and production. Article 31 of the Regulations on the Payment of Wages in Jiangsu Province stipulates that during the period of suspension of work and production, a company shall pay wages in accordance with the standard agreed in the labor contract during one wage payment cycle. One of the salary payment cycles is generally 30 days, but there is currently no relevant regulation regarding the starting time, and since the payment of wages from February 3 to 9, 2020 is still based on the regulations on wage payment during the suspension of work and production, I think it should be from 2020 2 Counting starts on the 3rd of the month. The living cost standard is specific to Nanjing, which is not less than 80% of the current minimum wage standard, and the monthly minimum wage standard in Nanjing in 2019 is 2020 yuan / month, that is, the living cost standard should be 1616 yuan / month/ Month. In addition, according to Article 32 of the Wage Regulations of Jiangsu Province, during the period of payment of living expenses, the company must also bear the social insurance premiums and housing provident fund that should be paid by the individual employee.

3Where normal labor is provided, wages shall be paid in accordance with law.

Although many employees are now unable to work in the company due to the impact of the epidemic, due to the current flexible and diverse working methods, if the company requires employees to work remotely from home and employees also provide normal labor, they should pay wages according to law.

2. Can the company reduce the wage standard?

At present, affected by the epidemic, many companies may not be able to work even if they resume work and production. During this period, the company can not operate normally and make profits, and also has to bear a certain amount of cost pressure such as employee salaries and credits, which undoubtedly increase the difficulty of the company's operation, so that the company falls into a certain predicament.

In the above-mentioned documents, for the sake of stabilizing labor relations and reducing the company's cost pressure, the company can reduce the wage payment standard, but it should strictly follow the legal procedures, and the company can not unilaterally decide and implement it. Article 4 of the Labor Contract Law of the People's Republic of China (hereinafter referred to as the "Labor Contract Law") stipulates that when a company revises, formulates, amends or decides on relevant systems related to the vital interests of employees, it shall perform democratic procedures, that is, consult with the trade union or the employee representative assembly, listen to opinions, and publicize or inform employees of the corresponding rules and regulations or major matters.

The adjustment of wages is undoubtedly directly related to the vital interests of employees, so the company should discuss the adjustment of wages through the employee representative assembly or all employees, put forward plans and opinions, and negotiate with the labor union or employee representatives on an equal footing. In addition, the adjustment of wages is also a change to the original employment contract. According to Article 35 of the Labor Contract Law, the employer and the employee may change the content of the labor contract through consensus. That is, the company should also consult with the individual employee and need to obtain the consent of the employee.

In addition, during the epidemic, companies can also reduce personnel costs through flexible working methods such as job rotation, centralized work and centralized rest, and shortened working hours.

3. The company's ways to terminate the labor contract and legal liabilities

Under China's current labor laws and regulations, the reasons for terminating labor contracts are statutory, which is different from civil and commercial contracts, namely: negotiated termination (Article 36 of the Labour Contract Law), fault termination (Article 39 of the Labour Contract Law), negligent termination (Article 40 of the Labour Contract Law), and layoffs (Article 41 of the Labour Contract Law). In other words, a company must have a statutory reason for terminating a labor contract, that is, it must comply with the relevant provisions on termination of labor contracts in the Labor Contract Law.

In addition, according to the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations During the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic dated January 24, 2020, Article 1 stipulates that for employees of enterprises that cannot provide normal labor due to the government's implementation of isolation measures or other emergency measures, the enterprise shall pay the employees remuneration for their work during this period, and shall not rely on Article 40 of the Labor Contract Law Article 41: Termination of labor contracts with employees.

However, the company can still terminate in accordance with Articles 36 and 39 of the Employment Contract Law. If the company terminates the labor contract on the basis of other than this law, that is, it is suspected of illegal termination, it shall bear the corresponding legal responsibility.

1, Negotiated termination

Article 36 of the Labor Contract Law stipulates that the company and the employee may terminate the labor contract after reaching a consensus. Under this circumstance, according to Article 46 of the Labor Contract Law, if the company proposes to terminate through negotiation, it shall pay economic compensation.

Article 47 of the Labour Contract Law stipulates that "compensation shall be paid to the employee according to the standard of one month's salary for each full year of service of the employee." If the six months are more than one year and less than one year, it shall be counted as one year; For less than six months, the employee shall be paid half a month's salary of economic compensation. If the monthly wage of an employee is higher than three times the average monthly wage of the employee in the previous year announced by the people's government of the municipality directly under the Central Government or the districted city level where the employer is located, the standard of economic compensation paid to the employee shall be three times the average monthly wage of the employee, and the maximum number of years for which economic compensation shall be paid shall not exceed 12 years. The monthly wage referred to in this article refers to the average wage of the employee in the 12 months before the termination or termination of the labor contract. ”

2, fault discharge

Article 39 of the Labor Contract Law stipulates that "the employer may terminate the labor contract if the employee has any of the following circumstances: (1) it is proved that the employee does not meet the employment requirements during the probationary period; (2) Seriously violating the rules and regulations of the employer; (3) Serious dereliction of duty, malpractice for private gain, causing major damage to the employer; (4) The employee establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the request of the employer; (5) The labor contract is invalid due to the circumstances provided for in Item 1, Paragraph 1, Article 26 of this Law; (6) Those who are investigated for criminal responsibility in accordance with law. In addition, if the company terminates the company based on this reason, it is not required to pay economic compensation due to the employee's own fault.

During the epidemic, many employees have not been able to arrive at work in time, and the company is less likely to adopt the first, third, fourth and fifth items. The specific analysis is as follows: 1. Regarding the first paragraph, if the company terminates the labor contract for this reason, it shall first prove that the company put forward clear employment conditions for the employee during the probationary period when admitting the employee, and conducted a corresponding assessment of the employee in accordance with the employment conditions during the probationary period, and the result of the assessment was non-conformity; 2. Regarding the third paragraph, if the company uses the reasons stipulated in this paragraph to terminate the labor contract, it generally bears a heavier burden of proof, first of all, it must prove that the employee has serious dereliction of duty, malpractice, and such behavior also causes major damage to the company, because the burden of proof is heavier, there are also certain difficulties in evidence collection, and generally the company uses this paragraph less to terminate the labor contract; 3. Regarding the fourth paragraph, there are two conditions that must be met at the same time, the employee not only establishes labor relations with other employers, but also has a serious impact on the essential work or refuses to make corrections after the company proposes it; 4. With regard to paragraph 5, when a labor contract is invalid, Item 1, Paragraph 1 of Article 26 of the Labour Contract Law stipulates that if the other party concludes or modifies the labor contract contrary to its true intention by means of fraud or coercion or taking advantage of the danger of the other party, it shall be invalid. Of course, if the company's employees are indeed in the probationary period during the epidemic, and the company has already been assessed, and the assessment result is that they do not meet the employment conditions, they can naturally use the first paragraph to terminate them. In addition, if the company discovers that there are circumstances that meet the provisions of paragraph 5 when concluding a labor contract with an employee, the company shall also terminate the labor contract.

During the epidemic, the company may use more reasons specified in paragraphs 2 and 6. The specific analysis is as follows: 1. When the company adopts the second paragraph for termination, it is worth noting that the company should first formulate rules and regulations through democratic procedures, and there are corresponding provisions in the rules and regulations. In addition, if the company is a subsidiary and there are currently no rules and regulations, according to the fourth paragraph of Article 18 of the Guiding Opinions on the Trial of Labor Dispute Cases issued by the Jiangsu Provincial Higher People's Court and the Jiangsu Provincial Labor Dispute Arbitration Commission (Su Gao Law Examination Commission [2009] No. 47), the subsidiary may implement the rules and regulations of the parent company, but the corresponding rules and regulations shall be publicized or notified to employees; 2. Regarding the reason in paragraph 6, if an employee of the company commits illegal or criminal acts during the epidemic and is investigated for criminal responsibility according to law, the labor contract may also be terminated, for example: committing crimes such as deliberately spreading false epidemic information, resisting epidemic prevention and control measures, etc., and being investigated for criminal responsibility.

3, the company's unilateral termination procedure

Although the company has the right to terminate the labor contract when the company's employees have any of the matters stipulated in Article 39 of the Employment Contract Law, according to Article 43 of the Labor Contract Law, the company shall still perform the procedures for notifying the labor union. If the company has not established a trade union, it shall inform the local trade union. In addition, according to Article 50 of the Labor Contract Law, when terminating a labor contract, a company shall also issue a certificate of termination of the labor contract, and go through the procedures for the transfer of insurance and personnel files within 15 days.

4, legal liability for illegal dismissal

Illegal termination will lead to two legal consequences, the choice lies with the employee, and the employee can choose to require the company to continue to perform the employment contract. In the event that the employee does not request performance or is already unable to perform, the company shall pay the employee compensation for illegal termination, that is, twice the economic compensation.

(This article is translated by software translator for reference only.)