Should workers pay economic compensation if they propose to terminate their labor contracts due to the epidemic?
Q: Do workers have to pay economic compensation if they want to terminate their labor contracts due to COVID-19?Answer: there is sufficient evidence to prove business difficulties, and the implementation of relevant procedures, generally do not have to pay.According to article 38 and Article 46 of the Labor Contract Law, if the employing unit fails to pay labor remuneration in time and in full, the laborer may request to terminate the labor contract, and the employing unit shall pay economic compensation.Will the above provisions apply if the employer fails to pay wages or living expenses according to the prescribed standards due to the epidemic?Basis “salary pays interim regulation” the regulation of 12, stop production because of laborer reason not, pay inside a salary cycle, issue normal salary, exceed a salary to pay a cycle, issue living expenses.Living expenses are not the same in different provinces. Jiangsu Province, where the author lives, is not less than 80% of the minimum wage standard, and the individual part of social security and housing accumulation fund is also borne by the unit.The author thinks that, its meaning in different contexts and provisions are not the same, “labor contract law” article 38 of the legislative purpose is to prevent malicious default unit of choose and employ persons laborer labor remuneration, the labor remuneration of here should be narrowed to explain, only unit of choose and employ persons is malicious default labor remuneration, to apply the above clause.The Ministry of Labor (1995) no. 226, concerning the printing and distribution of the “Temporary Provisions on wage Payment” supplementary provisions concerning the notice of the fourth provision: “‘ unreasonable delay in payment ‘means that the employing unit does not pay wages beyond the prescribed time without justified reasons.Excluding :(1) the employer fails to pay wages on time due to natural disasters, wars and other reasons beyond human power;(2) The employing unit is really because of production and management difficulties, capital turnover is affected, after obtaining the agreement of the labor union of the unit, it can temporarily postpone the payment of workers’ wages, the longest limit of the delay time can be determined by the labor administrative department of each province, autonomous region, municipality directly under the Central Government according to the circumstances of each place.In other cases, wages are unpaid without cause.”It can also be seen from this regulation that the emphasis is on “unpaid payment without reason”. If it is due to objective reasons rather than subjective malice of the employer, such as the bad economic situation, economic difficulties encountered in the environment and the impact of the epidemic, the employer does not deliberately default on labor remuneration and strive for funds to pay labor remuneration.Can not directly apply the provisions of article 38 of the Labor Contract Law.So, what should we pay attention to in the process of operation?First, employers should provide sufficient evidence to prove that they are unable to pay salaries in full and on time due to difficulties caused by the epidemic and other objective reasons.2 it is, unit of choose and employ persons ought to the regulation according to place, fulfill relevant procedure.For example, Article 40 of Wage Payment Regulations of Jiangsu Province stipulates: “If the wage payment of laborers is delayed due to force majeure, the wages of laborers shall be paid within 30 days after the elimination of force majeure reasons.Unit of choose and employ persons because of the production and operation truly difficult, capital turnover severely affected unable to pay wages to labourers in the wage payment agreed upon in the cycle, should be given in writing to the laborer, the consent of the trade unions or workers after the consent of the congress (tuc), can delay payment of wages, but the longest must not exceed 30 days.””Beijing wage payment regulations” article 26 provisions: “the employing unit due to production and business difficulties temporarily unable to pay wages, shall explain the situation to the workers, and after consultation with the trade union or employee representatives, can delay the payment of wages, but the longest shall not exceed 30 days.In specific judicial practice, some provinces have relevant guidelines. Take Jiangsu Province, where THE author lives, as an example. Article 22 of the Guidance on Mediation and Case Hearing of COVID-19 Related Labor Disputes issued by jiangsu Provincial High People’s Court stipulates: “Payment of economic compensation.Where the laborer terminates the labor contract due to the circumstances specified in Item (1), (2) and (3) of Article 38 of the Labor Contract Law of the People’s Republic of China during the epidemic prevention and control period, and requests the employing unit to pay economic compensation, the laborer shall take into account the actual situation of the employing unit affected by the epidemic.Taking into consideration the subjective malice, the degree of violation and the local policies of the delinquency of labor remuneration, the adjustment of work position, the failure to pay social insurance according to law and other factors, the decision was made cautiously.”Therefore, the failure to pay the labor remuneration in full shall be limited to the employer’s subjective bad faith. The provisions of Article 38 and Article 46 of the Labor Contract Law shall not apply if the employer performs corresponding procedures due to objective reasons and provides sufficient evidence.