March 29 was Feng Ming’s 24th and last day working at a mask factory in Yuyao. In fact, he is an employee of a four-star hotel in Ningbo. After this year’s Spring Festival holiday, affected by the epidemic, the passenger flow of the hotel where he worked dropped to almost zero, and the mask factory was working overtime day and night and was short of manpower. With the help of the government, , he and his colleagues joined the " shared employee " team.
During the epidemic, there were many "shared employees": restaurant waiters became supermarket stockers, movie theater ticket sellers came to e-commerce platforms to do sorting work, and KTV waiters became takeaway boys... So, what are "shared employees"? Under this new employment model, how to avoid labor disputes and protect the legitimate rights and interests of employees and enterprises? The reporter interviewed several lawyers to dig into the legal risks involved.
The employment of "shared employees" must be approved by the "old employer"
Zhang Zixuan, a lawyer at Zhejiang Zhelian Law Firm, said that "shared employees" are not a new thing that has just appeared. In the past, many companies have used this form of secondment. staff. To become a "shared employee", one must be organized under the lender's enterprise or obtain the consent of the lender's enterprise. "This is a prerequisite, otherwise the 'shared employee' will face the legal risk of rescinding the labor contract."
According to my country's Labor Contract Law and other relevant laws and regulations, when an employee is seconded, the lender is still the employer, and the lender is responsible for the employee's social security payment. "If employees join the 'shared employee' team without the consent of the lender, it may lead to legal consequences for the lender to terminate the labor contract." Zhang Zixuan emphasized.
Salary and working location must be clarified in advance
During the employee sharing period, if the seconding company changes the working location without authorization, how should the employees respond?
In the Labor Contract Law, the workplace is a necessary clause of the labor contract. The employer and the employee must reach an agreement through consultation. If the employer unilaterally changes the workplace, the employee has the right to terminate the labor contract and require the employer to pay economic compensation . However, in practice, there are many labor disputes caused by employers changing work locations.
Zhejiang Zhiren Law Firm lawyer Huang Xinfa suggested that when "shared employees" learn that the work location has changed, if they have any objections, they must raise it orally or in writing as soon as possible. According to relevant judicial interpretations, "the change of the labor contract is not in written form, but the verbally changed labor contract has been actually performed for more than one month, and the content of the changed labor contract does not violate laws, administrative regulations, national policies, and public order and good customs, the parties shall If a labor contract change is invalid on the grounds that it is not in writing, the people's court will not support it. "
In addition, how to avoid "shared employees" unequal pay for equal work ? Hou Zhihui, senior partner of Zhejiang Jindao Law Firm, said that if there is a large salary gap between "shared employees" and regular employees in the same position, the "shared employees" can claim "equal pay for equal work" from the seconded company, but they bear the burden of proof and need to provide Sufficient evidence. "This is very difficult for employees who are temporarily 'shared'. Therefore, both companies and employees must clarify the salary content in the "Borrowed Employee Agreement" to avoid unnecessary labor disputes." Who controls
, who bears the responsibility for work-related injuries?
During the "shared employee" secondment period, the seconded employee still has a labor relationship with the lender, but the actual employer is the seconded company. For "shared employees", whether the rules and regulations of the lender's company or the seconded company's rules and regulations should be applied to daily management. Under these two batons, where should "shared employees" go?
Hou Zhihui recommends signing a tripartite agreement when employees are seconded, and both companies clearly agree on "shared employees" at the level of employment management rules and regulations. For example, during the secondment period, the employees are managed by the seconding company and the rules and regulations of the secondment company shall apply; after the secondment is over, they will be managed by the lending company and its rules and regulations shall apply. This can avoid the situation of "chaotic warfare" where the responsibilities of both companies are unclear, and can also provide "reassurance" to employees.At the same time, the liability for breach of contract arising from any one of the three parties' violation of the secondment agreement also needs to be clearly agreed to protect the legitimate rights and interests of the three parties.
During the secondment period, if an employee is injured at work, how should the responsibility be borne? Zhang Zixuan said that my country has clear legal provisions on work-related injury compensation. According to the provisions of the Work-related Injury Insurance Regulations, if an employee is injured by a work-related injury accident while being seconded, the original employer shall bear the liability for work-related injury insurance, but the original employer and the seconded unit shall Compensation methods can be agreed upon. If an employee signs a relevant contract with the seconded company with the consent of the lender, the seconded company shall bear the employer's liability for personal injuries that occur during the employee's employment.
