It is approaching the end of the year. Many friends may want to change jobs. Considering the year-end bonus, they have to last until the end of the year. However, is it legal for the company to require employees to work until the end of the year before giving year-end bonus?
Let’s see what the lawyers say!
01
Qualitative year-end bonus
my country’s current labor laws, regulations and rules do not have a definition of year-end bonus, let alone whether an enterprise should issue a year-end bonus.
Year-end bonus, as the name suggests, is usually considered to be an additional reward. It seems that it should be distinguished from the salary received by workers during their normal work, but in fact this may not always be the case.
1. First of all, we can find the following sources of the qualitative year-end bonus from the departmental regulations of the National Bureau of Statistics:
1. "Regulations of the National Bureau of Statistics on the Composition of Total Wages" (National Bureau of Statistics Order No. 1 on January 1, 1990)
Article 4 The total salary is composed of the following six parts:
(1) Time wages; (2) Piece wages; (3) Bonuses; (4) Allowances and subsidies; (5) Overtime wages; (6) Special circumstances wages paid below.
Article 7 Bonuses refer to excess labor remuneration paid to employees and labor remuneration for increasing revenue and reducing expenditure.
includes: (1) Production Award; (2) Saving Award; (3) Labor Competition Award; (4) Incentive wages from agencies and institutions; (5) Other bonuses.
2. "Interpretation of several specific scopes of the National Bureau of Statistics' regulations on the composition of total wages" (released on January 1, 1990)
2. Regarding the scope of bonuses
(1) Production (business) awards include over-production awards, quality awards, Safety (no accident) award, comprehensive award for assessing various economic indicators, early completion award, foreign ship expedited award, year-end award (labor dividend), etc.
After the above combing, we can draw the conclusion:
The year-end bonus is a bonus with the nature of labor remuneration and is an integral part of salary.
However, the acquisition of this bonus is not completely unconditional, but is conditional on the company's success in increasing revenue and reducing expenditure and the workers' excessive efforts.
The next question is:
How to measure the so-called "enterprises have achieved results in increasing revenue and reducing expenditure" and "laborers have put in excess work"?
To this end, we might as well borrow the definition of "one-time bonus throughout the year" from my country's tax policy:
"Notice of the State Administration of Taxation on Adjusting the Methods for Calculation and Collection of Personal Income Tax on Individuals Obtaining One-time Bonuses throughout the Year" (State Taxation Development and Reform Commission) [2005] No. 9)
1. One-time annual bonus refers to a one-time bonus paid to employees by withholding agents such as administrative agencies, enterprises and institutions based on their annual economic benefits and comprehensive assessment of their annual work performance. Sex bonus.
The above-mentioned one-time bonus also includes year-end salary increase, annual salary and performance salary realized based on the assessment situation by units that implement annual salary system and performance salary method.
From this definition, it is not difficult for us to extract two key considerations for year-end bonuses, namely:
"The enterprise's economic benefits throughout the year" and "the comprehensive assessment of employees' performance throughout the year". These two factors may It can correspond to "enterprises have achieved results in increasing revenue and reducing expenditure" and "laborers have put in excess work", and are easier to quantify.
Based on this and combined with a large number of corporate practices, the author tries to make a qualitative analysis of the year-end bonus as follows:
Type 1:
In this case, the year-end bonus is positively correlated with the company's annual economic benefits and the employee's annual performance appraisal results;
Others As a conditional bonus, whether or how much will be paid depends on the prior agreement between labor and management on the conditions for payment, or the company's rules and regulations on the conditions for payment.
Type 2:
In this case, the year-end bonus is only positively related to the company's annual economic benefits (focusing on the overall performance of the organization), and is not directly related to the employee's full-year performance appraisal results, but it may still be related to the employee's performance in the company. It is related to the rank, position category, length of time on the job that year, etc.
This kind of conditional bonus (similar to a profit/income sharing plan) may be largely due to the fact that the company is expected to achieve considerable operating benefits that year, and investors and decision-makers temporarily introduce incentives to boost morale and inspire people. Measures are of a certain sporadic nature and there are no prior agreements or institutional regulations.
Type 3:
In this case, the year-end bonus has nothing to do with the company's annual economic benefits or the employees' annual performance appraisal results.
Most companies want to retain employees with year-end bonuses but are unwilling to spend additional funds, so they make a fuss about the design of the salary structure, changing the 12-month salary a year into the so-called "13 salary", "1n salary" and so on. ;
usually withhold part of the monthly wages that should be paid to workers, and wait until the end of the year to pay them together as year-end bonuses. In the final analysis, they are still the wages that workers deserve.
02
Do employees who leave midway have the right to claim a year-end bonus from the company?
Based on the above characterization, the problem in question has become easy to solve, and it is described as follows:
1. For type 3 year-end bonus, is the composition of the wages that workers deserve. In part, the company's wage structure is designed in this way, which is usually stipulated in the company's rules and regulations;
or it is stipulated in the labor contract, or it is clearly stated in the employment notice (Offer) issued by the company to workers.
In this case, employees who leave midway have the right to claim from the company the year-end bonus for that year. If they have been on the job for less than a full year, they have the right to ask for it to be converted based on the actual time on the job that year.
2. For the year-end bonus of type 1, it is a conditional bonus , and whether it will be paid and the amount will depend on the prior agreement on the payment conditions between the employer and the employee or the provisions of the company's rules and regulations on the payment conditions;
As long as the agreement or Mandatory provisions that do not violate national laws and regulations in terms of content and formulation procedures.
This falls within the reasonable scope of corporate autonomy in business operations, and also includes respect for the consensus of both labor and management.
In this case, if the employees who leave midway meet the agreed or stipulated conditions for the payment of year-end bonuses, they have the right to claim the corresponding amount of the year-end bonus from the company;
If they do not meet the requirements, of course they have no right to claim.
A question that may arise here is:
If the company's annual economic performance meets the established conditions for the issuance of year-end bonuses, but the employees fail to complete the annual performance appraisal for that year due to early termination of the labor contract, resulting in that they do not meet the conditions for the issuance of year-end bonuses. , how to deal with it?
In principle, such hypothetical situations should still be judged and handled according to the above basic ideas;
In addition, according to the relevant provisions of the Civil Code on conditional civil legal acts, if the enterprise aims to prevent the achievement of the conditions for the issuance of the year-end bonus Once an employee's labor contract is terminated in advance;
once the labor arbitration institution or court determines that the termination is illegal, the employee who leaves midway still has the right to request the company to issue a year-end bonus based on the principle of "equal pay for equal work."
For specific calculations, you can refer to the calculation method of the company issuing year-end bonuses to other workers of the same type of work, the same position, the same level, and the same performance level as the resigned workers;
calculate the amount of year-end bonuses that the resigned workers could have received. , and then calculate the amount of the year-end bonus he deserves that year based on his actual time on the job that year.
The above views on type 3 and type 1 have formed a consensus in the judicial practice of Chongqing:
On September 11, 2017, the First Civil Tribunal of Chongqing Higher People's Court issued the "Special Topic on the Application of Laws in Labor Dispute Cases" issued by six departments. Symposium Minutes (2)》
8. The issue of year-end bonus for early termination of the labor contract
If the employer retains part of the employee's labor remuneration and issues it to the employee as a year-end bonus at the end of the year, if the labor contract has not expired If the employee is terminated at the end of the year, the employer shall pay the employee a year-end bonus for the corresponding period.
If the labor contract clearly stipulates that the employer shall pay a certain amount of year-end bonus to the employee at the end of the year if the employee completes certain work tasks or meets certain conditions, and if the labor contract is terminated before the end of the year, the People's Court shall upon review determine that the employee has not If the agreed work tasks are completed or the conditions for the payment of the year-end bonus are not met, the employee's request for the employer to pay the year-end bonus will not be supported.
3. Regarding the year-end bonus of type 2, although is a conditional bonus, there is no prior agreement or institutional regulations on the conditions for issuance. It is more of an occasional or contingent incentive policy temporarily introduced by the company. .
In this case, the request for the payment of year-end bonuses by employees who leave midway should be supported in accordance with the principle of "equal pay for equal work" established in Article 18 of the Labor Contract Law.
03
Enlightenment and Suggestions for Enterprises
Year-end bonus can be said to be an important magic weapon for enterprises to stimulate employees' work enthusiasm, increase loyalty and enhance cohesion, but it must be given properly to be effective.
In order to avoid unnecessary labor disputes caused by the payment of year-end bonuses and establish more harmonious and stable labor relations, it is recommended that enterprises:
1. Definition and nature of year-end bonuses and other various bonuses and benefits in corporate rules and regulations. The distribution and enjoyment methods and processes have made clear and detailed provisions. In the specific system design, attention should be paid to fairness and rationality while adhering to legal compliance;
At the same time, because these matters directly involve the vital interests of employees, enterprises Attention should also be paid to strictly complying with the provisions of Article 4 of the Labor Contract Law and performing democratic procedures and public notification procedures.
2. In the employee’s individual labor contract or collective labor contract, clearly stipulate the distribution objects, time, standards, corporate operating performance and personal performance conditions of the year-end bonus to improve predictability.
3. Enterprises should pay special attention to establishing and improving the employee performance management system, and truly strictly follow the cycle of performance goal setting, regular assessment, result feedback and appeal, adjustment and improvement;
and pay attention to the solidification and retention of relevant evidence during the operation process. , so as not to bear the adverse consequences of being unable to provide evidence in labor disputes.
