Labor Law & Employment Compliance
Professional legal research in Labor Law & Employment Compliance.
Series on Directors, Supervisors, and Senior Management Under the New Company Law (Part V): Potential Legal Risk Prevention and Control for Senior Management Resignation
Attorney KE Cheng, combining the 2024 new Company Law and labor law practice, systematically reviews the legal risks and prevention pathways for senior management resignation. It first analyzes the conflict between the board's no-cause dismissal power under company law and the for-cause termination of labor relationship under labor law, proposing a coordination solution by transforming senior management's fiduciary duties into lawful grounds for termination. Second, regarding voluntary resignation, it highlights risks and countermeasures concerning trade secret infringement, non-compete obligations, post-resignation invention ownership disputes within one year, and issues related to issuance of resignation certificates and工商 registration changes. Finally, for unilateral dismissal by the company, it clarifies specific measures to prevent courts from ordering continued performance of labor contracts, high compensation due to evidentiary defects, and senior management's refusal to return company seals and assets, recommending that companies improve internal controls, standardize dismissal procedures, and preserve evidence in advance, providing compliance guidance for practical operations.
Compliance Guide for Employer Termination of Labor Contracts on Grounds of Incompetence
Attorney LI Jupeng and DU Meili provides guidance on the compliant operation of terminating labor contracts on the grounds of "incompetence." Under the Labor Contract Law, such termination must strictly follow the three-step statutory process: "first proof of incompetence — training or job transfer — second proof of incompetence." In practice, specific quantifiable assessment indicators must be set and confirmed by the employee. Training must be targeted, job transfers must meet reasonableness and legality standards, and a Performance Improvement Plan (PIP) without embedded training content does not constitute lawful training. The article clearly states that "elimination of the last-place employee" is not equivalent to incompetence and cannot be used as a basis for unilateral termination. Given the high legal risk and strict evidentiary requirements of this type of termination, employers must maintain complete records throughout the process, pay economic compensation in accordance with law, and fulfill notice obligations. It is recommended that such terminations be carried out under the guidance of professional legal counsel to ensure compliance.
Paths and Methods for Resolving Labor Disputes: Facts, Reasons, Value Judgments, and Interest Balancing
Introduction: Labor disputes are inevitable issues in social and economic development, and their handling requires following certain paths and methods. This article conducts an in-depth discussion on the four-step method for handling labor disputes, namely fixing facts, stating reasons, value judgments, and interest balancing, aiming to provide theoretical support and practical guidance for the proper resolution of labor disputes. The handling of labor disputes concerns the vital interests of both workers and employers and affects social stability and harmony.
Analysis of the Judicial Determination Principles for "Failure to Pay Labor Remuneration in Full and on Time" Under Article 38 of the Labor Contract Law
Attorney LIU Yanfeng and LIANG Xinyuan explores the judicial determination standards for "failure to pay labor remuneration in full and on time" under Article 38 of the Labor Contract Law. The trial guidelines of multiple courts generally establish two major principles: the principle of good faith (examining the employer's subjective fault and objective reasons, excluding non-malicious disputes or calculation errors) and the principle of permitting correction (if the employer has rectified before the worker terminates the contract, economic compensation is not supported). The author argues that adjudication should not mechanically apply the statutory provisions based on their appearance alone, but should comprehensively consider subjective and objective factors, the enterprise's operating status, and social reality, pursuing the unity of legal and social effects to align with the legislative purpose of building and developing harmonious and stable labor relations.
Revision Suggestions and Rationale Regarding the Labor Dispute Judicial Interpretation (II) (Draft for Comments)
In response to the Supreme People's Court's "Judicial Interpretation (II) on the Application of Law in the Trial of Labor Dispute Cases (Draft for Comments)," Zheng Zhongkang, attorney at Long An (Guangzhou) Law Firm, proposed seven revision suggestions based on practical experience and formally submitted them to the Supreme People's Court. The core suggestions include: clarifying that equity incentives do not constitute labor remuneration, restricting application to direct shareholding scenarios and clarifying the exclusion scope of shareholder disputes; advocating that re-employment of retirees should be governed by the Civil Code for service contracts, recommending deletion or substantial revision of the original Article 6; changing the focus of provisions on illegal subcontracting and affiliation from "labor relationship" to "employer responsibility subject," clarifying that it is a pass-through of responsibility rather than a fiction of relationship, and supplementing rules for determining responsibility among multiple affiliated entities based on the closest connection principle; optimizing the review standard for unilateral job transfer and location changes, distinguishing unreasonable wage reduction from other adverse changes, and limiting "incompetence" to circumstances where the employer knowingly assigns unsuitable positions; adjusting the social insurance non-payment clause to add a precondition requiring the employee to demand payment and the employer to refuse before triggering legal consequences; and limiting the clause on wage payment during the dispute period from "may continue to perform" to "no objective obstacles to continued performance," excluding subjective willingness barriers. The overall recommendations aim to clarify the boundaries of legal application, balance labor and management rights and interests, and enhance the practical operability of the judicial interpretation.
Corporate Organizational Restructuring and Labor Relations Compliance Practice
Taking Alibaba's organizational restructuring driving performance growth as an introduction, this article systematically elaborates on compliant handling paths for labor relations under corporate structural changes. The article delves into the legal meaning of "significant change in objective circumstances" under labor law and the strict requirements for termination procedures. It reviews the key points of judicial review by adjudication authorities regarding the objectivity of adjustments, commercial reasonableness, impact on contract performance, good faith negotiation obligations, and protection of special groups. Based on practical experience, the article provides compliant operation guidelines for enterprises, including solidifying decision-making motives and resolutions, fulfilling democratic consultation and public announcement procedures, formulating written adjustment plans, maintaining full-process standardized documentation, prioritizing consensus-based negotiations, carefully using unilateral position transfers and terminations, and emphasizing the construction of multi-dimensional evidence piles to strengthen the evidence chain. Overall, enterprises need to carefully plan adjustment procedures on the premise of legal compliance, introduce professional support when necessary, and achieve both commercial goals and harmonious and stable labor relations.
The Scope of Obligation, Boundary of Liability, and Response Strategies for Employers' Statutory Deadline to Apply for Work Injury Identification — A Study and Review of Article 17 of the Work Injury Insurance Regulations Based on Case Law Analysis
Attorney LIU Yanfeng discusses the employer's obligation to apply for work injury identification within the statutory time limit under Article 17 of the "Regulations on Work Injury Insurance" and the legal liability for delayed application. Given that the legislation does not clearly stipulate circumstances exempting employers from liability for delayed applications due to non-attributable reasons, resulting in judicial practice mostly adopting mechanical literal interpretation and ruling that employers bear all costs, the article梳理s three mainstream judicial approaches and认同 the view that differentiation should be applied based on the principle of fault or legal principles. The author argues that the current regulations easily lead to an imbalance of interests between labor and capital, and calls for legislation to clarify liability blocking conditions. The article also recommends that employers establish a sound work injury reporting mechanism, clearly define employees' cooperative obligations in systems or contracts, and submit applications within the statutory period even when in doubt, while fully stating reasons, thereby optimizing employment compliance and risk management.
Research on Judicial Rules of "Fake Outsourcing" from a Big Data Perspective
Based on big data analysis of a large number of labor outsourcing dispute cases, this article points out that when enterprises adopt labor outsourcing to规避 employment risks, they are often deemed by courts as "fake outsourcing, real dispatch" due to improper management. Judicial adjudication abandons the外观主义 of contract names and adopts "subordination" and "substantive control" as core审查 standards, focusing on the attribution of management and command authority, the independence of the contractor's business, the method of remuneration payment, and the subject matter of the contract (work results vs. labor). Once substantively determined to have the characteristics of labor dispatch, the employing unit will be treated as a labor dispatch entity according to law and bear joint and several compensation liability. Enterprises should strictly distinguish the boundary between genuine and fake outsourcing, strengthen the contractor's independent management and work result delivery orientation, and achieve cost reduction and efficiency increase in a legal and compliant manner.
Legal Analysis of Employment Transfer Between Related Enterprises
With the development of enterprise groups and conglomerate structures, employee transfers between related enterprises have become increasingly common. This article examines the legal implications, rights protection, and compliance considerations of inter-company employee transfers.