The state has special protection for the labor rights and interests of female workers during pregnancy, but this does not mean that employers must not be able to dismiss pregnant female employees.
According to Article 39 of the Labor Contract Law: "The employer is proven to fail to meet the hiring conditions during the trial period, and the employer can terminate the labor contract with the workers.
First, if the employer has a legitimate reason, the female employee can be terminated during the trial period to terminate the labor contract.
From the perspective of the Contract Law, whether the labor force provided by the workers meets the employment standards of employers, it is the basis for employers to purchase their labor force and establish a labor contract with them.Similarly, the Labor Law also takes into account the full choice of both parties and stipulates the system of probation period.During the probation period, as long as the employer can prove that the workers do not meet the hiring conditions, they can lift the labor contract with them, even if the workers are special workers protected in the "third phase".
Second, the employer and the female employee of the pregnancy period to terminate the labor contract.
During the probation period, the reason for the employer to unilaterally relieve the labor contract is that the workers are proved to be not met with the hiring conditions, which is completely legal; if the employer relies on its pregnancy to lift the labor contract, or thinks that it is pregnant because of its pregnancy, it is considered to be pregnant.It does not meet the conditions of hiring and has no relevant evidence support, which constitutes an illegal termination of labor contracts. It is necessary to bear the corresponding legal liability.
2. Welfare benefits of the probation period
Agreement to the wage period of the trial period- "Labor Contract Law" a loophole.At the same time, the Labor Contract Law also guarantees the salary level of the laborer during the probation period: the salary of the workers shall not be lower than the minimum salary of the same position in the same position in the trial period or 80 % of the salary agreed in the labor contract.And reiterate the salary period of the trial period must not be lower than the minimum wage standard where the employer is located.
This Law has a low malicious maliciousness of wages in the probation period, and the behavior of using workers cheaply is worthy of welcoming.However, from the experience of the author’s years of practice, this strip is the same.The main reason is that the first condition in the clause shall not be lower than the minimum wages of the same position in the trial period or 80 % of the minimum wages of the same position in the unit or the salary agreed in the labor contract. Because the two are selected, as long as they have one of them,The situation meets the conditions. In other words, the probation period of the trial period is not lower than the minimum wage standard in the local area. As long as it is not lower than the minimum salary of the same position in the same unit, it is legal.In this way, the problem is very unfavorable to the workers, because the minimum wages are basically calculated by the employer. In other words, the trial period of the worker is that the employer has said it.This cannot be said to be a loophole in the Labor Contract Law.Here we remind workers to pay attention to this vulnerability to avoid malicious deception for employers to use the minimum salary of the same position.
3. Paying social insurance during the trial period
Article 19, paragraph 4 of the Labor Contract Law stipulates that the probation period is included in the term of the labor contract, and within the term of the labor contract, the employer to handle 5 insurances and one fund for social insurance for the employee is a legal obligation.
Only sign a separate trial period contract illegal law
In the judicial practice, some employers often sign a separate trial contract with the workers in order to avoid making labor contracts with the workers when recruiting workers. After the expiration of the trial contract period, they decide whether to formally hire the worker.The purpose is often to avoid the law, use cheap labor during the probation period, and facilitate the relief of labor contracts; the Labor Contract Law stipulates that the labor contract only agreed to the probation period, the probation period is not established, and the period is the term of the labor contract.
According to Article 17 of the "Beijing Labor Contract Regulations": If the trial period of the labor contract exceeds the deadline specified in the provisions of these regulations, the worker may require changes to the corresponding labor contract period, or the employer is required to pay more than the deadline for the period.Pay wages for non -trial salary standards.Employers shall change the term of the labor contract in a timely manner, or pay the salary in accordance with the non -trial salary standards.
The labor contract only agreesize the trial period, and the term of the labor contract is not agreed. If the worker requires the agreed time limit, the employer shall negotiate with the worker to determine the term of the labor contract.If the parties to the two parties do not consume the labor contract period, the term of the labor contract shall be determined in accordance with the provisions of Article 16 of these regulations.
Obviously, the two are different. According to the new law, the legal principles of the law should be implemented in accordance with 19 of the Labor Contract Law.
The author believes that from the perspective of judicial practice, the provisions of the law are too general, which will inevitably lead to ambiguity and confusion. For example, Wang works in a software company, and the contract only stipulates the probation period for 3 months.What should be dealt with within a working day? What should I do? According to the original intention of the original two parties as the trial period, then Wang only needs to notify the employer for the employer for 3 days in advance, and he can leave the employment and go through the procedures.According to the provisions of the Labor Contract Law, if the Labor Contract Law is only agreed on the trial period, the probation period is not established, and the period of this period is the term of the labor contract.During the term of the labor contract, if Wang wants to leave the company, he must notify the company 30 days in advance, which instead aggravates the responsibility of the workers and violates the initial intention of legislation.
In summary, pregnancy employees are generally protected by the law, but for employees who are pregnant during the probation period, they are very different from the formal employees.Then it can be lifted, which is also the right of employers, but the premise is that it must be legal.