Is it compensable for the delay in the payment of compensation?

E-Law answers:

Is it a refusal to pay during the enforcement phase of the court, or is it the employer who promises to give economic compensation but keeps delaying payment?

1. In the case of the former, according to Article 253 of the Civil Procedure Law, if the person subject to enforcement fails to perform the obligation to pay money within the period specified in the judgment, ruling or other legal documents, the interest on the debt for the period of delayed performance shall be doubled.

2. If the latter is the case, you can report to the labor inspection brigade, and the labor administrative department will order you to pay economic compensation within a time limit, and if you fail to pay within the time limit, you will be ordered to pay additional compensation according to the standard of 50% to 100% of the amount payable. You can apply to the labor dispute arbitration commission where the employer is located for arbitration and request the employer to pay.

According to article 253 of the Civil Procedure Law, if the person subject to enforcement fails to perform the obligation to pay money within the period specified in the judgment, ruling or other legal documents, the interest on the debt for the period of delayed performance shall be doubled.

Zhonggu Legal Network.

Labor Contract Law of the People's Republic of China.

Article 85 In any of the following circumstances, the labor administrative department shall order an employer to pay labor remuneration, overtime pay or economic compensation within a specified period of time; If the labor remuneration is lower than the local minimum wage standard, the difference shall be paid; If the employer fails to pay within the time limit, the employer shall be ordered to pay additional compensation to the employee at the rate of not less than 50% but not more than 100% of the amount payable

4) Dissolving or terminating a labor contract without paying economic compensation to the worker in accordance with these Regulations.

The term "unjustified arrears" as mentioned in Article 18 of the Provisions refers to the employer's failure to pay the employee's wages beyond the prescribed salary payment time without justifiable reasons. Excludes:

1) The employer is unable to pay wages on time due to natural disasters, wars and other reasons that are beyond human resistance;

2) If an employer is affected by difficulties in production and operation and capital turnover, it may, with the consent of the labor union of the employer, temporarily postpone the payment of wages to its employees, and the maximum limit of the extension period may be determined by the labor administrative departments of each province, autonomous region or municipality directly under the Central Government in accordance with the local situation. In all other cases, wage arrears are unjustified.

1. Circumstances under which compensation may be paid.

Article 18 of the Interim Provisions on the Payment of Wages stipulates that the labor administrative departments at all levels have the right to supervise the payment of wages by employers. If an employer commits any of the following acts that infringe upon the legitimate rights and interests of a worker, the labor administrative department shall order the employer to pay the wages and economic compensation to the worker, and may also order the employer to pay compensation:

1) Withholding or defaulting on the wages of workers without reason;

2) Refusal to pay wages for extended working hours;

3) Paying wages to workers at a rate lower than the local minimum wage.

The standards for economic compensation and compensation shall be implemented in accordance with the relevant provisions of the State.

2. What is the compensation for arrears of wages?

According to the Measures for Economic Compensation for Violation and Termination of Labor Contracts, if an employer deducts or defaults on the employee's wages without reason, or refuses to pay the employee's wages and remuneration for extended working hours, in addition to paying the employee's wages and remuneration in full within the prescribed time, it shall also pay an additional economic compensation equivalent to 25% of the wages and remuneration; If the employer pays the employee wages and remuneration lower than the local minimum wage, it shall pay an additional severance equal to 25% of the lower part while making up the lower part of the wage.

4. Can an employee claim severance payment?

According to the first paragraph of Article 85 of the Labor Contract Law, "the employer fails to pay the employee's remuneration in accordance with the provisions of the labor contract or in accordance with the provisions of this Law." The labor administrative department shall order the payment of labor remuneration and overtime pay or economic compensation for the termination or termination of the labor contract within a time limit; If the employer fails to pay within the time limit, the employer shall be ordered to pay additional compensation to the employee at the rate of 50% to 100% of the amount payable.

At the same time, according to the Measures for Economic Compensation for Violation and Termination of Labor Contracts issued by the former Ministry of Labor, if an employer deducts or defaults on the wages of an employee without reason, in addition to paying the employee's wages and remuneration in full within the prescribed time, it shall also pay an additional economic compensation equivalent to 25% of the wages and remuneration.

In this case, Mr. Sun could have demanded that the company pay him severance for his wages from April 2006 to February 2007, but the company could not afford to pay the employees wages because of their lack of cash flow.

Mr. Sun can negotiate with the employer; If the negotiation fails, the employer may directly initiate labor arbitration and demand that the employer pay the arrears of wages and remuneration and economic compensation equivalent to 25% of the wages and remuneration. or apply directly to the local court for a payment order; It is also possible to sue the court for payment of economic compensation.

If the employer's wage arrears are serious, Mr. Sun can file a complaint with the police for refusing to pay his remuneration.

1. During the probationary period, if it is confirmed that the employee does not meet the employment conditions, there is no need to pay economic compensation.

2. Labor Contract Law

Article 39 An employer may terminate a labor contract under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.

1. Circumstances under which compensation needs to be paid.

According to Article 46 of the Labor Contract Law, although the law does not clearly stipulate that severance shall be paid to the dismissal of an employee during the probationary period, it does not exclude the payment of severance payment, and Article 38 of the Labor Contract Law stipulates that the catch-all clause that an employee may terminate a labor contract under the following circumstances stipulates that "the employee may terminate the labor contract under other circumstances stipulated by laws and administrative regulations." Accordingly, if there is a circumstance that causes the employee to terminate the contract, the employer is required to pay economic compensation.

Article 46 of the Labor Contract Law shall pay economic compensation to the employee under any of the following circumstances:

1) The worker terminates the labor contract in accordance with the provisions of Article 38 of this Law;

2) The employer proposes to terminate the labor contract to the employee in accordance with the provisions of Article 36 of this Law and terminates the labor contract through consultation with the employee;

3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law;

4) The employer terminates the labor contract in accordance with the provisions of the first paragraph of Article 41 of this Law;

5) Terminating a fixed-term labor contract in accordance with the provisions of Paragraph 1 of Article 44 of this Law, except in the case where the employer maintains or improves the agreed conditions of the labor contract and the employee does not agree to renew the labor contract;

6) Termination of the labor contract in accordance with the provisions of Paragraphs 4 and 5 of Article 44 of this Law;

7) Other circumstances provided for by laws and administrative regulations.

During the period of use, if the employer finds that the employee does not meet the admission requirements agreed upon during the interview, or if the employee is found to have violated the company's rules and regulations, the employer may dismiss the employee at any time, and the employee shall only be compensated, in addition to other expenses.

Legal analysis: 1. The contract is invalid due to fraud, coercion or taking advantage of the danger of the employee;

2. It is proved that the employment criteria are not met within the applicable period;

3. Serious non-compliance with the rules and regulations of the unit;

4. The unit suffers major losses due to serious dereliction of duty and other behaviors;

5. The worker establishes multiple labor relations without permission, and refuses to make corrections after the employer expressly refuses to make corrections;

6. The worker commits a criminal offense and is held criminally responsible. The aforesaid circumstances are also the conditions under which an employer may terminate an employment contract from an employee as prescribed by law.

Legal basis: Labor Contract Law of the People's Republic of China

Article 26 The following labor contracts are invalid or partially invalid:

1) Using fraud, coercion or taking advantage of the danger of others to cause the other party to conclude or modify a labor contract contrary to its true intentions;

2) The employer exempts itself from statutory liability and excludes the rights of employees;

3) Violating mandatory provisions of laws or administrative regulations. If there is a dispute over the invalidity or partial invalidity of the labor contract, it shall be confirmed by the labor dispute arbitration institution or the people's court.

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to change his or her fortune after being proposed by the employer;

5) The labor contract is invalid due to the circumstances provided for in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.