How can college students protect their labor rights?

How to protect your labor rights?

2009-10-30 13:39:00) According to the survey, the legitimate rights and interests of migrant workers have been innocently violated from time to time.

How can migrant workers protect their legitimate rights and interests? First of all, it is necessary to sign a labor contract in accordance with the law Before being hired, the worker must comply with the national labor contract law.

and sign an employment contract with the employer. In the event of a labor dispute.

or personal injury, with the contract as evidence, it is convenient to collect evidence after the intervention of the labor inspection department, which is conducive to the resolution of the problem. When signing a contract, the following matters should be noted: First, agree on the corresponding probationary period.

If the employment period is 1 year, the probationary period shall not exceed 1 month; If the employment period is 1 3 years, the probationary period shall not exceed 3 months; If the employment period is more than 3 years, the probationary period shall generally not exceed 6 months. The probationary period shall be counted towards the duration of employment. Second, labor insurance benefits are clearly guaranteed.

The Contract clearly stipulates that the employing unit shall, in accordance with national laws, regulations and policies, pay social insurance premiums to the social insurance department on time and in full for the hired person. The hired person suffers from an occupational disease.

or work-related injuries and illnesses, as well as pregnancy and maternity leave for female workers.

and the treatment during breastfeeding, the employing unit must be implemented in accordance with the relevant provisions of the state, provinces and cities. In addition, the employing unit must ensure that employees enjoy public holidays in accordance with the law.

Marriage and funeral leave, paid annual leave.

Wait. Third, the content of the work and the remuneration are agreed in advance. In the "Employment Contract", special terms are listed for the employment position and position, job responsibilities, content and working conditions, and work remuneration, etc., which are required to be signed through negotiation between the employing unit and the hired person.

Fourth, the content of the contract shall not be changed without authorization. Units and individuals are not allowed to make changes to the contents of the Contract in principle, but the employer and the hired party may negotiate to supplement the unfinished matters. The second is to report in a timely manner and protect rights in a timely manner.

After their legitimate rights and interests are infringed, the migrant worker shall promptly file a complaint with the local labor inspection department, prepare the reporting materials, and provide his or her valid documents. According to the relevant regulations on labor supervision and inspection, as long as the employer is in arrears of wages to the worker without reason, the labor inspection department can accept it, and once it is verified, it will require the employer to pay the arrears of wages. If the employer fails to pay the wages, the labor inspection department will issue a decision to the employer in accordance with legal procedures, ordering the employer to fulfill its statutory obligations and return the wages of the workers.

If the employer still refuses to pay the wages, the labor inspection department will apply to the court for compulsory enforcement, so that the legitimate rights and interests of the workers can be protected. In particular, it should be emphasized that when recovering wages or dealing with work-related accidents, workers must follow legal procedures and must not act in violation of the law.

Maintained in accordance with the provisions of laws and regulations.

Legal Analysis: An employment contract is an agreement signed between an employee and an employer to establish an employment relationship and clarify the rights and obligations of both parties. College students do not have the qualifications of workers under the Labor Law and cannot sign labor relations, but they can sign labor contracts to protect their legitimate rights and interests.

Legal basisLabor Contract Law of the People's Republic of China

Article 68 "Part-time employment" refers to a form of employment in which the average daily working hours of the workers in the same employer do not exceed four hours, and the cumulative working hours per week do not exceed 24 hours.

Article 69 The parties to a part-time employment may take turns to enter into an oral agreement.

There are three ways to protect the employment rights of college students:

Based on his years of experience as a labor and employment legal consultant, the lawyer has provided four tips for graduates who are looking for jobs.

First, an agreement is not a substitute for a contract.

Fresh graduates of colleges and universities will sign a tripartite agreement with the school and the employer when they are employed, which is witnessed by the school, and the graduates and the employer sign an agreement of intent, which has legal effect, but it cannot replace the labor contract.

Graduates must sign a labor contract after they go to work at the employer. Legally, any employer that requires an employee to pay for him or her (to establish an employment relationship) must sign a formal employment contract, and failure to do so is an illegal act and will result in a fine from the labor inspectorate.

Second, the upper limit of liquidated damages should be agreed.

The liquidated damages in the tripartite agreement must be agreed upon by the graduate and the employer after negotiation, and the amount of liquidated damages must comply with the relevant regulations of the employer's location. At present, most parts of the country do not clearly stipulate the upper limit of liquidated damages, in which case the amount negotiated by both parties shall prevail. Graduates and employers can also agree on liquidated damages to deal with the employer's breach of contract, so as to protect their own rights and interests.

Since the two parties to the tripartite agreement are the employee and the employer, if the student wants to break the contract, unless there is a special agreement between the student and the school, then the school will not be able to collect liquidated damages from the student under normal circumstances.

3. Verbal commitments should be included in the remarks.

More than 90% of the tripartite agreements for graduate employment are blank. He said that due to the lack of social experience and legal knowledge, many graduates believe in some verbal promises from employers because they are eager to find employment, and often have disputes with employers after arriving at their posts.

Graduates must pay attention to make full use of the remarks column of the employment agreement, and try to clearly write the commitments of the unit, such as vacation, housing subsidy, settlement of household registration, insurance and other commitments, into the remarks column, so as to effectively protect their legitimate rights and interests.

In order to truly and effectively protect the employment rights and interests, graduates must firmly establish the following "five consciousnesses": legal awareness, contract awareness, rights protection awareness, evidence awareness, and integrity awareness.

The protection of the employment rights and interests of college students is a systematic project, and while we emphasize the creation of a good background and atmosphere from the legal and institutional level, we must also strengthen the guidance and education for the self-protection of the employment rights and interests of graduates, which must run through the entire university life of students and must be well reflected in the career planning education of the school.

It is an urgent task to build an effective protection system for the employment rights and interests of graduates and effectively safeguard the interests of multiple subjects, which is related to the establishment of harmonious employment relations and the stability of schools and society.

1. Self-defense. It refers to the lawful acts carried out by citizens in order to protect their own rights and interests and rely on their own strength when their legitimate rights and interests are infringed or threatened, such as legitimate defense and emergency avoidance.

2. Negotiation and reconciliation. Negotiation and reconciliation refer to the communication and exchange between the infringed citizen and the infringer in accordance with the law, so as to reach a plan and consensus to protect the legitimate rights and interests. Negotiation and settlement are common methods for the infringed party to remedy their own rights and interests, but negotiation and settlement must follow an important principle - legality.

3. Mediation and arbitration. A third party (mediation institution or mediator) will mediate and make peace between the parties to the dispute, and persuade the parties to the conflict with certain legal norms and ethics to ensure that they reach an agreement to resolve the dispute on the basis of mutual understanding and mutual accommodation. Arbitration refers to the hearing and adjudication of a dispute by an arbitration institution selected by both parties.

4. Litigation. Commonly known as litigation, it is to sue the judicial authorities to argue the merits. Judicial litigation is the ultimate way for citizens to protect their legitimate rights and interests.

5. Judicial proceedings. It refers to the system in which college students' personal rights, property rights, and other legitimate rights and interests are infringed upon by schools and teachers, and they submit a request for relief to the court in accordance with the legal procedures. This is the ultimate way to remedy the legitimate rights and interests of college students.

Internship refers to the process of students participating in practical work in the work of employers, and its purpose is practical learning, in order to integrate theory with practice and better learn and understand scientific and cultural knowledge. So how are interns' labor rights reflected? The intern protection should be reflected in the civil law The intern and the unit establish a general civil employment relationship, and do not enjoy wages, and the subsidy during the internship period of the intern should be decided through consultation with the unit, and the law does not stipulate that the unit must pay.

Some people have raised the question of why there is no labor relationship between the two parties even though they are students in the internship process, but at the same time they are also labor providers. At the present stage, China's labor law only regulates the labor contract infiltration relationship formed due to employment. In fact, there are still many forms of employment in China, especially some forms of flexible employment, that are not included in the scope of protection of the labor law.

At present, the so-called part-time student work is actually divided into two categories, one is internship, and the other is work-study. The former category is an integral part of education; The latter category is only a supplement to study, and its purpose is to contact the society and subsidize the family. Neither the former nor the latter can be forms of employment.

This fundamentally precludes the possibility of applying labor law. Therefore, if a dispute arises between the two parties, the solution is still through civil affairs. In the Civil Code, some provisions should be made to clarify the minimum standards for the labor protection and rights and interests of interns in vocational schools and universities, and should also earnestly perform the statutory duty and harassment responsibilities, and strengthen the supervision and guidance of enterprise employment and school internship activities, which may be helpful to the formation of a formal and orderly internship market.

As for the voices that have proposed that the labor status and labor relations of interns should be clarified in the labor law, a realistic institutional arrangement is that many real-life factors need to be considered and balanced. Institution-building, which does not take into account conditions, is actually just a measure to mess up social relations. "Expanding the scope of application is not just a simple addition or subtraction, it involves both the adjustment of interests and the normative approach.

If college internships or work-study programs are included in the areas covered by the labor law, then the first thing to do is whether the labor law is applicable in whole or in part? Obviously, it is unrealistic for a student to demand a full set of labor discipline, working hours, and social insurance regulations, and a system that partially applies the labor law is needed. "The expansion of the scope of application of the labor law involves the arrangement of the entire legal system, and it is by no means a simple patch, otherwise it will inevitably cause social chaos.

1. In the event of a labor dispute, the worker may negotiate with the employer, or ask the labor union or a third party to negotiate with the employer to reach a settlement agreement.

2. If the parties are unwilling to negotiate, fail to negotiate or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation;

3. If the applicant is unwilling to mediate, fails to mediate, or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration;

4. Unless otherwise provided in this Law, a person who is dissatisfied with the arbitral award may file a lawsuit with the people's court.

The claimant applying for arbitration shall submit a written application for arbitration and submit copies according to the number of respondents.

The statement of claim for arbitration shall contain the following particulars:

1) The name, gender, age, occupation, work unit and domicile of the worker, the name and domicile of the employer, and the name and position of the legal representative or principal responsible person;

2) the claim for arbitration and the facts and reasons on which it is based;

3) Evidence and evidence**, names and addresses of witnesses.

If it is really difficult to write an arbitration application, it may apply orally, and the labor dispute arbitration commission shall record it in the record and inform the other party.

Except as otherwise provided in this Law, the arbitral award shall be final and effective from the date of its issuance

1) Disputes over the recovery of labor remuneration, medical expenses for work-related injuries, economic compensation or compensation, which does not exceed the amount of the local monthly minimum wage standard for 12 months;

2) Disputes arising from the implementation of national labor standards in terms of working hours, rest and vacation, social insurance, etc.

If the worker is not satisfied with the final award, he may file a lawsuit with the people's court within 15 days from the date of receipt of the arbitral award.

If a party is dissatisfied with an arbitral award in a labor dispute case other than the final award, it may file a lawsuit with the people's court within 15 days from the date of receipt of the arbitration award; If no prosecution is made at the expiration of the time limit, the ruling shall take legal effect.

Article 5 of the Labor Dispute Mediation and Arbitration Law provides that in the event of a labor dispute, if the parties are unwilling to negotiate, fail to negotiate or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation; If the applicant is unwilling to mediate, fails to mediate, or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration; If a person is dissatisfied with an arbitral award, he or she may file a lawsuit in the people's court, except as otherwise provided by this Law.