Regarding the issue of liquidated damages in the employment contract What are the possible situation

1.There is a non-compete agreement with the company.

2.It is specified in the expatriate training agreement.

Liquidated damages can only be agreed in two cases.

1. There is special training;

2. Confidentiality agreement;

In other cases, the agreement is invalid.

Pinshang Law Firm, lawyer Liu.

Article 22 Where an employer provides a worker with special training expenses and provides him with professional and technical training, it may enter into an agreement with the worker to stipulate the period of service.

If the employee violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement. The amount of liquidated damages shall not exceed the training fees provided by the employer. The liquidated damages required by the employer shall not exceed the training expenses that should be apportioned for the unfulfilled part of the service period.

If the employer and the employee agree on the service period, it will not affect the increase of the employee's labor remuneration during the service period in accordance with the normal wage adjustment mechanism.

Article 23 The employer and the employee may agree in the labor contract to keep the employer's trade secrets and confidential matters related to intellectual property rights.

For employees who are obliged to maintain confidentiality, the employer may stipulate a non-compete clause with the employee in the employment contract or confidentiality agreement, and stipulate that after the termination or termination of the labor contract, the employee will be compensated monthly during the non-compete period. If the employee violates the non-compete agreement, he shall pay liquidated damages to the employer in accordance with the agreement.

Article 24 The persons subject to non-competition restrictions are limited to the senior management personnel, senior technical personnel and other personnel who have the obligation of confidentiality of the employer. The scope, region, and duration of the non-compete restriction shall be agreed upon by the employer and the employee, and the agreement on the non-compete restriction shall not violate the provisions of laws and regulations.

After the dissolution or termination of the labor contract, the period of non-competition for the personnel provided for in the preceding paragraph to go to another employer that has a competitive relationship with the unit that produces or sells the same kind of products or engages in the same kind of business, or starts their own business to produce or operate the same kind of products or engage in the same kind of business, shall not exceed two years.

Article 25 Except as provided for in Articles 22 and 23 of this Law, an employer shall not agree with a worker that the worker shall bear liquidated damages.

If the employer provides special training expenses for employees and conducts professional and technical training for employees, it may agree on the service period and liquidated damages, and if the employee violates the service period agreement, it shall pay liquidated damages to the employer in accordance with the agreement.

Where a unit and an employee agree on a non-compete clause, they may agree on liquidated damages. However, there are also restrictions on the application of the liquidated damages clause, such as the amount of liquidated damages shall not exceed the training fees provided by the employer, and the liquidated damages paid by the employee shall not exceed the training expenses apportioned by the part of the service period that has not yet expired. In addition to these two cases, it shall not be agreed that the employee shall bear the liquidated damages in other circumstances.

In violation of the provisions of this article, the employer and the employee shall agree on the liability for liquidated damages for the employee's breach of the term of the labor contract, and the agreement shall be invalid.

1. What are the terms of the labor contract?

1.The employment contract should stipulate the obligations of both parties in as much detail as possible. The benefit of stipulating the obligations of both parties is to ensure that both parties strictly perform their duties in accordance with the contract and prevent breach of contract; It also lies in the fact that when one party breaches the contract, there can be a clear basis for punishment.

For enterprises, in the labor contract, the position of the employee and his specific responsibilities should be clarified, and the specific requirements for the job should be clarified. In this way, there is a clear basis for dealing with employees who violate their duties.

2.It is best to stipulate clear and feasible liabilities and penalties for breach of contract in the employment contract. Stipulating liability for breach of contract and punishment can not only play a warning role, but also become a powerful basis for making corresponding measures in the future, and there is no need to rely on the judge's discretion on the issue of liability for breach of contract in court, so as to provide necessary protection for the protection of the legitimate rights of the enterprise itself.

As for the liability for breach of contract, it mainly refers to the liability for breach of contract, and the enterprise and the employee can agree on the specific amount of compensation under various breach of contract circumstances; The punishment for employees who violate discipline can be warnings, demerits, deductions from wages, dismissal, etc. For the punishment of employees for disciplinary violations, it is not possible to stipulate in the labor contract that they are too detailed, and the provisions of the enterprise rules can be cited.

3.It is best to stipulate the conditions for the termination of the employment contract or the conditions for the unilateral termination of the employment contract by the enterprise. The conditions for the termination of the employment contract refer to the provisions stipulated in the employment contract that the employment contract will be terminated once certain reasons arise and the parties will no longer be bound by the employment contract; The conditions for unilateral termination of the labor contract by the enterprise are that it is stipulated in the labor contract that if the employee commits certain acts, the enterprise may unilaterally terminate the labor contract without paying severance or compensation.

However, it should be noted that the statutory circumstances under which severance is required for termination of an employment contract are not subject to severance are also stipulated in the employment contract and no severance is required. The advantage of stipulating the conditions for the termination of the labor contract or the unilateral termination of the labor contract by the enterprise is that once the agreed circumstances arise, the enterprise can no longer perform the labor contract without paying economic compensation.

The law does not clearly stipulate the specific term of the employment contract, but only considers that the term of the employment contract should not be too long.

In response to your questions, our lawyer provides the following answers:

1) Whether you want to pay compensation for terminating the contract depends first on whether you have agreed to be liable for breach of contract. The Labor Contract Law stipulates that the liability for breach of contract of an employee can only be agreed upon when the service period or non-compete clause is agreed. Since you have agreed on the service period, it is legal to agree on the liability for breach of contract, but it depends on whether the amount of liquidated damages is legal;

2) The company can only agree on the service period if you have been trained, and if there is no training, the service period cannot be agreed out of thin air. Therefore, the company gives you money to go to school, which is a kind of training fee, which can be regarded as a training fee. That is, the yuan paid by the company belongs to the training fee, and the salary of your internship period cannot be regarded as the training fee, the company says that the training fee is 5w, and there must be the corresponding invoice or evidence to substantiate, if it cannot be confirmed, it cannot be regarded as the training fee;

3) Then you terminate the contract now, you only need to pay you the training fee and the agreed service period, calculated on an annual average, how much should be a year, and the company should be compensated for the corresponding training expenses if you have not fulfilled the service period; For example, if the company pays you RMB, the service period is 6 years, and you have worked for one year, then you still have five years of service that have not been performed, you only need to compensate for the corresponding training expenses of these five years, and you should compensate the company's training fees and liquidated damages;

4) Regarding the issue of regression, the brother above has already explained it to you, so I won't say more.

1.There are only two circumstances in the contract that liquidated damages can be agreed, one is the training service period, and the other is the non-compete clause. Your contract falls under the first item.

2.However, when it comes to training fees, the company must provide invoices for training programs, and your salary expenses cannot be counted as training fees. That is to say, for the 5w training fee, the company must issue an invoice to prove that you have really received the training and the company has paid for the training.

It is common for companies to send you abroad to study, or companies to find domestic training institutions for you to participate in foreign language or technical training.

3.You must compensate for the commission fee. Because the commission training fee belongs to the targeted commission training, the company helps you subsidize part of the cost.

4.Decreasing year by year means that 5w divided by 6 years, each year is, if you work for one year, you resign and need compensation, if you work for two years, you resign need compensation. However, since the training fee company cannot produce an invoice, this clause is not valid.

Don't sign a service contract in the future.

5.If you resign now, you only need to pay the commission fee. 13,000 divided by 6 years, each year is, you have worked for 1 year and 7 months, you need to compensate approximately.

If you can't understand the Implementing Regulations of the Labor Contract Law, it is recommended to entrust a lawyer to handle it.

Only under two circumstances can the employer agree that the employee shall bear the liquidated damages: 1. The liquidated damages may be agreed in the agreement on the training service period; 2. Liquidated damages may be stipulated in the non-compete agreement.

If it is unreasonable, you can protect your rights and interests in accordance with the law.

You can communicate if you need to.

In accordance with the provisions of the Labor Contract Law, the company shall give you the file. If you lose money due to non-delivery, you shall be liable for compensation.

There is a conflict between real life and the law, as in this case of yours. The above are all rights that you can enjoy under the law, but there is also a cost to protecting rights (time cost, economic cost). So the law is not omnipotent.

Arbitration and litigation take time, taking Beijing as an example, some arbitrations need to wait 6 months from filing to filing. However, according to the Labor Dispute Mediation and Arbitration Law, if the labor arbitration case is not concluded within 60 days from the date of filing, the labor arbitration can be filed with the court. If you go to the court to file a case with the notice of filing a case given to you by the labor arbitration, it will generally be accepted.

However, it also takes time, and the summary procedure is generally 3 months, because labor dispute cases are generally relatively simple, so the court will first apply the summary procedure for trial, but if the judge has more cases in his hands and the trial time limit is approaching, he will transfer the case to the general procedure, and the ordinary procedure is generally 6 months. (All are counted from the date of filing).