"You just study with the class, you shouldn't be paid." Recently, Ms. Wen from Gansu encountered such an embarrassment. She tried out a job in a teaching and training institution for a week, undertaking auxiliary teaching and classroom tidying up every day, but was fired due to "lack of teaching experience" and did not receive any labor remuneration.

At the same time, Xiao Lin, a hearing-impaired person in Qingdao, was fired by the company after working for a construction company for several months on the grounds that "the two-month probationary contract has expired". The person in charge of the enterprise believes that after the expiration of the probationary contract, the two parties no longer have any relationship, trying to achieve the purpose of using labor free of charge.

The above cases are not unique. In the current job market, the phenomenon of "variant probationary period" is quietly spreading. Some companies require job seekers to "try out jobs without pay" in the name of "probationary period" and "probationary period", or dismiss employees for vague reasons at the end of the probationary period, and then re-recruit, forming a model of recycling cheap labor. This article will systematically sort out the common misunderstandings, statutory red lines and compliance suggestions of probationary employment from the perspective of legal regulation.

1. Common misunderstandings and legal characterization of probationary employment

(1) Determination of labor relations for "unpaid trial posts"

Some enterprises set up a "trial period" of 3 to 10 days when recruiting, and dismissed workers on the grounds of "lack of experience" and "mismatch between personnel and positions" near the end, and refused to pay wages during the trial period. When workers protect their rights, they often face the problem of proving labor relations because they have not signed a labor contract.

It should be clear that according to Article 7 of the Labor Contract Law, the employer establishes a labor relationship with the employee from the date of employment。 Regardless of whether the form of employment is called "trial post" or "trainee", as long as there is actual employment behavior, it constitutes a de facto labor relationship, and the employer must pay labor remuneration in accordance with the law. Wang Ting, director of the Human Resources Development and Management Research Center of the Business School of China University of Political Science and Law, pointed out that behind the phenomenon of "unpaid trial posts" is the imbalance between supply and demand in the labor market, and some enterprises take advantage of the current situation of weak bargaining power of workers to obtain free labor.

(2) Determination of the validity of the probationary period contract in lieu of the labor contract

In practice, some enterprises use "probationary contracts" instead of formal labor contracts to try to avoid legal obligations during the existence of labor relations. The Qingdao Xiaolin case is a typical example. Shi Weichen, the lawyer in charge, pointed out that the company's legal awareness was weak and mistakenly believed that the probationary contract would be terminated naturally upon expiration. However, Article 19, paragraph 4 of the Labor Contract Law clearly stipulates: "The probationary period is included in the term of the labor contract." If the labor contract only stipulates a probationary period, the probationary period shall not be established, and the period shall be the term of the labor contract. Accordingly, a probationary period contract signed separately is legally regarded as a formal labor contract, and the probationary period agreement itself is not established.

(3) The legal boundary of the second agreement on the probationary period

The "Labor Dispute Case of an Education Company v. Wang Mouhua" included in the case database of the Supreme People's Court clearly states that if an employer extends the probationary period within the statutory maximum probationary period, it is a second agreed probationary period, which is prohibited by law. Regardless of whether the probationary period is agreed upon again by job change, consensus or re-entry after resignation, it constitutes an illegality.

2. Statutory red line for probationary period

For businesses, the probationary period is not illegal. The law clearly stipulates the duration of the probationary period, wages, and signing contracts.

(1) The length of the probationary period cannot be determined arbitrarily

According to the provisions of the Labor Contract Law, the maximum probationary period shall not exceed 6 months, and the length of the probationary period shall be linked to the term of the labor contract:

• If the labor contract period is more than three months but less than one year, the probationary period shall not exceed one month;
• if the labor contract period is more than one year but less than three years, the probationary period shall not exceed two months;
• For labor contracts with a fixed term of more than three years and without a fixed term, the probationary period shall not exceed six months.

If the labor contract is limited to the completion of certain work tasks or the term of the labor contract is less than three months, the probationary period shall not be agreed. The same employer and the same worker can only agree on a probationary period once.

(2) It is illegal to sign a probationary contract separately

Article 19, paragraph 4 of the Labor Contract Law clearly stipulates that "the probationary period is included in the term of the labor contract." If the labor contract only stipulates a probationary period, the probationary period shall not be established, and the period shall be the term of the labor contract. ”

In the case of Qingdao Xiaolin, lawyer Shi Weichen pointed out: "The legal awareness of the enterprise is very weak, and it is simply believed that the contract for the probationary period has been signed, and the contract is not renewed or the formal contract is equivalent to natural termination." According to the provisions of the Labor Contract Law, the probationary period contract should not exist separately, if the two parties agree on the probationary period, the probationary period is an important part of the labor contract, and the two are not parallel. ”

(3) The salary during the probationary period shall not be less than "two 80%"

According to Article 20 of the Labor Contract Law, the wages of workers during the probationary period shall not be less than 80% of the minimum wages of the same position in the unit, and shall not be less than 80% of the wages agreed in the labor contractIt shall not be lower than the minimum wage standard of the employer's location.

For "unpaid trial work", according to the provisions of the Labor Contract Law, the employer establishes a labor relationship with the employee from the date of employment, whether in the name of a trial job or in other forms, as long as there is employment behavior, the employer has established a labor relationship with the employee and should pay labor remuneration to the employee.

(4) Social security must be paid during the probationary period

Article 58 of the Social Insurance Law stipulates that an employer shall apply for social insurance registration for its employees to the social insurance agency within 30 days from the date of employment. Social security payment is the legal obligation of employers, and there is no distinction between "probationary employees" and "regular employees". Even during the probationary period, the employer cannot fail to pay social security premiums if the employer agrees with the employee.

3. Statutory requirements for termination of labor contract during probationary period

(1) The legal basis for termination and the burden of proof

Article 39 of the Labor Contract Law stipulates that if an employee is proven to not meet the employment conditions during the probationary period, the employer may terminate the labor contract. Here, "proved" is the core element of the employer's termination behavior. Article 44 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases (I) stipulates that the employer bears the burden of proof for labor disputes arising from the termination of labor contracts.

In a case heard by the Jinzhou People's Court of the Ningxiang Municipal People's Court of Hunan Province, a company terminated the labor contract on the grounds that "the work performance did not meet the job requirements" at the end of Li's probationary period. In the lawsuit, the entry documents submitted by the company did not specify the employment conditions, and there was no evidence to prove that Li had been informed in writing of the job requirements, let alone assessment, conversation, training and other materials to prove that he could not meet the job requirements. The court finally ruled that the company should pay Li 14,800 yuan in compensation.

(2) Three necessary conditions for legal termination

According to comprehensive judicial practice, an employer must meet the following three conditions when terminating a labor contract on the grounds of "not meeting the employment conditions":

First, the employment conditions are clear and specific. Employment conditions should be quantifiable, objectively judgeable and reasonable. The employer should inform employees in writing of their job responsibilities and assessment standards, including performance indicators, skill requirements, attendance discipline, etc.

Second, the assessment evidence is sufficient and objective. The employer must provide objective evidence to prove that the employee has not met the standards, such as performance appraisal forms, work records, training records, etc., and such evidence should form a complete chain of evidence.

Third, the procedures are legal and compliant. The employment conditions must be clearly informed to the employee through the labor contract, job description, etc., the assessment must be completed during the probationary period, and the termination notice must be delivered before the expiration of the probationary period.

4. Legal consequences of illegally agreeing on a probationary period

Once an enterprise is found to have violated the law of circumventing labor relations, what legal consequences will it bear?

(1) The cost of paying compensation far exceeds expectations

Article 83 of the Labor Contract Law stipulates that "if an employer violates the provisions of this Law and agrees on a probationary period with an employee, the labor administrative department shall order corrections; If the illegally agreed probationary period has been fulfilled, the employer shall pay compensation to the employee based on the employee's monthly salary after the probationary period, and according to the period that has been performed beyond the statutory probationary period. ”

For example, Employer A signed a two-year labor contract with Employee B, agreeing that the probationary period would be 4 months and that it had been completed. The monthly salary of employee B after the expiration of the probationary period is 6,000 yuan.

According to the law, the maximum probationary period of a two-year labor contract shall not exceed 2 months, and the part of the probationary period agreed by employer A beyond the two months agreed by the statutory standard is an illegal probationary period. Therefore, in addition to paying wages to Employee B at the standard of 6,000 yuan/month from the third month, Employer A also needs to pay compensation of 12,000 yuan to Employee B based on the monthly salary of Employee B after the probationary period of 6,000 yuan after the probationary period has been fulfilled (i.e., 2 months).

(2) If the labor contract is not signed, double the salary shall be paid

If the employer only signs a probationary contract and the probationary period is not established, the period shall be regarded as the term of the labor contract. If the labor contract is not signed after the end of the probationary period, the employee may claim twice the wage difference of the unsigned labor contract from the day after the expiration of one month from the date of employment, and can claim for up to eleven months.

In the case of Beijing Qian, the company only signed a probationary contract with Qian, and the court found that the probationary period was not established, and the contract was a labor contract. After the probationary period, the two parties did not sign a contract, and the court ordered the company to pay twice the salary difference.

(3) Administrative responsibility and reputational impact

In addition to paying compensation, the employer may also be ordered by the labor administrative department to correct illegal employment practices. Public information on labor arbitration and judicial judgments will have a negative impact on the reputation of employers, reduce the trust of job seekers, and affect talent recruitment and long-term development of enterprises.

5. Compliance suggestions for enterprise probationary period management

The probationary period is an important stage in the early stage of the establishment of labor relations, and it is also a window period for employers and workers to evaluate each other and make two-way choices. Using probationary period management as a "compliance entrance" not only helps to improve recruitment efficiency, but also effectively avoids subsequent employment disputes.

(1) Clarification and publicity procedures for recruitment conditions

If the employer wants to terminate the labor contract because it does not meet the employment conditions, it should first clarify what the employment conditions are. The setting of employment conditions shall be clear, unambiguous, legal and reasonable.

More importantly, the employment conditions should be publicized so that workers are aware of them. In order to retain the evidence of publicity, it is recommended that the employer sign the job description to prove that the employee is aware of the employment conditions, and the new employee needs to sign to confirm the employment conditions.

There are several methods of publicity:

1. When recruiting employees, clearly state the employment conditions to them and require them to sign and confirm.
2. Before the establishment of the labor relationship, clearly state the employment conditions to the employee by sending an employment letter and require them to sign and confirm;
3. The employment conditions are clearly stipulated in the labor contract or the employment conditions are not met;
4. The rules and regulations stipulate the employment conditions in detail, and publicize the rules and regulations before the signing of the labor contract.

(2) The improvement of the assessment system and the traces of the process

Employers terminate labor contracts on the grounds that they do not meet the employment conditions, which is often linked to some assessment results during the probationary period. In practice, employers are often found to have illegally terminated labor contracts due to the lack of clear assessment standards.

It is recommended that the employer formulate specific and accurate assessment methods and standards, record the assessment results, and publicize them, so that the assessment results are reasonable, objective and fair. Once the employee fails the assessment, the employer can terminate the labor contract with him.

(3) Prudential handling of the probationary period of second-time employees

Regarding the question of whether the probationary period can be agreed upon for the re-entry of departing personnel, there is no relatively definite adjudication standard. When the court determines similar issues, the most important factors to consider are time and position.

• Time refers to the interval between two labor relationships. For those who re-enter the company after a long period of resignation, such as an interval of two or three years, it is easier to obtain court support for re-agreeing on a probationary period; If you rejoin the company after a short resignation period, there is a risk that the agreed probationary period will be found to constitute an illegal probationary period.
• Position refers to whether the positions entered twice before and after are similar or the same. If the interval is short and the positions before and after are consistent or similar, the reasonableness and legality of the probationary period are not appropriate.

For employees who rejoin the company after leaving the company, if there is an interval of more than two or three years, the probationary period can be re-agreed, but it is necessary to briefly describe the reasons for agreeing on the probationary period in the labor contract and other necessary texts. If the interval is short, it is not recommended to re-agree on the probationary period.

6. Guidelines for the retention of evidence and protection of workers' rights

Workers during the probationary period often face difficulties in providing evidence. The lawyer suggested that workers should take the initiative to retain relevant evidence, including but not limited to: recruitment information, employment notices, labor contracts, work records, attendance records, wage payment vouchers, communication records (WeChat, text messages, emails), audio and video recordings, etc. For disguised employment behaviors such as "unpaid trial work", workers can protect their rights and interests through labor arbitration, labor inspection and complaints.

The case of Ms. Ren in Beijing is of reference significance. After joining the company, he found that the company had set up a 5-day "unpaid trial period", so he took the initiative to collect evidence such as screenshots of work and recordings of tasks assigned by the leader. When he was dismissed on the last day of the trial job, he presented evidence and said that he would protect his rights through labor arbitration, and finally received a salary of 600 yuan during the trial period.

Epilogue

The probationary period is an important stage for both parties to establish a long-term and stable labor relationship. However, some enterprises alienate the probationary period as a tool to evade employment responsibilities, reduce labor costs, and exploit workers, which not only seriously infringes on the legitimate rights and interests of workers, but also brings huge legal risks and reputational losses to enterprises.

The probationary period is not a "wasted period", let alone an "exemption period" for the employer. Building harmonious labor relations requires the joint efforts of both parties. Employers shall establish and improve a standardized employment system, and take probationary period management as a "compliance entrance"; Workers should also improve their legal awareness and learn to protect their legitimate rights and interests.