After the Spring Festival, it has reached the peak period of enterprise recruitment and worker career choice, and Lu Heng hopes to use this article to remind employers how to choose their favorite business partners in recruitment in compliance and legally.

Employee recruitment is the first step in enterprise employment management, and the risks in the recruitment process are also the most easily overlooked by enterprises. Many companies think that it is not just about recruiting, publishing recruitment advertisements, and hiring suitable candidates, what risks can there be! In fact, in practice, many enterprises do not pay attention to the risk prevention and control in the recruitment process, resulting in labor disputes in the later stage, causing enterprises to suffer a lot of losses.

This paper intends to analyze the main legal risks existing in the recruitment process of enterprises and put forward corresponding prevention suggestions to improve the risk awareness of some enterprise leaders in this regard and promote the compliance operation of enterprises.

1. There is a risk of discrimination in the content of recruitment advertisements

Article 12 of the Labor Law of the People's Republic of China stipulates: "Workers shall not be discriminated against in employment on the basis of different ethnicity, race, gender, or religious beliefs." Article 26 of the Employment Promotion Law of the People's Republic of China stipulates: "Employers recruiting personnel and employment agencies engaged in employment intermediary activities shall provide equal employment opportunities and fair employment conditions to workers, and shall not engage in employment discrimination." However, in real life, many companies publish job advertisements that contain discriminatory content in terms of height, gender, region, appearance, education, disease, etc., which may eventually affect the company's reputation and even lead to lawsuits.

Risk reminder: Employment discrimination not only violates the law, but may also attract public attention and damage the brand image of the enterprise. In recent years, it is not uncommon to be administratively punished or prosecuted for recruitment discrimination.

Compliance advice: In view of the above risks, it is recommended that enterprises try to standardize the language when publishing recruitment advertisements, express it carefully, and do not list discriminatory content such as only a certain ethnic group or only recruiting men/women or limiting age in recruitment information, except for the special requirements of the nature of the position; At the same time, the wording should be slowed down as much as possible, and words such as "priority" and "merit" should be used.

2. The risk of unclear employment conditions

Article 39 of the Labor Contract Law of the People's Republic of China stipulates that if an employee is proven to not meet the employment conditions during the probationary period, the employer may terminate the labor contract. In practice, some enterprises do not stipulate or agree on the specific employment conditions of employees to be hired when recruiting personnel, and the company does not formulate corresponding internal normative documents such as job descriptions.

Risk reminder: Employment conditions are the basis of probationary period management and the only basis for judging whether employees "do not meet the employment conditions". If the employment conditions are vague, the enterprise will face the risk of illegal termination of the labor contract during the probationary period and need to pay compensation.

Compliance advice: In response to the above risks, it is recommended that the unit must clarify the recruitment conditions of the position in the specific recruitment advertisement, and confirm and explain with the employees to ensure that they have evidence to rely on and take the initiative in their own hands. The employment conditions can be refined into: academic certificates, qualification certificates, work experience, performance indicators, attendance requirements and other quantifiable and verifiable standards, which shall be signed and confirmed by employees.

3. The risk of insufficient entry review

Article 99 of the Labor Law of the People's Republic of China stipulates: "If an employer recruits a worker who has not yet terminated the labor contract and causes economic losses to the original employer, the employer shall be jointly and severally liable for compensation in accordance with the law." At the same time, Article 91 of the Labor Contract Law of the People's Republic of China stipulates: "If an employer recruits a worker who has not yet terminated or terminated a labor contract with another employer and causes losses to other employers, it shall be jointly and severally liable for compensation." Therefore, when employees join the company, in addition to verifying the basic identity information and health status of employees, it is also necessary to pay attention to whether the labor relationship with the original unit is terminated, and verify and confirm whether they have signed a non-compete or confidentiality agreement.

Risk reminder: Recruiting employees who have not terminated labor relations may face joint and several liability. If an employee joins the company in violation of the non-compete agreement, the newly hired company may also be held liable for joint tort after the original employer sues.

Compliance advice: In view of the above risks, it is recommended that enterprises must require workers with work experience to provide a labor relationship termination certificate issued by the previous unit when recruiting workers with work experience. If it cannot be provided, it is necessary to ask the person to make a written statement or commitment to terminate the labor relationship with the original unit. For some important positions or important technical personnel, they can verify with their original units to confirm whether there is a non-compete.

4. The risk of enterprises failing to fulfill their notification obligations

Article 8 of the Labor Contract Law of the People's Republic of China stipulates: "When recruiting workers, employers shall truthfully inform workers of their work content, working conditions, work location, occupational hazards, safety production status, labor remuneration, and other information that workers require to know; The employer has the right to know the basic information directly related to the labor contract, and the employee should truthfully explain it. "For the content, working environment, work location, etc. of the worker's upcoming work, if the enterprise does not truthfully inform the employee during the recruitment process, and a dispute arises later, the employee can request the termination of the labor contract on this grounds and require the enterprise to pay economic compensation or compensation.

Risk reminder: Failure to fulfill the notification obligation may lead to workers claiming invalidation or termination of the contract on the grounds of "fraud" or "failure to provide agreed working conditions", and the enterprise will not only face compensation, but also may affect employment stability.

Compliance advice: In view of the above risks, it is recommended that enterprises can inform workers of their main work content, working conditions, work location, labor remuneration and other basic information such as their main work content, working conditions, work location, labor remuneration and other forms in the recruitment process, and ask them to sign and confirm, and archive the above-mentioned "Notification Letter" to prevent risks.

5. The risk of not signing the labor contract in time

Article 82 of the Labor Contract Law of the People's Republic of China stipulates: "If an employer fails to sign a written labor contract with an employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly salary." From the above provisions, it can be seen that if an enterprise fails to sign a labor contract with an employee in a timely manner after establishing a labor relationship, it may face the problem of paying double wages.

Risk reminder: If the contract is not signed for more than one month, the enterprise needs to pay double wages; If it is not signed for one year, it is deemed that an indefinite term labor contract has been concluded. Enterprises not only face economic costs, but also lose the flexibility to terminate contracts.

Compliance advice: In response to the above risks, it is recommended that if the company confirms the recruitment of the worker during the recruitment process, it must ensure that a written labor contract is signed with the worker within one month from the date of employment, and a copy is kept for each of them. The signing of the labor contract can be used as a mandatory endpoint of the onboarding process, which can be completed simultaneously with employment or in advance.

Epilogue

As an enterprise manager in the process of employee management, we must continuously strengthen our own risk awareness, and establish and improve internal processes and systems to effectively prevent possible risks in the employment process. Risk prevention and control in the recruitment and onboarding process is the first gateway and the most important line of defense for enterprise employment compliance. Only by checking from the source can we lay a solid foundation for subsequent employment management and avoid "small oversights" from turning into "big disputes".