Liang Shichen’s Supreme People’s Court Judicial Case Research Institute 2023-06-28 14:37 Published in Beijing
The labor rights of female employees during pregnancy are specially protected by law.The current laws and regulations have clearly stipulated the protection measures of labor intensity, wage remuneration, and labor contracts for female employees during pregnancy.In order to reduce the cost of employment, some employers have illegal acts that regulate post -post, salary reduction or unilateral labor relationship with female employees, and infringe on the legitimate rights and interests of female employees.This article takes six typical cases as an example to explain the special provisions of labor protection during the performance of female employees during pregnancy, in order to indicate the legitimate rights and interests of female employees during pregnancy.
Female employees cannot adapt to the original labor during pregnancy
Employers should reduce the amount of labor
Or arrange other labor that can adapt
In April 2019, Wang Meng entered the company Yikang Company. The two parties signed a three -year fixed -term labor contract. Wang Mengyue’s salary standard was 8,000 yuan.On August 31, 2020, Wang Mengjing checked to confirm pregnancy.On September 30, Yikang Company made and delivered to Wang Meng and delivered to the "Notice of Employees Staying", which stated: "Wang Meng, because of your physical condition during pregnancy, arrange youThe living expenses during the posting period are 1,000 yuan per month. The duration of the job shall be notified separately depending on your physical condition and the company’s business needs. "Wang Meng Yu replied on the day of the notice that he did not agree with the post and normal attendance.On February 17, 2021, Wang Meng applied for labor arbitration and asked Yikang Company to pay its wage difference from October 1, 2020 to January 31, 2021.Later, Wang Meng refused to accept the arbitration award and sued to the court.
The court held that Wang Mengjing’s medical institution inspected confirmed that pregnancy was confirmed.Without sufficient evidence to prove that Wang Meng could not adapt to the original labor, Yikang Company made a decision on Wang Meng’s decision on the grounds of pregnancy.Pay Wang Meng from October 1, 2020 to January 31, 2021, the salary difference is 28,000 yuan.
According to Article 58 of the Labor Law of the People’s Republic of China, the state implements special labor protection for female employees and minor workers.
According to Article 6, paragraph 1, paragraph 1 of the "Special Provisions of Women’s Workers’ Labor Protection", if a female employee cannot adapt to the original labor during pregnancy, the employer shall reduce the amount of labor or arrange other labor that can adapt according to the certificate of the medical institution.Therefore, the employer requires that it is illegal to require that the postal to be on the grounds of the female employee’s pregnancy is illegal, and the wage difference caused by the worker’s wage is loser, and the workers have the right to request the employer to pay.
Pregnant female employees during labor time
The required time should be included in the labor time
On June 1, 2021, Li Lei joined the Bayu Corporation as an accountant. The two parties signed a three -year labor contract with an agreed salary standard of 16,000 yuan per month.On October 9, Li Lei was inspected and confirmed to be pregnant.On the morning of October 12 and the morning of December 16, Li Lei went to the hospital for prenatal examination.Biomu company deducts the salary of Li Lei’s corresponding date in accordance with absenteeism.Li Lei applied for labor arbitration on January 6, 2022, and asked Baizu to pay the wage difference.Later, Li Lei refused to accept the results of the arbitration and complained to the court.
According to the court, the court believed that Biomu Corporation deducted the lack of facts and legal basis for the salary of employees during pregnancy, and finally judged that Baiyu company paid Li Lei’s salary difference of more than 700 yuan.
According to Article 6 of the Special Regulations for the Protection of Women’s Workers, the prenatal inspection of the female employees of pregnancy will be included in the labor time during labor time.Based on this, the employer cannot deduct the salary of the female employee during the production inspection of the female employee on the grounds of absenteeism, leave, and sick leave.
The employer must not be reduced unilaterally
Salary standards for female employees during pregnancy
On March 1, 2018, Wang Qiong joined the Vocational Literature Science and Technology Company as the manager of the product department, with a monthly salary standard of 18,000 yuan.On March 23, 2021, Wang Qiong’s report report showed pregnancy.On April 1, 2021, the liberal arts company issued a notice of transfer to him, informing Wang Qiong to adjust his position to the staff of the product department because of his pregnancy, and the salary standard was correspondingly reduced to 15,000 yuan per month.Wang Qiong replied in the form of email that he did not agree with the post -post salary reduction and normal attendance every day. The liberal arts company paid Wang Qiong’s salary from April to July 2021 in accordance with the standard of 15,000 yuan per month.Wang Qiong applied for labor arbitration on July 22, 2021, asking the liberal arts company to pay the salary difference from April 1, 2021 to June 30, 2021.Later, Wang Qiong refused to accept the arbitration award and sued to the court.
According to the court, in the case of the liberal arts company who did not reach an agreement with Wang Qiong, the liberal arts company transferred the salary reduction on the grounds of the female employee during the pregnancy, and lacked facts and legal basis.Essence
According to Article 35 of the Labor Contract Law of the People’s Republic of China, the employer can change the content stipulated in the labor contract agreed by negotiating with the workers.According to Article 5 of the "Special Regulations for Women’s Workers’ Labor Protection", employers shall not reduce their wages due to pregnancy, fertility, breastfeeding due to female employees, dismissal, and termination of labor contracts or hiring contracts.Based on this, the employer shall not unilaterally reduce its salary standards without negotiating with female employees during pregnancy.If the employer has a unilateral reduction in the illegal situation of wage standards, the female employees during pregnancy have the right to request the employer to pay the wage difference.Lift the economic compensation for labor contracts.
Those who have not participated in maternity insurance
Pay for female positions by employers
Medical expenses for fertility or abortion
On April 23, 2019, Huang Juan joined Dongbo as an accountant, and the two sides signed a labor contract from April 23, 2019 to April 22, 2020.During Huang Juan’s job, Dongbo Company did not pay social insurance for him.On April 12, 2020, Huang Juan gave birth to a child. Because the social security fund could not list Huang Juan’s medical expenses, fertility allowances and medical expenses during delivery, Huang Juan applied for labor arbitration on the grounds of asking Dongbo Company to pay the above expenses.Later, Huang Juan refused to accept the arbitration ruling to sue to the court.
The court heard that Dongbo did not pay the social insurance for Huang Juan during his job, which led to Huang Juan’s production inspection costs, maternity allowances, and medical expenses during the hospitalization period.Pen fee.She then judged that Dongbo Company paid 32,000 yuan in fertility allowances, and paid Huang Juan’s inspection costs and medical expenses during the hospitalization period of more than 18,000 yuan.
According to Article 8 of the "Special Regulations on the Protection of Women’s Workers", the maternity allowance during maternity leave during maternity leave, those who have already participated in maternity insurance shall be paid by the average monthly salary of employees in the previous annual employee;In terms of insurance, the employer is paid by the employer in accordance with the standard of pre -maternal leave.
The medical expenses of female employees’ maternity or abortion, in accordance with the projects and standards specified in maternity insurance, shall be paid by the maternity insurance funds who have participated in maternity insurance; those who have not participated in maternity insurance shall be paid by the employer.
The employer has a legal obligation to pay maternity insurance for female employees. In the case of illegal termination of the labor contract for female employees during pregnancy, the medical expenses that social insurance cannot be listed, and the medical expenses of fertility or miscarriage shall be borne by the employer.
Employers must not follow
"No more disliked dismissal" or
"Economic layoffs" are female employees during pregnancy
On April 1, 2019, Wang Li joined the Blue Sky Company as the sales department manager with a monthly salary standard of 14,800 yuan.On September 19, Wang Li told the company the fact that he was pregnant and asked a day of illness to go to the hospital for a birth checkup.On September 20, Blue Sky Company issued the "Notice of Labor Contract" to Wang Li in the form of email to relieve the labor contract with Wang Li on the grounds of major changes in objective conditions.Wang Li advocated that the Lan Sky Company was illegally lifted the labor contract and applied for labor arbitration on the grounds that she was applying for labor arbitration.Later, Wang Li refused to accept the arbitration award and claimed to the court to ask Lan Sky Company to pay his illegal lift of the labor contract compensation.
The court held that the female employees of Wang Li were in pregnancy. Blue Sky Company took a major changes in objective conditions and the lack of facts and legal basis for the termination of the labor contract. In the end, Blue Sky Pay Wang Li’s illegal termination of the labor contract compensation was 14,800 yuan.
According to Article 42 of the Labor Contract Law of the People’s Republic of China, if a worker has one of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Article 40 and 41 of this Law: …4) Female employees during pregnancy, delivery, breastfeeding …Therefore, during pregnancy, the employer shall not be a "dislocated dismissal" or "economic layoff" during pregnancy.Major changes in objective conditions generally refer to: (1) force majeure of natural disasters such as earthquakes, fires, and floods;) Major changes such as system; (3) The scope of the employer of the employer of the franchise business changes.Based on this, the pregnancy of female employees does not have a major change in objective conditions.
Labor contract period expires
The labor contract of female employees during pregnancy should continue
The employer must not terminate
Li Ming and Guangzhi Company signed a labor contract from March 19, 2017 to March 18, 2020. The two parties agreed to pay a monthly salary of 25,000 yuan.On March 11, 2020, Li Ming confirmed his pregnancy and informed Guangzhi Company to the fact of pregnancy.On March 15th, Guangzhi Company sent Li Ming to Li Ming’s "Notice of Termination of Labor Contracts" to inform Li Ming that because of his pregnancy, the labor contract was terminated on March 18, 2020, and he no longer renewed the visa.Li Ming applied for labor arbitration and requested the revocation of the "Notice of Termination of Labor Contracts" made by Guangzhi Company, and the two sides continued to perform the labor contract.The arbitration ruling supported Li Ming’s arbitration request.Guangzhi Company did not accept the arbitration award to the court to confirm that the labor relationship between the two parties was terminated on March 18, 2020.
After the court hearing, when Guangzhi Company issued a notice of termination of labor contracts to Li Ming, Li Ming was in pregnancy. The behavior obviously violated the law."Contract notice", the two sides continue to perform the labor contract.
According to Article 45 of the Labor Contract Law of the People’s Republic of China, if the labor contract period expires, if there is one of the situation stipulated in Article 42 of the Law, the labor contract shall continue until the corresponding situation disappears.Therefore, in the pregnancy, the employees shall not terminate the labor contract with them, and it shall continue until the end of pregnancy, yield, and lactation.
If the employer issues notifications to the female employee during pregnancy, the worker has the right to request the cancellation of the termination of the labor contract notice made by the employer, continue to fulfill the labor contract, or request the employer to pay illegal termination of the labor contract compensation.
In addition to the female employee rights protection measures mentioned in the above cases, the Special Regulations for the Protection of Female Workers’ Labor also stipulates that employers shall not extend their working hours or arrange night shift labor for female employees who are more than 7 months pregnant.Arrange a certain rest time within time.If a female employee is pregnant, you can enjoy the corresponding number of maternity leave days.
The protection of female employees during pregnancy is not only related to the protection of female workers’ personal rights and interests, but also related to the stability of enterprise employment order and the protection of women’s rights and interests.To this end, employers should actively bear social responsibility to protect the legitimate rights and interests of female employees during pregnancy.Female employees should also strengthen the study of laws and regulations. When their own interests are damaged, they can actively use legal weapons to protect their legitimate rights and interests.
(Both workers and single -player names in the text are all known as the name)
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