Protection of the workplace rights and interests of female employees
May 14, 2023 is Mother's Day. According to a news from China News Network, an employee of a company in Shenzhen shared on social platforms that he had an extra day off during the week of Mother's Day, and the company also prepared gifts for each mother. The company said in an interview: We are growing up and our mother is getting old day by day, and the company hopes that each colleague will spend more time with her.
The company's extra holiday for Mother's Day reflects its care for female employees. However, in practice, female employees also encounter unfair treatment in the workplace. This article combines the laws and regulations on the protection of female employees and discusses the protection of female employees' workplace rights and interests in case.
First, enterprises shall not discriminate against female employees in recruitment.
A restaurant posted a recruitment advertisement to the outside world, making it clear: Recruiting kitchen apprentices, male, down-to-earth and hard-working, serious and responsible. Female employee Liang obtained the third-level professional qualification certificate of Chinese cookery, applied to the restaurant and filled in the interview application form, but the restaurant did not interview him. The restaurant staff said: "Kitchen apprentices do not want women, there are no women workers in the kitchen".
The hotel rejected the female employee Liang's request for an interview, and later Liang sued the court according to law. The court held that the hotel made distinctions, exclusions or restrictions on job seekers based on gender when recruiting jobs, depriving job seekers of equal employment opportunities and hindering the realization of job seekers' employment rights, which constituted gender discrimination in employment discrimination.
The hotel's refusal to grant Liang an equal opportunity for an interview has constituted a discriminatory treatment and exclusion of female applicants, violated Liang's right to equal employment, and constituted gender discrimination against Liang. In violation of the law, Liang should be publicly apologized and compensated for the moral damage of 2,0
00yuan.
Article 12 of the Labor Law of the People's Republic of China stipulates that laborers shall not be discriminated against in employment on the basis of gender. Article 13 stipulates that women enjoy equal employment rights with men. Article 27 of the Employment Promotion Law of the People's Republic of China stipulates that the state guarantees that women enjoy equal labor rights with men.
When recruiting, an enterprise shall not discriminate against women on the basis of sex and violate their right to equal employment, except in the appendices to the Special Provisions on Labor Protection of Female Employees, which are prohibited for female employees. Otherwise, the enterprise shall bear the corresponding legal responsibility and compensate the female employees for the corresponding mental damage.
Second, enterprises shall not arbitrarily transfer third-term female employees.
Because of pregnancy, female employee Li was adjusted from the management post of the director to the post of a member of the company, in order to reduce Li's post salary, resulting in a reduction of nearly 50% in Li's salary. Li refused to accept the application for labor arbitration according to law, requesting confirmation that the transfer was illegal, and asked the enterprise to make up the wage difference. After trial, the Labor Arbitration Commission found that the transfer of the enterprise was illegal, and it should make up the wage difference of female employee Li.
Article 26 of the employment contract law of the People's Republic of China stipulates that the following employment contracts are invalid or partially invalid: (2) The employer exempts itself from its statutory responsibilities and excludes the rights of workers. It is illegal for an enterprise to arbitrarily adjust the positions of female employees in the third period, exclude the legal rights of female employees, and exempt the enterprise from the legal responsibility for the protection of female employees.
In practice, the legal transfer requirements of enterprises require enterprises to negotiate with female employees, and the transfer requirements are not insulting or punitive. Female employees can be qualified for new jobs after the transfer or arrange job training for new positions, and the wages of female employees have not been significantly reduced.
III. Enterprises shall not arbitrarily reduce the salaries of female employees in the third term.
Due to pregnancy, female employees were transferred from the first-line laboratory by the enterprise to engage in clerical work, and their wages were reduced; or due to pregnancy, the enterprise considered that part of the original work content of female employees could not be completed, so their wages were reduced; or female employees were reduced during maternity leave because of maternity leave; or the enterprise did not negotiate with female employees, and the enterprise unilaterally decided to reduce the wages of female employees, etc., which are all illegal acts.
Article 5 of the Special Provisions on the Labor Protection of Female Employees stipulates that employers shall not reduce the wages of female employees due to pregnancy, childbirth or breastfeeding. Article 95 of the Labor Law of the People's Republic of China stipulates that if an employer violates the protection provisions of this Law for female employees and infringes on their legitimate rights and interests, the labor administrative department shall order it to make corrections and impose a fine.
Enterprises reduce the wages of female employees on the grounds that the work of female employees in the third period is not up to standard, etc. If they violate the regulations on not reducing the wages of female employees in the third period, they will face administrative penalties by the labor administrative department, as well as civil liability to make up the difference in the wages of female employees.
In practice, some enterprises grant female employees leave for maternity check-ups, but deduct wages according to sick leave or limit the number of maternity check-ups for female employees. Article 6 of the "Special Provisions on Labor Protection of Female Employees" stipulates that pregnant female employees undergo prenatal check-ups during working hours, and the time required is counted as working time.
The above regulations make it clear that the maternity check-up time of female employees is included in the working hours and is regarded as normal attendance. Enterprises have no right to deduct the wages of pregnant female employees, nor can they deduct the wages of pregnant female employees according to sick leave, nor can they limit the number of maternity check-ups for female employees.
Enterprises shall not illegally terminate the employment contract of female employees.
After a female employee enters the job, she is dismissed by the enterprise on the grounds that the probation period does not meet the employment conditions because of her pregnancy; or as soon as the female employee is found to be pregnant, the enterprise will persuade her to quit; or after the expiration of maternity leave, the female employee returns to work, and the enterprise refuses the female employee to return to work on the grounds that other employees have already worked in the original position, or to persuade her to quit, these are illegal acts.
Article 5 of the Special Provisions on the Labor Protection of Female Employees stipulates that an employer shall not dismiss a female employee or terminate her labor or employment contract because of her pregnancy, childbirth, or breastfeeding. Article 42 of the Employment Contract Law of the People's Republic of China stipulates that an employer shall not terminate an employment contract in accordance with the provisions of Articles 40 and 41 of this Law if a worker falls under any of the following circumstances: (4) A female employee is pregnant, giving birth, or breastfeeding.
Article 45: Where an employment contract expires under any of the circumstances specified in Article 42 of this Law, the employment contract shall be renewed and terminated until the corresponding circumstances disappear. The third-term employment contract of female employees shall naturally be postponed until the end of the breastfeeding period, while the enterprise shall provide female employees with the guarantee of the performance of the employment contract and the special labor protection of the third-term female employees.
After a female employee is illegally terminated by an enterprise, she has the right to apply for labor arbitration, request the enterprise to continue to perform the employment contract, restore labor relations, and may require the enterprise to pay wages during the period of illegal termination; or request the enterprise to pay compensation for illegal termination.
Fifth, it is not allowed to make up labor relations and defraud social security benefits.
The Social Insurance Law of the People's Republic of China stipulates that the payment of social insurance requires a real labor relationship between an enterprise and its employees. The Provisions on Maternity Insurance for Employees in Guangdong Province stipulate that maternity insurance benefits include maternity medical expenses and maternity allowances, and the required funds are paid from the employees' basic medical insurance pooling fund. Employees enjoy maternity allowances in accordance with regulations.
In order to earn improper benefits, some enterprises recruit three female employees to pay social insurance, create a false labor relationship with female employees, and pay maternity insurance in the name of female employees. The purpose is to defraud the state maternity insurance benefits, and defraud maternity medical expenses and maternity allowances. After the enterprise defrauds the relevant treatment, it divides it with the female employees. The relevant personnel of the enterprise and the female employees constitute a joint crime of fraud.
In practice, the court has handed down many similar cases.
If a female employee makes up a fictitious labor relationship, relies on the enterprise to pay maternity insurance, or deliberately inflates or falsely reports the salary base to pay social insurance, and defrauds the insurance fund to pay maternity insurance benefits, it is illegal, and if the circumstances are serious, it constitutes the crime of fraud.
concluding remarks
Protecting the legitimate rights and interests of female employees is not only an important part of building harmonious labor relations, but also an important means to promote equality between men and women and build a harmonious society. Enterprises are obliged to protect the legitimate rights and interests of female employees and fulfill social responsibilities. Female employees can take up legal weapons to safeguard their legitimate rights and interests when their legitimate rights and interests are damaged in the workplace. Legal services, professional lawyers are by your side to escort.
About the Author
Mu Qing
Zhiheng Law Firm
He is a practicing lawyer of Guangdong
, deputy secretary-general of the Labor and Social Security Law Professional Committee of Guangdong Bar Association, and a member of the Financial Crime Defense Law Professional Committee of Shenzhen Bar Association. He is engaged in corporate human resources compliance legal services, labor dispute legal services, and criminal defense legal services.
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Zhiheng Law Firm
Paralegal of Guangdong
, Bachelor of Laws from Zhuhai College of Beijing Institute of Technology, engaged in civil and commercial legal services such as corporate compliance, equity disputes, creditor's rights and debt disputes, marriage and family disputes.