The employee has the right to ask the company to pay the wage difference!

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 such as waiting, transferring jobs, salary reduction or unilateral lifting of labor relations on pregnant female employees, and infringe on the legitimate rights and interests of female employees.

【Basic Case】

On April 25, 2017, Ms. Wei joined a company.

On May 8, 2017, the company (Party A) and Ms. Wei (Party B) signed the Labor Contract Book, which stipulated that this contract was a labor contract for a fixed period.This contract came into effect on April 25, 2017. The trial period was on July 24, 2017, and the contract ended on April 24, 2020.Before the 10th of each month, pay Party B’s salary in the form of currency. Party B salary of 15,000 yuan (before tax), and the trial period is 12,000 yuan/month (before tax).On the same day, Ms. Wei signed in the company’s "Receiving Salary Confirmation Form".Monthly calculated, fixed salary of last month on the 10th of each month; rice supplement: 20 yuan/day of attendance days.The monthly salary income of the monthly month is 15,000 yuan/month, that is, the basic salary is 10,000 yuan/month, and the job allowance is 5,000 yuan/month. Based on 12 months, the salary of the last month on the 10th of the month;God and other content.

On July 25, 2017, Ms. Wei expired, and should be righteous on schedule.

On August 31, 2017, Ms. Wei was inspected by the hospital to confirm 6 weeks and 2 days pregnant.

On September 30, 2017, the company made a written "Notice of Employees Standing in the job" and mail to Ms. Wei. The content is: Ms. Wei, according to the physical condition of your current pregnancy.Starting to work on October 1st, the company has paid you various social insurance for you normally during the posting period, and pays your living expenses in accordance with the Labor Law and the "Municipal Wage Payment Regulations".The duration of the job as depends on your physical condition and the company’s business needs to notify you to return to the job. Please pay attention to checking the company’s separate notice in time.The company claims that Ms. Wei work until September 30, 2017, while Ms. Wei said her work until October 11, 2017.

On November 9, 2017, the company paid Ms. Wei in October 2017 to pay 1,400 yuan in October 2017.

In order to prove that it no longer has production capacity, no longer operates, and does not have the conditions to restore labor relationships, it submits a "House Leasing Lift Agreement", which records the company’s lease × house."House Leasing Agreement".The date between the two parties signed the "House Leasing Lift Agreement" was January 12, 2018.Ms. Wei said that she could not verify and it was unclear the authenticity of the "House Leasing Lift Agreement".

Due to the incurring salary dispute, Ms. Wei applied to the Arbitration Commission for arbitration, asking the company to revoke the decision to wait for the job and pay the salary in October 2017 (other matters will not be discussed here).On January 18, 2018, the Arbitration Commission made a ruling and decided: 1. Within seven days from the date of effectiveness of the ruling book, the company’s decision on the job of Ms. Wei was canceled;Ms. Wei pays 13,600 yuan in October 2017.

The company did not accept it and sued to the court.

【As an example】

Court of first instance: When there is no evidence to prove that female employees cannot adapt to the original labor, they make a decision on the grounds of pregnancy.

The court believes that Article 58 of the Labor Law of the People’s Republic of China stipulates that the state implements special labor protection for female employees and minor workers.Article 5 of the "Special Regulations for Women’s Workers’ Labor Protection" stipulates that the employer shall not reduce their wages due to pregnancy, fertility, breastfeeding due to female employees, dismiss the labor or hire contracts;If the original labor cannot be adapted, the employer shall reduce the amount of labor or arrange other labor that can adapt in accordance with the proof of medical institutions.

In this case, Ms. Wei was confirmed to be pregnant by medical institutions on August 31, 2017.Without sufficient evidence to prove that Ms. Wei could not adapt to the original labor, the company made a decision on Ms. Wei on the grounds of Ms. Wei on the grounds of Ms. Wei on the grounds of Ms. Wei’s pregnancy on September 30, 2017, and she did not comply with legal provisions.The company submits the "House Leasing Lift Agreement" to prove that its company no longer operates, but the housing leasing situation is not exactly the same as the company’s operating situation. The signing date of the "House Leasing Lift Agreement" is later than the company.The date of decision, therefore, the "House Leasing Lift Agreement" is not directly related to the decision to make a decision to Ms. Wei.Ms. Wei applied for a decision to be canceled during the labor arbitration stage, and the Arbitration Commission supported Ms. Wei’s arbitration request.The current company sued the request to confirm that the notice of the job is valid in accordance with the law, lacks facts and legal basis, and does not support it.The "Notice of Employees Standing for Employees" made by Ms. Wei on September 30, 2017 should be revoked.

Wages shall be paid to the workers in the form of currency.Do not deduct or do the wages of workers for no reason.Under the premise that the company should be revoked to Ms. Wei, the company must not reduce Ms. Wei’s salary standards.In October 2017, the company only paid 1400 yuan to Ms. Wei, and the company should make up for Ms. Wei’s salary of the month in accordance with the wage standard of 15,000 yuan a month before the tax.Therefore, the company’s request judgment does not need to pay Ms. Wei in October 2017, the salary difference of 13,600 yuan, and it is not supported.

Second instance court: The decision to make a job on the job on the grounds that the company cannot operate, does not comply with the laws and regulations

The court believes that Ms. Wei was confirmed to confirm pregnancy by the medical institution on August 31, 2017. The company made a decision on Ms. Wei on the grounds that the company was unable to operate.EssenceThe company’s appeal request to confirm that the notice of the job is effectively lacking facts and legal basis in accordance with the law, and the court does not support it.

The salary shall pay the workers on a monthly basis. They must not be deducted or arrears of the wages of the workers. The current company only pays Ms. Wei in October 2017 salary of 1,400 yuan and has not paid in full.The standard will make up for Ms. Wei’s salary that month.Therefore, the court did not support Ms. Wei in October 2017 without paying the company’s request. The court did not support it.

【Xiaobian has something】

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 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.

In addition to waiting for jobs, the employer may still have the following illegal acts:

1. Missing salary!

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.

2. Single reduction of the salary standards of female employees during pregnancy!

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.

3. Failure to participate in maternity insurance leads to unable to enjoy maternity insurance!

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.

4. Follow the hire at will!

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.

5. The labor contract is directly terminated!

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 above -mentioned female employee rights protection measures, the "Special Regulations on the Protection of Women’s Workers" also stipulates that employers shall not extend their working hours or arrange night shift labor for more than 7 months of pregnancy.Arrange a certain rest 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.

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