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Recently, many places have announced the notice of increasing unemployment benefits, and Xiaobian has also received many questions related to unemployment benefits. Among them, the most frequently asked questions are:
Can I get unemployment benefits if I leave my job voluntarily?
Come and have a chat with you today ~
Let's answer this question first
The answer is: yes, but there are conditions!
Recently, China Social Security Journal shared a letter from readers:
letters to the editor
Xiaobian:
When Employee A applied for reinstatement after the medical treatment expired, the employer refused to arrange the original job and appointed a new post. Employee A thought it was inappropriate and finally chose to resign. In this case, can Employee A enjoy unemployment insurance benefits? Some people think that this situation belongs to employee A's voluntary resignation, which does not meet the conditions for enjoying unemployment insurance benefits. Is this view valid?
Hunan reader Ms. Jin
In this regard, the editor replied:
Ms. Jin:
According to Article 45 of the Social Insurance Law, the key to whether Employee A can enjoy unemployment insurance benefits is whether it constitutes "non-voluntary interruption of employment". Formally speaking, Employee A resigned, and Article 38 of the Labor Contract Law cannot be applied, so it belongs to "termination of employment due to my will". However, through the analysis of the essence of appearance, it is not appropriate to simply identify it as "interruption of employment because of my will".
Generally speaking, if the laborer can continue his original job after the medical treatment expires, the employer shall continue to arrange the original job; If it is unable to continue the original work, the employing unit shall adjust its post. If both parties can't change the labor contract on the basis of job adjustment, the employer shall apply the notice termination system to terminate the employee's labor contract and pay the economic compensation for the termination of the labor contract.
After returning to the unit after the expiration of medical treatment, it is necessary to consider a variety of factors to determine whether workers can continue to engage in their original jobs and whether they should adjust their jobs. If the original post has been replaced by other employees, and the employer can't dismiss other employees, then employee A really can't continue to work in the original post, and it is reasonable for the employer to arrange other jobs. If the original post is still vacant, but the employing unit refuses to arrange for Employee A to resume work without justifiable reasons, and Employee A leaves his job as a result, it may be considered as "non-intentional interruption of employment". In this case, although employee A can choose to sue and ask the employer to provide the original job and pay labor remuneration, considering the cost and other factors, starting legal proceedings may have an adverse impact on his life, and his passive resignation is not his true will.
Because the original post was replaced, the employer arranged for Employee A to work in other posts. If the post nature, job adaptability and treatment standard are reasonable, if Employee A refuses to accept it and resigns without justifiable reasons, it belongs to "discontinuing employment because of my will" and should not enjoy unemployment insurance benefits. On the contrary, employee A's resignation belongs to "non-intentional interruption of employment" and should enjoy unemployment insurance benefits.
That's the question. How to judge whether you are "not interrupted by my will?" Let's take a look at the relevant regulations of the Ministry of Human Resources and Social Security.
Relevant regulations on receiving unemployment benefits
The "Measures" stipulate that to receive unemployment insurance benefits, three conditions must be met at the same time:
Before unemployment, the employer and I have paid unemployment insurance premiums for one year;
Interruption of employment is not due to my will;
Those who have registered for unemployment and have job requirements.
Among them, non-employment interruption due to my will refers to the following personnel:
1. Termination of the labor contract;
2. The employer terminates the labor contract;
3. Being expelled, removed and dismissed by the employer;
4. The labor contract is terminated with the employer according to the second and third items of Article 32 of the Labor Law of People's Republic of China (PRC);
5. Other provisions of laws and administrative regulations.
Let's take a look at the second and third items of Article 32 of the People's Republic of China (PRC) Labor Law. Under certain circumstances, workers can notify the employer to terminate the labor contract at any time:
1. During the probation period;
2. The employer forces labor by means of violence, threat or illegal restriction of personal freedom;
3. The employer fails to pay labor remuneration or provide working conditions as agreed in the labor contract.
In other words, workers who meet the above conditions are forced to leave their jobs voluntarily, which belongs to "non-intentional interruption of employment" and should enjoy unemployment insurance benefits.
According to the relevant provisions of the Labor Law, in the Labor Law, what circumstances can a worker propose to terminate the labor contract and claim economic compensation? Let's continue to look down.
In the following 12 cases, the laborer can not only terminate the labor contract according to law, but also claim corresponding economic compensation according to the actual situation. The compensation standard will be comprehensively calculated in combination with factors such as the employee's working years in this unit and the monthly salary level:
1. Failing to provide labor protection or working conditions as agreed in the labor contract.
For example, it is impossible to set reasons or unilaterally arrange for workers to wait for posts without consultation, kick out of the work group, deprive the office system of authority, and lead to failure to work normally.
2. Failure to pay labor remuneration in full and on time.
For example, wage arrears, that is, payment of labor remuneration beyond the agreed or statutory payment period; Deduct wages, such as fines for being late, deducting three days' wages for one day of absenteeism, etc. Less pay, such as less calculation, less sales commission, bonus, overtime pay, etc.; For the purpose of layoffs, maliciously reduce the wage standard of workers.
The employer unilaterally formulates or modifies rules and regulations, and its formulation procedure is illegal; It is also illegal to publicize or inform the workers of the rules and regulations and major decisions directly related to their vital interests.
3. Failing to pay social insurance premiums for workers according to law.
For example, failing to pay according to legal standards, which are usually determined according to factors such as employees' salary and length of service; If the employer fails to pay in accordance with the agreement, it is also not paid in full. Employers not only need to pay social security according to legal or agreed standards, but also need to pay it on time. Employers who fail to pay social security according to law may face a series of legal consequences, including but not limited to being ordered to make corrections within a time limit, paying late fees, and accepting administrative penalties.
Four, rules and regulations in violation of laws and regulations, damage the rights and interests of workers.
For example, if the rules and regulations set that the working hours of workers exceed the statutory standards or overtime pay is lower than the statutory requirements, and prohibit workers from joining trade unions or not taking the responsibility of work-related injury insurance, they stipulate that those who violate family planning will be dismissed, overtime pay will not be paid on statutory holidays, all wages for the current month will be deducted if they leave, and three days' wages will be deducted for one day of absenteeism.
Five, the labor contract is concluded or changed under illegal circumstances such as fraud, coercion, etc., which violates the real wishes of the workers and makes the labor contract invalid.
For example, the employer makes untrue or exaggerated propaganda about its own situation in the job advertisement, knowing that it will cause the candidates to have a wrong understanding of it, but still deliberately does it.
6. The employing unit forces laborers to work by means of violence, threat or illegal restriction of personal freedom.
For example, violent means may include direct physical attacks, such as hitting, kicking, pushing and other physical injuries; Threatening means may be manifested as verbal threats, behavioral threats, etc. The employer may threaten to dismiss, reduce wages, transfer posts, impose fines or other adverse consequences, forcing the workers to work against their will.
Seven, the employer illegal command, forcing risky operations endanger the personal safety of workers.
For example, the employer violates the laws and regulations on safe production and occupational disease prevention and control, as well as the operating rules for safe production, and requires workers to work in an environment without safe conditions.
Eight, "0 basic salary" or salary is lower than the local minimum wage.
"0 basic salary" means that employees will not get any basic salary when they fail to complete their tasks or reach their performance targets, which may violate the national regulations on minimum wage.
9. Refusing to pay overtime wages.
For example, overtime is not recognized because employees voluntarily work overtime, or because employees have not applied for overtime in advance, overtime has not been approved, and overtime has been compensated in other ways.
10. Abuse of probation terms.
For example, the probation period is too long, the probation period is repeatedly agreed, and the salary during the probation period is lower than the legal standard; During the probation period, employees are deprived of the benefits they should enjoy, such as social insurance and paid vacation.
XI. Failing to sign a written labor contract, and delaying the signing of the contract for reasons such as "signing after the probation period" and "unified management of the company".
The Labor Contract Law stipulates that the employer shall conclude a written labor contract with the employee within one month from the date of employment. Without labor contracts, workers' social insurance benefits, joining trade unions and other related rights and interests can not be guaranteed.
Twelve, the seizure of workers' certificates, or in the name of "training fees" and "tooling fees" to collect a deposit.
Article 9 of the Labor Contract Law stipulates that when employing workers, the employer shall not detain the employee's resident identity card and other documents, nor shall it require the employee to provide guarantees or collect property from the employee in other names.
