How to Prevent Retirees from Hiring Employment Risks
Employment risk
With the advancement of China's reform and opening up process, enterprises' awareness of risk management has become stronger and stronger.
In today's increasingly flexible employment forms, some personnel who have gone through retirement procedures or have exceeded the statutory retirement age (hereinafter collectively referred to as retirees) do not want to leave their jobs and are willing to continue their employment.
However, since the company has not found a satisfactory replacement in time, and considering the rich work experience of the retirees, it is also willing to arrange the retirees to continue to provide services for the company in relevant positions.
How to define the legal relationship between retirees and enterprises?
How should companies pay retirees?
Do I have to sign a contract?
How to prevent retirees from the risk of accidental injury due to work reasons?
one,
Legal relationship between retirees and rehiring companies
Depending on whether the relationship between the retiree and the enterprise is an employment relationship, different situations should be distinguished:
If the retiree is a person who has reached the legal retirement age but has not enjoyed endowment insurance benefits or pensions, the employment relationship formed between the retiree and the enterprise shall be treated as a labor relationship;
If the retiree is a person who has already enjoyed endowment insurance benefits or pensions, the employment relationship between the retiree and the enterprise shall be handled as an employment relationship;
If a retiree has not yet reached the legal retirement age, but has gone through the internal retirement procedures in the previous unit and then works in the latter enterprise, the employment relationship formed between the retiree and the enterprise shall be treated as a labor relationship.
two,
Rights and Obligations of Retired Persons and Rehired Enterprises
What treatment the re-employment enterprise should provide for the retirees and what obligations it should perform should be determined according to the legal relationship between the re-employment enterprise and the retirees.
If there is a labor relationship between the re-employment enterprise and the retirees, the re-employment enterprise shall provide the employees with corresponding welfare benefits in accordance with the provisions of labor laws and regulations;
If there is a labor-employment relationship between the two parties, the enterprise shall perform its obligations and assume corresponding responsibilities in accordance with the provisions of the contract law and other civil regulations.
In terms of rights and obligations, compared with the employer in the employment relationship, the employer in the employment relationship mainly has the following differences:
There is an equal legal relationship between the employer and the employee, and the employer is not required to provide the employee with benefits such as social insurance, overtime wages, economic compensation, and leave systems based on labor relations;
When the employee suffers personal injury at work, the employer still has to bear the compensation liability to the employee, but the employer's liability for compensation is quite different from the work injury compensation, mainly including the following four:
(1) The subjects of compensation are different.
Most of the costs of work-related injuries and personal compensation are paid by the social security fund, and enterprises still have to pay a small part of the costs such as medical subsidies and disability employment subsidies;
In the employer's compensation liability, the proportion shared by the employer is entirely borne by the employer.
(2) The calculation method is different.
Work injury compensation is calculated in accordance with the provisions of the Work Injury Insurance Regulations, and the employer’s compensation liability is calculated in accordance with the provisions of the Tort Liability Law and other civil regulations.
(3) The employer’s liability for compensation shall be subject to the principle of offsetting faults. If the employee is at fault, the employer’s liability for compensation shall be reduced accordingly. In labor relations, the compensation that an employee can receive in a work-related accident is not subject to the employee’s fault at work. Impact.
(4) The employer's liability for compensation, if physical disability is caused, may additionally request spiritual compensation; and in the industrial injury compensation, there is no problem of paying additional spiritual compensation.
three,
Legal Risk Prevention for Retirees
How to prevent the legal risks of retirees, enterprises should take corresponding measures according to the relationship between retirees and rehiring enterprises and the problems in reality.
If the personal affiliation between the retiree and the enterprise is very low, and the retiree does not need to abide by the working hours and work system of the enterprise, it is better for the re-employment enterprise to use cooperation or contracting methods with them, and do not adopt labor relations or The method of employment, because in the contractual relationship such as cooperation or contracting, the cooperative party and the contracting party shall bear the legal risks or legal liabilities caused by their own reasons.
If there is a labor relationship between the re-employment enterprise and the retiree, the enterprise shall sign a labor contract with the retiree, clearly stipulating the rights and obligations of both parties.
For retirees who have not yet reached the statutory retirement age and have gone through the formalities for internal retirement in the previous unit, if the enterprise can still handle social insurance for them, the enterprise should purchase corresponding social insurance for them.
If a retiree is a person who has reached the legal retirement age but has not received pension benefits or pensions (according to the practice of the Shenzhen Social Security Bureau, those who have reached the legal retirement age cannot apply for social insurance), they should clearly state in the labor contract that they cannot apply for social insurance. Because of the reason, the employee agreed not to apply for relevant insurance, so that the employee would not apply for social security insurance and then proposed to terminate the labor contract and demanded payment of economic compensation.
Since there is no social insurance, if a retiree is injured in the process of work, it will bring a huge amount of compensation to the enterprise.
If you want to prevent this kind of risk, it is recommended to purchase employer liability insurance or personal accident insurance for it, and stipulate it in this contract.
If there is an employment relationship between the re-employment enterprise and the retirees, the re-employment shall sign an employment agreement with them, clarifying the rights and obligations of both parties.
In addition, if the employee is injured in the employment activities, the employer still needs to bear the corresponding compensation liability. If the company wants to prevent this risk, it is recommended to purchase employer liability insurance or personal accident insurance for it, and stipulate it in this contract.