If the employing unit dissolves or terminates the labor contract in violation of the provisions of this Law, it shall pay compensation to the laborer at twice the economic compensation standard stipulated in Article 47 of this Law.

Article 47

The economic compensation shall be paid according to the standard of one month's salary for each full year of the employee's working years in the unit. For more than six months but less than one year, it shall be counted as one year; If it is less than six months, economic compensation of half a month's salary shall be paid to the workers.

The employer can only terminate the labor contract and dismiss the employee under legal circumstances.

There are four statutory situations:

I. Dissolving the Labor Contract through negotiation

That is, Article 36 of the Labor Contract Law: "The employer and the employee may terminate the labor contract through consultation."

Second, the fault of the termination of the contract

That is, when the laborer is at fault, the employer has the right to unilaterally terminate the labor contract. There are no strict restrictions on the procedure of wrongful termination of labor contracts. The employer does not need to pay the economic compensation for the termination of the labor contract. If the law stipulates liquidated damages, the laborer shall pay the liquidated damages.

Article 39 of the Labor Contract Law: "In any of the following circumstances, the employer may terminate the labor contract:

1, proved to be unqualified for employment during the probation period;

2, a serious violation of the rules and regulations of the employer;

3, serious dereliction of duty, corruption, causing great damage to the employer;

4. The laborer establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the unit, or the employer refuses to correct it;

5. The labor contract is invalid due to the circumstances specified in Item 1 of Paragraph 1 of Article 26 of this Law;

6. Being investigated for criminal responsibility according to law.

Third, the solution to terminate the contract without fault

That is, the laborer himself is not at fault, but the labor contract cannot be fulfilled due to subjective and objective reasons, and the employer has the right to unilaterally terminate the labor contract after performing the procedures prescribed by law. There are strict restrictions on the procedure of terminating the labor contract without fault. Specifically, before terminating the labor contract, the employer shall notify the employee in writing 30 days in advance or pay the employee an extra salary of 1 month; If the employer chooses to pay the laborer extra 1 month to terminate the labor contract, the extra salary shall be determined according to the previous 1 month salary standard of the laborer. The employing unit shall pay economic compensation to the workers.

Article 40 of the Labor Contract Law: "In any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an extra month's salary:

1. The employee suffers from illness or non-work-related injury, and cannot engage in the original work or other work arranged by the employer after the prescribed medical treatment period expires;

2. The laborer is not competent for the job, and is still not competent for the job after being trained or adjusted;

3. The objective conditions on which the labor contract was concluded have changed greatly, which makes the labor contract impossible to perform, and the employer and the employee cannot reach an agreement on changing the contents of the labor contract through consultation.

Fourth, economic layoffs.

Refers to the employees who are dismissed by the employer for economic or technical reasons in order to reduce labor costs and improve management, but account for more than 65,438+00% of the total number of employees in the enterprise. There are strict conditions and procedural restrictions on economic layoffs, and employers must abide by the regulations when laying off employees. In case of economic layoffs, the employing unit shall pay economic compensation to the workers.

Article 41 of the Labor Contract Law: "In any of the following circumstances, if it is necessary to lay off more than 20 employees or less than 20 employees, but it accounts for more than 10% of the total number of employees in the enterprise, the employing unit shall explain the situation to the trade union or all employees 30 days in advance, and after listening to the opinions of the trade union or employees, it may report the plan for laying off employees to the labor administrative department:

1, reorganized in accordance with the provisions of the enterprise bankruptcy law;

2. Serious difficulties in production and operation;

3, enterprise production, major technological innovation or operation mode adjustment, after the change of the labor contract, still need to reduce staff;

4. Other major changes have taken place in the objective economic situation on which the labor contract was concluded, resulting in the inability to perform the labor contract.

It should be noted that those who should be given priority when applying for economic layoffs will enter into long-term fixed-term labor contracts with the unit; Conclude an open-ended labor contract with the unit; There are no other employees at home, and there are old people or minors who need to be supported. Restrictions on Re-employment after layoffs If an employer lays off employees according to law and re-hires employees within six months, it shall notify the laid-off employees and give priority to the laid-off employees under the same conditions.

The exception of economic layoffs is that the employer may not unilaterally terminate the labor contract. According to the provisions of Article 40 on no-fault dismissal and Article 4 1 on economic layoffs: the workers exposed to occupational hazards did not undergo occupational health examination before leaving their posts, or the patients suspected of occupational diseases were during diagnosis or medical observation; Party B suffers from occupational disease or work-related injury in this unit and is confirmed to have lost or partially lost the ability to work; Illness or non-work-related injury within the prescribed medical treatment period; Female employees during pregnancy, childbirth and lactation; Working continuously in this unit for 15 years, less than 5 years from the statutory retirement age; Other circumstances stipulated by laws and administrative regulations.

For employers, there are four types according to the cost of dismissing employees:

First, it is necessary to pay compensation to the dismissed employees.

If the employer terminates or terminates the labor contract in violation of the relevant provisions of the Labor Law, and the employee fails to continue to perform the contract or the contract cannot be continued, the employer shall pay compensation to the dismissed employee according to law.

Second, dismissal of employees requires payment of compensation.

According to the law, in any of the following circumstances, the employer shall pay compensation to the dismissed employees:

(1) The employing unit conducts rectification in accordance with the provisions of the Enterprise Bankruptcy Law and dismisses employees through legal procedures;

(2) When the labor contract expires, the employer decides not to renew the labor contract with the employee, but the employer maintains or improves the conditions stipulated in the labor contract to renew the labor contract, unless the employee does not agree to renew it;

(3) The employing unit is declared bankrupt according to law, or its business license is revoked, and it is ordered to close down or dismiss its employees;

(4) When the employer decides to terminate the contract in advance, the employee shall be dismissed.

Three, 30 days in advance notice or payment in lieu of notice as compensation.

Under any of the following circumstances, the employer only needs to notify the employee in writing 30 days in advance or pay the employee an extra month's salary:

(1) The employee suffers from illness or non-work-related injury, and after the medical treatment expires, he can't engage in the original job or other jobs arranged by the employer;

(2) The laborer is still incompetent after training or job adjustment.

(3) The objective circumstances on which the labor contract was concluded have changed greatly, which makes the original labor contract impossible to perform and the parties concerned cannot reach an agreement through consultation.

Four. Dismissed employees are not required to pay compensation.

(1) The employing unit may terminate the labor contract without notice if the employee is under any of the following circumstances:

1. It is proved that it does not meet the employment conditions during the probation period;

2, serious violation of labor discipline and the rules and regulations of the employer;

3, serious dereliction of duty, corruption, causing great losses to the interests of the employer;

4. Establishing labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of this unit, or the employer refuses to correct it;

5. The employer concludes or changes the labor contract against its true meaning by means of fraud, coercion or taking advantage of the danger of others;

6. Be investigated for criminal responsibility according to law.

Article 1 The Measures for Economic Compensation for Violating and Dissolving the Labor Contract stipulates that the unit shall pay economic compensation in the following cases of dissolving the labor contract according to law.

1. If the parties to a labor contract reach an agreement through consultation, the employer shall pay the salary equivalent to one month for each full year, one year for six months and less than one year, and half a year for less than six months. If the working experience exceeds 12 years, it shall be calculated as 12 years.

The calculation formula of economic compensation for dissolving the labor contract through negotiation: economic compensation = working years × monthly salary.

(The monthly salary refers to the average salary of the laborer 12 months before the dissolution or termination of the labor contract. )

2. If the employee is sick or injured at work, and cannot engage in the original job or other jobs arranged by the employer after the medical treatment expires, he shall be paid the salary equivalent to one month for every full year, and the salary for less than one year shall be paid according to the standard of one year;

Calculation formula of economic compensation for termination of labor contract due to illness or non-work-related injury:

Economic compensation = working years × monthly salary+Medicaid (Medicaid is not less than 6 months' salary)

3. The laborer is not competent for the job, and is still not competent for the job after training or adjustment.

According to the working years, pay the salary equivalent to one month for each full year, and pay according to the standard of one year for those less than one year, with a maximum of 12 months.

If the laborer is incompetent, the calculation formula of economic compensation for terminating the labor contract is: economic compensation = working years × monthly salary.

(If the working experience exceeds 12 years, it shall be calculated as 12 years).

4. The objective conditions on which the labor contract was concluded have changed greatly, which makes the original labor contract unable to be performed and the parties cannot reach an agreement on changing the labor contract through consultation. According to the working years, pay the equivalent of one month's salary for each full year, and pay according to the standard of one year for those less than one year.

The calculation formula of economic compensation for the termination of labor contract due to major changes in objective conditions: economic compensation = working years × monthly salary.

5. Economic layoffs

According to the working years, pay the equivalent of one month's salary for each full year, and pay according to the standard of one year for those less than one year.

6. Calculation of economic compensation for overdue payment by the employer

Economic compensation = original economic compensation+additional economic compensation (additional economic compensation = original economic compensation ×50%)

7. The employer does not pay economic compensation.

Compensation = sum of economic compensation ×N= working years× monthly salary× (1+50% )× n (1

Article 2 of rules of shanghai labor contract stipulates that the following workers shall terminate their labor contracts according to law, and the unit shall pay economic compensation.

1. The employer forces labor by means of violence, threat or illegal restriction of personal freedom;

According to the working years, pay the salary equivalent to one month for each full year, and pay according to the standard of one year for those less than one year, with a maximum of 12 months.

2. The employer fails to pay labor remuneration or provide working conditions as agreed in the labor contract.

According to the working years, pay the salary equivalent to one month for each full year, and pay according to the standard of one year for those less than one year, with a maximum of 12 months.

3. The employer is bankrupt, dissolved or revoked.

According to the working years, pay the equivalent of one month's salary for each full year, and pay according to the standard of one year for those less than one year.

Article 3 Calculation of Compensation for Termination of Labor Contract

1. Calculation of compensation for illegal termination of labor contract by workers

Compensation = employment expenses+training expenses+direct economic losses+other agreed compensation expenses.

2. Calculation of compensation for the employee's violation of the confidentiality clause agreed in the labor contract.

Compensation = loss of the infringed operator (or profit of the infringer due to infringement)+reasonable investigation expenses.

Article 4 Joint liability of employers and employees

1. Calculation formula of total compensation

Total compensation = direct economic loss+economic loss caused to the original employer due to the acquisition of trade secrets (the employer bears more than 70%).

2. Calculation formula of employer's salary share

Salary = total salary ×N(70%≤N≤ 1)

3. Formula for calculating workers' compensation share

Salary = total salary-employer's salary share

Article 5 Compensation calculation for failure to conclude a labor contract, conclusion of an invalid labor contract, violation of the health of female workers and underage workers, and illegal termination of the labor contract due to the employer's reasons.

1. Calculation of compensation for workers' wage income loss

Salary = salary ×25%

2. Calculation of workers' compensation for work-related injuries and medical losses.

Compensation = medical expenses ×25%

3. Calculation of compensation for physical injuries caused by female workers and underage workers

Compensation = medical expenses ×25%

Article 6 Calculation of compensation for termination of labor contract by laborers

1. Compensation for illegal termination = employment fee+training fee+direct economic loss+other agreed compensation.

2. Compensation for workers' breach of confidentiality obligation = loss of the infringed operator (or profit of the infringer due to infringement)+reasonable investigation expenses.

Article 7 Compensation for non-competition

There is no uniform standard for compensation in the whole country, and some provinces and cities have local regulations. Generally, it is a certain proportion of the total compensation received from enterprises in the last year before employees leave their jobs, and the longest period is no more than three years.

Article 8 Does the salary of economic compensation include overtime pay and various subsidies?

According to relevant regulations, the calculation standard of economic compensation should be based on the average wage income of workers in the twelve months before the dissolution or termination of the labor contract (if the calculation result is lower than the minimum wage standard, the minimum wage standard should be used). Wage income shall include hourly wages, piecework wages, bonuses, allowances and subsidies, wages paid for extended working hours and wages paid under special circumstances.

Article 9 What violations of discipline can legally terminate the labor contract without paying compensation?

1. It is proved that it does not meet the employment conditions during the probation period;

2. Serious violation of labor discipline or rules and regulations of the employing unit;

3. Serious dereliction of duty, graft, causing great damage to the interests of the employer;

4. Being investigated for criminal responsibility according to law;

5. Other circumstances stipulated by laws and regulations.

Tenth can not be included in the scope of economic compensation base.

1. Social insurance benefits, such as funeral pensions and relief funds, subsidies for living difficulties, family planning subsidies, etc. ;

2. Labor insurance expenses, such as work clothes, antidotes, cold drinks, etc.

3. Invention award, national spark award, natural science award, scientific and technological progress award, rationalization proposal and technical improvement award, Chinese skill award and other labor remuneration and other labor income that are not included in the total wages according to regulations. , as well as manuscript fees, lecture fees, translation fees and so on.