In October 2015, the communique of the Fifth Plenary Session of the Eighteenth Central Committee of the Communist Party of China proposed a policy that a couple can have two children. On January 1, 2016, the "Amendment to the Population and Family Planning Law" came into effect, and the "universal two-child" family planning policy was officially implemented.

This also means that, starting in 1980, the one-child policy, which had been implemented for 35 years, officially came to an end.

According to the data of the National Bureau of Statistics, the birth population in 2016 was 17.86 million, an increase of 1.31 million over the previous year, and the birth rate was 12.95‰; the birth population in 2017 was 17.23 million, a decrease of 630,000 over the previous year. The birth rate was 12.43‰.

In my country's current employment environment, "pregnancy" is a deduction point for women in the workplace. However, labels such as "pregnant women", "young women who are more likely to become pregnant", "middle-aged women with a tendency to have a second child", and "older women who are incapable of becoming pregnant but also incapable of working" apply to almost all employed women. .

This means that women will have to face more severe employment difficulties after the opening of the comprehensive second child.

Pre-employment guarantee: no marriage for two years and no children for three years

case

Xiao Wang worked in a bank in a county-level city. In three years, she was promoted from a teller to an account manager. As a very hardworking woman in the workplace, Xiao Wang hopes to work in a bank in the capital city.

Xiao Wang got an interview opportunity as he wished, and the bank was also very satisfied with Xiao Wang's various conditions. In the last few minutes of the interview, the interviewer asked her if she was married and had children. Although Xiao Wang felt that it had nothing to do with work, he still told the truth about his plan to get married next year.

After many days, the bank has not given her an official reply. The interviewer told Xiao Wang privately that considering that she is getting married next year, it is very likely that she will become pregnant immediately, and they hoped to find someone who could devote herself to her work.

Xiao Wang remembered that she had a friend. During the interview process, the employer asked to sign an agreement not to marry for 2 years and not to have children for 3 years.

What should you do if you are asked about your marriage during an interview?

Legal Analysis

According to the Employment Promotion Law of the People's Republic of China, employers may not restrict female employees from getting married or having children . During the interview process, the employer should not ask Xiao Wang about his marriage and relationship, otherwise there will be suspicion of employment discrimination.

However, the agreement of "not getting married and not having children" that the employer asked Xiao Wang's friend to sign was invalid and illegal . The laborer can prove the violation of the law by the employer through recordings and other forms, and retain evidence for future lawsuits and negotiations.

After being pregnant, she was "suggested" to resign by the factory

case

Xiaogu is a factory worker. She and her husband work in the same factory.

After working for 7 months, Xiao Gu found out that she was pregnant. She had previously assured the leadership that she would not have children this year and would definitely finish the year.

Although it was an accidental pregnancy, Xiaogu did not want to abort the child, she still wanted to give birth.

Xiaogu and the group leader talked about the pregnancy. The team leader didn't say anything, just instructed her to have a good miscarriage.

While working overtime one day, Xiaogu developed abdominal pain symptoms, she immediately took leave to go to the hospital for examination. The doctor asked Xiaogu to rest and avoid fatigue. After returning, Xiaogu applied to the factory not to work overtime.

A few days later, the group leader privately suggested that Xiao Gu resign and go back to his hometown to rest.

Xiaogu feels that she can continue to work. It costs a lot of money to raise children now. She wants to save more money. However, Xiao Gu found that the team leader would not give her a job.

Xiaogu was deducted a lot of money because he asked for leave and did not work. Finance also asked her to resign herself and not come next month.

Xiaogu didn't understand, was she fired?

According to the "Labor Law of the People's Republic of China (2013)" and the "Special Regulations on Labor Protection for Female Workers", the factory cannot deduct wages because Xiaogu takes leave for prenatal check-up, because the time for pregnant female workers to carry out prenatal check-up during working hours is calculated. into working time .

The factory can't reduce Xiaogu's wages because of her pregnancy. Xiaogu can bring a hospital certificate and reasonably request not to work overtime. The factory can appropriately reduce her workload according to the certificate, but cannot ask Xiaogu to resign. This is a disguised dismissal, which is illegal and needs to be paid to Xiaogu.

Compensation calculation method: working years × average salary in the 12 months before leaving × 2 times.

Xiaogu’s working hours are calculated as one year, and the factory needs to pay Xiaogu two months’ compensation and make up the arrears of wages.

Will my salary be deducted for breastfeeding leave?

case

Xiao Zhang is an assistant who gave birth to her second child 4 months ago. She has taken maternity leave and returned to work at the company. She has always wanted to breastfeed her baby. The previous week, at noon, one of her parents had to stay at home to look after the child, and the other came to the company to retrieve breast milk to feed the child. Xiao Zhang wants to take a leave at noon to go home to feed the child before going to work, but she doesn't know if her salary will be deducted.

According to the "Special Regulations on Labor Protection for Female Employees", Xiao Zhang can enjoy 0.5 hours of breastfeeding time twice a day, or it can be combined into one hour. Xiao Zhang can apply to the company for breastfeeding leave. The time for breastfeeding and the time spent on breastfeeding and round trips in the unit are counted as labor time, and the company shall not reduce wages accordingly.

The duration of breastfeeding leave is generally three months, but it can also be extended by applying to the company.

How to get maternity allowance after giving birth?

Xiao Qin is an accountant who has worked in a company for 6 years and re-signs the labor contract every year. Xiao Qin decided to have a second child. In May last year, she became pregnant successfully.

After the labor contract expired in September of that year, Xiao Qin reported to the company's human resources department and asked to renew the labor contract. But the company was slow to renew the contract.

In February of this year, Xiao Qin started maternity leave 10 days before giving birth, and his salary also began to stop. During maternity leave, Xiao Qin heard from colleagues that her office space was already used by a new colleague. Xiao Qin went to ask the boss, and the boss said it was only temporary.

By May this year, Xiao Qin had applied for a total of 90 days of maternity leave, and then she asked to go back to work. However, a colleague in the human resources department said that Xiao Qin's labor contract had expired, her maternity leave was too long, and her previous position had been recruited, so she could no longer go back to work.

Xiao Qin didn't know whether to continue looking for a job or take care of the children at home for a few years. She also heard that she can receive maternity allowance during maternity leave. The company has not paid her five social insurances and one housing fund. She does not know whether she can still receive maternity allowance.

According to the "Labor Law of the People's Republic of China (2013)" and the "Special Provisions on Labor Protection for Female Employees", employers cannot dismiss female employees of "three periods (pregnancy, childbirth, and lactation)" without any reason. The reasons for dismissal proposed by the employer:

1) The labor contract expires. ——Article 45 of the Labor Contract Law has made a basic negative answer to this, requiring that the labor contract must be continued until the corresponding situation disappears before it can be terminated. The labor contract should be extended until the end of Xiao Qin's breastfeeding period before the company can terminate the contract.

2) Maternity leave is too long. ——Xiao Qinxiu's maternity leave complies with Article 7 of the "Special Regulations on Labor Protection for Female Employees", and the company cannot fire her for this reason.

3) Recruit other people for the position. ——The company can negotiate with Xiao Qin to exchange positions.

Maternity benefits can be considered as wages for women during maternity leave. If the company has always bought maternity insurance for female employees, the wages of female employees during maternity leave will be paid by the social security agency. If the company fails to pay maternity insurance for female employees, the company shall pay the wages of female employees during maternity leave. Female employees can only receive one maternity allowance issued by the social security institution and maternity leave wages issued by the company.

The company's practice of dismissing Xiao Qin is illegal, and it should pay Xiao Qin financial compensation and reissue maternity leave wages.

Public policies should protect the rights and interests of female workers

As mentioned above, Chinese laws provide special protection for women during pregnancy, childbirth and breastfeeding.

According to Article 39 of the Labor Contract Law , it is illegal for an employer to dismiss a pregnant woman unless the employee is at fault . If dismissed due to pregnancy, women can claim compensation from the employer according to law.

The reason is simply that the cost of claims is high, the cost of infringement is low, the cost of pregnancy labor is high, and the regulatory threshold is low.

Most of the labor costs for women due to pregnancy need to be borne by the employer. Employers improve economic efficiency by not recruiting pregnant women and refer labor costs to women. The time and economic cost required by the parties to make a claim are often higher than the amount of compensation.

The two-child policy has been fully liberalized, but services such as the regulation of employment discrimination and the issuance of maternity allowances have not kept up. Under the interlocking links, all the pressures brought about by childbirth are ultimately borne by women themselves.

Take up legal weapons to protect yourself

If a female employee is dismissed by the company due to pregnancy, she can claim for compensation in the following ways:

1. You can negotiate compensation with the company yourself;

2. The local people's mediation committee applies for mediation;

3. Complain to the competent department of the unit or the local labor department (Human Resources and Social Security Bureau, etc.);

4. Apply to the labor arbitration committee for labor arbitration;

5. File a lawsuit with the court.

If you don't know how to deal with it, or lack sufficient legal knowledge to analyze and respond, you can call the legal hotline for women in the workplace initiated by lawyers, scholars, legal workers, and women's rights workers: 400-074-0074.

Remarks: Relevant legal provisions

"Employment Promotion Law of the People's Republic of China"

Article 27: The state guarantees that women enjoy equal labor rights with men. Employers who employ female employees shall not stipulate in the labor contract the content that restricts the marriage and childbirth of female employees.

Article 62: Where employment discrimination is violated in violation of the provisions of this law, workers may file a lawsuit with the people's court.

"Labor Law of the People's Republic of China (2013)"

Article 42: The employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law under any of the following circumstances: of.

Article 47: Economic compensation shall be paid to the laborer according to the number of years the laborer has worked in the unit, and the standard of one month's salary for each full year. If it is more than six months but less than one year, it shall be calculated as one year; if it is less than six months, economic compensation of half a month's wages shall be paid to the laborer.

Article 87: If the employer rescinds 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.

"Special Provisions on Labor Protection for Female Employees"

Article 5: Employers shall not reduce the wages, dismiss, terminate labor or employment contracts of female employees due to pregnancy, childbirth, or breastfeeding.

Article 6: 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 be adapted according to the certificate of the medical institution. ... Pregnant female employees shall conduct prenatal examinations during working hours, and the required time shall be included in working hours.

Article 7: Female employees are entitled to 98 days of maternity leave, including 15 days of leave before giving birth.

Article 8: The maternity allowance for female employees during maternity leave, for those who have participated in maternity insurance, shall be paid by the maternity insurance fund according to the average monthly salary of the employees in the previous year; The standard is paid by the employer.

Article 9: For female employees who have babies under one year old, their unit shall give them two breastfeeding (including artificial feeding) time during each shift, 30 minutes each time. In the case of multiple births, the duration of each feeding will be increased by 30 minutes for each additional baby. The two breastfeeding breaks for female employees within the working hours of each shift may be used in combination. Breastfeeding time and the time on the way to and from breastfeeding within the unit are counted as labor time.

"Labor Contract Law"

Article 39: The laborer himself has major faults, and the employer can terminate the labor contract in the following six situations:

1. Pregnant during the probationary period, and at the same time the employer proves that the worker does not meet the employment conditions; 2. Seriously violates the rules and regulations of the employer; 3. The pregnant employee is seriously dereliction of duty and malpractices at work, causing serious damage to the employer; 4. . The laborer establishes labor relations with other employers at the same time, and the part-time job has a serious impact on the completion of the work tasks of the employer, or the employer refuses to make corrections; Entering into or changing a labor contract against the true intentions; 6. Being investigated for criminal responsibility according to law.

 Please respect the originality and protect the copyright. This article is an original work jointly released by Jianjiaobuluo.com and Hugaiguancha (Public ID: hugaiguancha), a Chinese female worker's rights and life information platform. Please indicate the source when reprinting. and retain the following author information:
By: The Women in Work Legal Hotline provides free legal help, legal advice, and case support to all women in the workplace.