Second, the legal risk of the conclusion of labor contracts

The employing unit must conclude labor contracts with qualified workers. The eligibility here is generally identified from the two perspectives of age and ability.

First, the worker who enters into a labor contract must reach the legal working age.

A worker who has reached the age of signing a labor contract at the age of 18 or above may sign a labor contract; Workers who have reached the age of 16 but not 18 May also conclude labor contracts in accordance with the relevant provisions of labor laws and regulations, provided that they do not violate laws and regulations. Labor laws and regulations clearly stipulate that employers are prohibited from hiring minors under the age of 16. Article 11 of the Prohibition of Child Labour states: Whoever abducts child Labour, forces child Labour, uses child Labour in high-altitude, underground, radioactive, highly toxic, inflammable and explosive work or work with grade IV physical Labour intensity as prescribed by the State, uses child Labour under the age of 14, or causes death or serious disability to child Labour, shall be investigated for criminal responsibility in accordance with the provisions of the Criminal Law on the crime of abducting and selling children, the crime of forced Labour or other crimes.

Second, the workers who enter into labor contracts should have the ability to work.

Labor ability refers to the ability of workers to complete a certain job by virtue of their own intelligence or physical strength. Enterprises should conclude labor contracts with workers who have corresponding labor ability according to the contents of the contracts, so as to ensure the smooth performance of labor contracts.

In addition, according to the provisions of labor laws and regulations, if an employer hires a worker whose labor contract has not been terminated and causes economic losses to the original employer, the employer shall bear joint and several liability for compensation according to law. According to Article 11 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Labor Dispute Cases (2008 Adjustment), if an employer hires a worker whose labor contract has not been terminated, the labor dispute between the original employer and the worker may be listed as the third party of the new employer. Therefore, once an enterprise employs a worker who has not yet terminated the original labor contract, if the worker is sued by the original employer, the new employer's joint and several liability may be difficult to exempt. Therefore, when hiring employees, enterprises should pay attention to asking (where appropriate, employees can make a statement for the record) and reviewing the proof that the employee has terminated the labor relationship with the original unit.

Finally, the hired senior managers, high-tech talents usually signed a confidentiality agreement with the original employer, competition restriction agreement, for this kind of more scarce talents, we must pay attention to ask and review whether they have signed such agreements with the original employer, and review whether the important information provided by them is suspected of infringing others' trade secrets. If necessary, employees can make a written statement of the situation.

Third, the legal risk of labor contract modification

Modification of labor contract refers to the modification, addition or cancellation of some provisions of the labor contract after the parties to the labor contract reach an agreement through consultation because some of the provisions of the labor contract cannot be continued to be performed due to changes in the objective circumstances on which the labor contract is concluded. Article 35 of the Labor Contract Law stipulates that an employer and a worker may change the contents of a labor contract upon consensus through consultation. According to the provisions of labor laws and regulations, a labor contract is legally binding immediately after it is concluded according to law, and the parties must perform the obligations stipulated in the labor contract. If the labor contract is changed, it shall follow the principle of equality, voluntariness and consensus through consultation and shall not violate the provisions of laws and administrative regulations. If the labor contract is modified against the true intention of the other party by means of fraud, coercion or taking advantage of the other party's situation, the alteration may be deemed invalid.

According to the production and operation needs of enterprises, it is an important part of enterprises to adjust their employees' job positions and salary standards. Many enterprises certainly think that they have the right to transfer their employees' posts and salaries at any time. However, according to the legislative spirit of labor laws and regulations, the objective conditions based on which labor contracts are concluded have changed significantly. The relevant contents of the labor contract may be changed only after the parties have reached a consensus through consultation. The employer's right of post adjustment and salary adjustment can not be exercised arbitrarily, only when the employee is not competent for the job, can unilaterally make a decision on post adjustment, and shall not hinder the employee's exercise of the right to rescind the contract.

It needs to be reminded that whether it is a change in position or a change in salary, it is a major change in the labor contract, and it must be paid attention to the written form, such as a separate labor contract can be signed, such as a supplementary contract or a separate confirmation mode (written notice of the change, and then the employee's signature and approval are also counted), etc., otherwise, once the dispute in the future, It is difficult to prove that an agreement has been reached, which poses significant legal risks for the company.