HR Legal Corner: Ten Required Paid Annual Leave Knowledge Points for HR
Published:
2021-04-01
1. the conditions for employees to enjoy annual leave?
Analysis: employees of government organs, organizations, enterprises, institutions, private non enterprise units, individual industrial and commercial households with employees who have worked continuously for more than one year shall enjoy paid annual leave.
Reminder: The situation of "employees working continuously for more than 1 year" includes employees working continuously in the same employer for more than 1 year and employees working continuously in different employers for more than 1 year.
2. employees should enjoy annual leave days?
Analysis: The employee has worked for 1 year but less than 10 years, and has taken 5 days of annual leave. After 10 years but less than 20 years, the annual leave is 10 days. After 20 years, the annual leave is 15 days. National statutory holidays and rest days are not included in the annual leave.
Reminder: "Cumulative work" time includes the period during which employees are engaged in full-time work in agencies, organizations, enterprises, institutions, private non-enterprise units, individual industrial and commercial households with employees, etc., as well as military service in accordance with national laws and administrative regulations And the period that can be calculated as the length of service (regarded as the working period) as stipulated by the State Council.
3. which situations do employees not enjoy annual leave?
Analysis: (1) Employees enjoy winter and summer vacations according to law, and their vacation days are more than annual vacation days; (II) employees take personal leave for a total of more than 20 days and the unit does not deduct wages according to regulations; (III) employees who have worked for 1 year but less than 10 years have taken sick leave for a total of more than 2 months; (IV) employees who have worked for 10 years but less than 20 years have taken sick leave for a total of more than 3 months; (V) employees who have worked for more than 20 years have taken sick leave for more than 4 months.
Reminder: Employees have already enjoyed the annual leave of the current year, and if one of the (V) situations in the above (II) (III) (IV) occurs during the year, they will not enjoy the annual leave of the next year.
How do 4. calculate annual leave pay?
Analysis: For the number of days an employee should take without vacation, the unit shall pay 300 per cent of the employee's daily wage. The daily wage income for calculating the salary of the unpaid annual leave is converted according to the employee's monthly salary divided by the number of days of monthly salary (21.75 days).
Hint: The 300% salary here already includes the part of the salary income paid by the employer during the normal working period. In the specific accounting, the unit will pay another 200 per cent of the salary.
Do employees in the 5. probation period enjoy annual leave?
Analysis: The probationary employee shall be judged according to the specific work situation of the employee. As long as the employee has worked continuously for one year or has just completed one year of service during the probationary period, the employee is entitled to annual leave.
Hint: If the probation period expires and the employee is retained, the employee shall enjoy annual leave or be given annual leave salary according to the working hours of the current year; if the labor contract is terminated during the probation period and the employee is eligible to enjoy paid annual leave, the number of annual leave days shall be converted according to the natural calendar days of the employee's work in the unit.
If the 6. unit fails to arrange the employees to take annual leave in this year due to the needs of production and operation, can it arrange the post to take annual leave in the following year?
Analysis: If the unit cannot arrange for employees to take annual leave within this year due to work needs, it can only arrange annual leave across one working year and obtain the consent of the employees themselves, and cannot make a unilateral decision.
7. the employer arranges the employee to take annual leave, but the employee does not take annual leave due to his own reasons, can the employer only pay the salary income during the normal working period?
Analysis: If the worker gives up the leave application in writing due to personal reasons or when the employer arranges the worker to enjoy the annual leave, and fails to use the annual leave as scheduled due to the worker's personal reasons, it shall be regarded as the worker giving up and cannot enjoy 300 of the annual leave salary.
Tip: In this case, the unit may not pay the employee the salary of the unpaid annual leave. However, the employer needs to prove that: 1. The employer has arranged the annual leave of the employee; 2. It is very important that the employee does not take the leave due to personal reasons; 3. Employees need to put forward their willingness to take annual leave in writing.
How to calculate the annual leave for 8. employees who are new to the unit and meet the conditions for enjoying annual leave?
Analysis: If an employee is new to the employing unit and meets the conditions for enjoying annual leave, the number of annual leave days in the current year shall be converted and determined according to the remaining calendar days in the unit, and the part less than 1 full day after conversion shall not enjoy annual leave.
The specific calculation method is: (the number of calendar days remaining in the unit in the current year ÷ 365 days) x the number of annual leave days that the employee himself should enjoy throughout the year.
9. the employer rescinds or terminates the labor contract with the employee, if the employee does not take the annual leave of the current year or does not take the annual leave of the current year, if the annual leave is calculated?
Analysis: When the employer and the employee terminate or terminate the labor contract, if the employee is not arranged to take the annual leave in the current year, the number of days of the unpaid annual leave shall be converted according to the working time of the employee in the current year and the unpaid annual leave salary shall be paid, but the unpaid annual leave salary shall not be paid for the part less than one full day after conversion.
The specific calculation method is as follows: (the number of calendar days that have passed in the unit in the current year ÷ 365 days) × the number of annual leave days that the employee should enjoy throughout the year-the number of annual leave days that have been arranged in the current year.
Reminder: There is no specific distinction between the reasons for the termination or termination of the labor contract. Therefore, if the employee is terminated from the labor contract due to serious violation of discipline or the employee voluntarily resigns, the employer must still pay the unpaid annual leave salary.
Does the statute of limitations for 10. paid annual leave apply to a one-year ordinary statute of limitations or a special statute of limitations?
Analysis: There are two opinions in practice on the limitation of paid annual leave disputes: the first opinion is that annual leave wages belong to the category of welfare benefits and are subject to the ordinary limitation, that is, one year from the date when they know or should know that their rights have been infringed; The second opinion is that annual leave wages belong to labor remuneration, that is, "disputes arise due to arrears of labor remuneration", and there is no ordinary limitation for workers to apply for arbitration.
Taking Shandong as an example, through the search of relevant cases, Jinan City Intermediate People's Court, Rizhao City Intermediate People's Court, Jining City Intermediate People's Court and Zibo City Intermediate People's Court hold the second opinion; Binzhou City Intermediate People's Court, Weifang City Intermediate People's Court, Weihai City Intermediate People's Court, Zaozhuang City Intermediate People's Court, Yantai City Intermediate People's Court and Taian City Intermediate People's Court apply the first opinion.
Hint: The limitation of disputes over paid annual leave is not uniform in different regions, which can be based on recent jurisprudence rules in various regions.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
