略论劳动法中经济补偿

在劳动法律关系中 ,用人单位与劳动者解除劳动合同或劳动合同终止后 ,用人单位常常要依照法律规定 ,一次性支付给劳动者一定的经济补偿。关于这种经济补偿规定适用的前提是劳动合同的存在 ,并且劳动者无过错的情况下劳动合同解除或劳动合同终止 ,其常常以劳动者工作时的月工资收入为标准来计算。     

Federal employees health benefits program; coverage of temporary employees--OPM. Interim rule with request for comments

The Office of Personnel Management (OPM) is issuing interim regulations to clarify the eligibility of temporary employees to continue their Federal Employees Health Benefits (FEHB) coverage when they become compensationers. These regulations are necessary to distinguish between retirement as an employee annuitant and "retirement" as a compensationer. OPM is also issuing regulations to allow temporary employees an opportunity to change health plans if their salary is insufficient to pay the premium withholdings, to show the effective date of such an enrollment change, and to provide for the termination of these employees' enrollment if they do not change health plans.     

违法解雇期间工资支付法律问题探讨——基于我国台湾地区劳动立法与学说的考察

摘基于劳动关系的特殊性，我国台湾地区“民法”规定雇主违法解雇劳工受领迟延期间应当继续支付工资。雇主支付工资时有权扣除劳工因不服劳务所直接减省的费用，但不得扣除劳工转向他处服劳务所取得的工资或故意怠于取得的利益。劳工要求雇主支付被违法解雇期间的工资应当具备法定条件，并应当就雇主受领劳务迟延及工资报酬之计算等权利发生要件负举证责任。     

A proposal for a nonreinstatement rule in unfair labor practice cases involving patient abuse

Nursing home discharges of employees based on patient abuse raise a difficult issue when the motivating factor for the disciplinary action is union activism. A tension is created between the rights of employees to engage in protected concerted activity and the rights of patients to quality care. In 1974, Congress passed the Health Care Institutions Amendments, which granted to non-profit health care workers collective organizing and bargaining rights substantially similar to those which workers in other industries had enjoyed for decades under the National Labor Relations Act. Congress intended to give health care workers only that degree of parity, however, which is compatible with the provision of high quality patient care. The agency charged with enforcing the Act, the National Labor Relations Board (NLRB), has failed to distinguish employee misconduct in industrial settings from patient abuse in health care institutions when fashioning remedies for discriminatorily discharged union activists. The NLRB typically has ordered the reinstatement, with back pay, of the patient abuser as the patient's primary care-giver. This Article suggests that a front pay remedy is more appropriate to these cases because it protects the patient's right to be free from abuse without sacrificing employee unionization rights.     

Anatomy of an ADA case. Chatoff v. City of New York

This article addresses plaintiff and defense strategies in the context of an ADA case and is intended to serve as a ready reference to employer's counsel when faced with ADA litigation. In an ADA case, it is essential that counsel humanize the employer by keeping the "Our Business Supports Diversity" theme before the trier of facts at all times. This theme should be accompanied by the proposition that plaintiff's demands are not reasonable because they impose an undue burden on the employer or a risk to the safety of the employee or others in the workplace. It is also crucial for defense counsel to become familiar with the plaintiff's attorney's strategic considerations. ADA litigation strategy is illustrated by reference to Chatoff v. City of New York, a landmark ADA case instituted on behalf of the approximately 200,000 hearing-impaired residents of the City of New York, demanding equal and direct access to Emergency 911 services.     

我国地方政府雇员制之检讨与展望

政府临时雇员制度始于上个世纪50年代,＂辅助性＂、＂灵活性＂和＂临时性＂是该制度的重要特征。其根本目的是为了赋予行政首长的用人自主权,短期雇用人员以应付辅助性、临时性事务。然而,我国政府雇员完全是地方政府制度创新的结果,其在制度目的、适用范围、薪酬水平、考核与管理、权利义务等方面与发达国家或地区存在较大差异,甚至背离了制度本身的设计初衷。因此,需要在检讨现行地方政府雇员制的基础上,借鉴发达国家或地区的经验和做法,统一政府雇员法制,构建适合我国国情的政府雇员制。     

Whistleblower protection for nurses and other health care professionals

Because most employees in the United States, including health care professionals, are employed "at will" (which means their employment can be terminated for any reason or no reason, as long as the reason isn't illegal), retaliatory actions by employers toward employees who speak out (i.e., blow the whistle) are not uncommon. Additionally, the law protecting whistleblowing employees varies greatly depending on the state where the employee works or if he or she works for the federal government. This article examines when and under what conditions a nurse or other health care professional may be protected from having an adverse employment action taken against him or her for reporting such issues as patient safety violations or health care fraud. The authors offer issues a nurse or other health care professional should consider before making the decision to blow the whistle. Finally, the authors also discuss the remedies such as reinstatement, back pay, or other compensatory mechanisms that may be available to employees terminated for reporting wrongdoing.     

派遣劳动者职务侵权时的雇主责任

派遣劳动者作为劳务派遣关系中的一方主体,在执行职务的过程中致人损害时我国现有的雇主责任规则难以适用,由此,在未来的侵权责任法中对其雇主责任应规定如下:在外部责任的承担上,派遣单位和要派单位承担连带赔偿责任。在内部责任承担上,派遣劳动者承担重大过错责任;派遣单位与要派单位有约定的依约定承担,无约定或约定不明时,派遣单位承担选任雇员的过错推定责任、要派单位承担无过错责任。     

Insider trading and the public enforcement of private prohibitions: some complications in enforcing simple rules for a complex world

Accepting the argument made by Manne, Epstein and others that firms wishing to allow their employees to insider trade should be permitted to do so, this article shows that there is still a crucial role for government in regulating insider trading. In particular, allowing employees to profit by insider trading is a form of employee compensation that, in contradistinction from conventional forms of equity compensation, results in unknowable and effectively unlimited costs to the company. Since providing employee compensation in this form causes the company to lose control of its compensation expense, even if insider trading were legal, virtually every company would rely on conventional forms of employee compensation and prohibit its employees from insider trading. But, pace Manne, Epstein and others, companies lack the means to detect insider trading by their employees, and even when they do catch employees insider trading, companies can impose only mild contractual sanctions, generally not exceeding disgorgement of profits and dismissal. As a result, although an efficient agreement between a company and its employee would prohibit the employee from insider trading, this prohibition cannot be effectively enforced by the company. Government, with its usual law enforcement powers, is better able to detect insider trading and can impose more severe sanctions on violators, including criminal penalties. Government should thus enforce a ban on insider trading in those instances, which will be virtually all instances, in which a company prohibits its employees from insider trading. The efficient solution is thus a hybrid system of private prohibition and public enforcement. Such a system is not unusual but the norm. Employers prohibit employees from embezzling their money and stealing their property, and employees are subject to contractual sanctions and dismissal for violating these prohibitions, but we still need statutes against theft to generate an optimal level of deterrence. This is all the more true when the employee misappropriates information, which is much harder to detect than a theft of money or property.

     

论商业秘密的道德维度

商业秘密与社会道德超乎寻常地联系在一起。商业秘密因其经济合理性和社会妥当性 ,具有内在的道德性价值依据 ,才为人所认同与尊重 ,进而成为一种财产权。商业秘密产权的划定涉及到多元化的利益关系 ,商业秘密在公共知识与私有知识、排他性与共享性、雇主与雇员知识权利的划分等问题上纳入了道德的考量标准 ,使相互冲突的利益得以中和。商业秘密的财产法保护具有较大的局限性 ,将其纳入反不正当竞争法的保护范围 ,旨在通过维护竞争中的道德底线 ,构筑权利维护的第二防线。     

Employee Retirement Income Security Act of 1974: rules and regulations for administration and enforcement; claims procedure. Pension and Welfare Benefits Administration, Labor. Final regulation

This document contains a final regulation revising the minimum requirements for benefit claims procedures of employee benefit plans covered by Title I of the Employee Retirement Income Security Act of 1974 (ERISA or the Act). The regulation establishes new standards for the processing of claims under group health plans and plans providing disability benefits and further clarifies existing standards for all other employee benefit plans. The new standards are intended to ensure more timely benefit determinations, to improve access to information on which a benefit determination is made, and to assure that participants and beneficiaries will be afforded a full and fair review of denied claims. When effective, the regulation will affect participants and beneficiaries of employee benefit plans, employers who sponsor employee benefit plans, plan fiduciaries, and others who assist in the provision of plan benefits, such as third-party benefits administrators and health service providers or health maintenance organizations that provide benefits to participants and beneficiaries of employee benefit plans.     

The Swiss Business Foundation--a suitable estate planning vehicle for entrepreneurs?

Swiss ‘Business Foundations’ are certainly not themost obvious option for entrepreneurs wishing to conduct a businessor trade or to set up a holding structure. This article examinesselected legal and tax issues that arise when setting up sucha Swiss Business Foundation in order to determine in which circumstancesthese structures are suitable estate planning vehicles for entrepreneurs.     

Federal employees health benefits: payment of premiums for periods of leave without pay or insufficient pay. Final rule

The Office of Personnel Management (OPM) is issuing final regulations to rewrite certain sections of the Federal regulations in plain language. These final regulations require Federal agencies to provide employees entering leave without pay (LWOP) status, or whose pay is insufficient to cover their Federal Employees Health Benefits (FEHB) premium payments, written notice of their opportunity to continue their FEHB coverage. Employees who want to continue their enrollment must sign a form agreeing to pay their premiums directly to their agency on a current basis, or to incur a debt to be withheld from their future salary. The purpose of this final regulation is to rewrite the existing regulations to ensure that employees who are entering LWOP status, or whose pay is insufficient to pay their FEHB premiums, are fully informed when they decide whether or not to continue their FEHB coverage.     

How to reduce turnover by creating a positive work climate

Despite company attempts to reduce employee turnover by offering attractive salaries and benefits, Kushell notes that attrition continues at an alarming rate. He states that more than one of every three employees will change jobs over the next five years, a transition that will take its toll on company morale and productivity. The underlying factor, according to the author, is the quality of the working environment. A 1969 University of Michigan survey of 1,533 workers, at every occupation level, reported that all respondents ranked interesting work and authority to get the job done far ahead of good pay and job security. Sources of employee frustration include a stifling bureaucracy, excessive job expectations, and unsuitable jobs. The author suggests that top managers ask themselves whether they are missing out on or losing talented employees. If this is the case, there are several guidelines management should follow: improve communication between employees and top management; define expectations of the employee; and promote candor in the job interview. Kushell concludes that top executives can have an impact on turnover by paying attention to what employees really want rather than what management thinks they want.     

论大学生的劳动者性质——以“洋快餐兼职事件”为例

在洋快餐兼职的大学生应当具有劳动者身份。在实定法上,虽然《关于贯彻执行〈中华人民共和国劳动法〉若干问题的意见》似乎否认了这种劳动者资格,但通过条文的学理解释可以发现,真正的结论并非如此。在劳动法理论上,以大陆法系和英美法系的劳动者身份判定标准来检测,也可以认定兼职大学生的劳动者身份。从社会利益衡量视角看,否认大学生的劳动者资格并无公益上的立足点,且造成了劳动力市场的不公平竞争,因此兼职大学生的劳动者资格应当得到承认。     

我国部门货币及其发行的法律规制——兼评《非金融机构支付服务管理办法》

部门货币是指非银行部门通过各类储值卡的销售获得的资金。部门货币在我国经济生活中已经广泛存在,在促进经济发展的同时也造成了一些问题。《非金融机构支付服务管理办法》及其细则和《关于规范商业预付卡管理的意见》虽然对其进行了部分规范,但还很不完善,我们应当重视部门货币可能引起的金融风险问题。     

Insolvency and employment protection: the mixed effects of the Acquired Rights Directive

The statutory protection provided by European Community law to employees during transfers of undertakings and other restructurings has been criticised on the grounds that it undermines insolvency procedures and interferes with the ‘rescue’ process. We present an analysis which suggests that granting employees rights of this kind may be an efficient means of recognising their firm-specific human capital. Case-study evidence is then presented to show that while in some situations employment rights may obstruct reorganisations, in others they allow employee interests to be factored into the bargaining process in such a way as to enhance the survival chances of enterprises undergoing restructuring. The law functions best when effective mechanisms of employee representation are in place and when the conditions under which employees’ acquired rights can be waived in the interests of preserving employment are clearly specified.     

Systematic construction of lawfulness of processing employees’ personal information under China's personal information protection law

With the rapid development and widespread use of digital technologies in the workplace in China, employers’ right to monitor and direct employees has often been abused, raising a number of disputes over the infringement of employees’ right to privacy in terms of their personal information. China must urgently develop an appropriate approach to balancing these two conflicting interests. However, there is currently no coherent and uniform regime governing the protection of employees’ personal information in China. The primary legal source on which employers can rely is the latest version of the Chinese Personal Information Protection Law (PIPL), which offers three lawful bases for employers’ processing of their employees’ personal information. These bases are employee consent; “necessity for the conclusion or performance of an employment contract”; and “necessity for conducting human resource management.” Concerns have been expressed regarding the reasonableness and effectiveness of the three lawful bases under the PIPL. First, it is both legally and practically problematic for the PIPL to rely so heavily on employee consent. Second, it is unclear whether the other two lawful bases relieve employers of the duty of notification and, if so, how to safeguard employees’ right to know. Third, the ambiguous standard of “necessity” requires clarification.This article argues that China should adopt many elements from EU law, while US law should be only followed in relation to the standard of “necessity”. In relation to employee consent, the EU approach is preferable to the US approach. As the EU approach does not generally regard employees’ consent as a lawful basis for the processing of their information and uses the other two lawful bases as alternatives to employee consent, this approach better reflects the customary practices of employee subordination and employer control in China. In contrast, US law deems employee consent to be an absolute general defense to the tort of privacy violation and adopts an employer favoritism approach to balancing these two conflicting interests, which is not appropriate in the Chinese context. In relation to the scope of necessity, three tests taken from the EU and US approaches should be considered by the Chinese courts. In addition, when processing personal information based on the other two lawful bases, employers should safeguard employees’ right to know through collective contracts concluded with labor unions or employee representatives under the Chinese Labor Contract Law, which would effectively address employers’ arbitrariness. Ultimately, these changes would produce a better balance between employees’ right to privacy in terms of their personal information and employers’ need to subordinate and control employees.     

How Employers Profit from Digital Wage Theft Under the FLSA

This study describes three types of digital wage theft, as depicted in 330 cases litigated in federal and state court. The first, known as “rounding,” occurs when employers set their timekeeping software to alter employee punch time in a preset increment (typically moving punches to the nearest quarter hour). The second, “automatic break deductions,” involves subtracting a preset increment of time (usually thirty minutes) from employee hours to reflect their scheduled meal break, regardless of whether the break is taken. Both such practices occupy a legal gray zone under the Fair Labor Standards Act (FLSA). The third, known as “time shaving,” occurs when supervisors alter employee time records to reduce recorded hours. Although more clearly prohibited under existing rules, time shaving cases can be difficult to certify as collective actions beyond a single worksite. Plaintiffs seeking to recover lost wages in these cases face highly uncertain prospects in litigation. Outcomes depend on complex questions of fact and unpredictable judicial rulings that turn on implied notions of fairness. Even in successful cases, employers keep most of the lost wages because damages are only awarded to the small fraction of employees who opted in to the litigation. In sum, this article illustrates how federal rules fail to deter employers from adopting these practices. It concludes by recommending several changes to federal law.     

Employee Retirement Income Security Act of 1974; rules and regulations for administration and enforcement; claims procedure--Department of Labor. Notice of proposed rulemaking

This document contains a proposed regulation revising the minimum requirements for benefit claims procedures of employee benefit plans covered by Title I of the Employee Retirement Income Security Act of 1974 (ERISA or the Act). This proposed regulation would establish new standards for the processing of group health disability, pension, and other employee benefit plan claims filed by participants and beneficiaries. In the case of group health plans, as well as certain plans providing disability benefits, the new standards are intended to ensure more timely benefit determinations, improved access to information on which a benefit determination is made, and greater assurance that participants and beneficiaries will be afforded a full and fair review of denied claims. If adopted as final, the proposed regulation would affect participants and beneficiaries of employee benefit plans, plan, fiduciaries, and others who assist in the provision of plan benefits, such as third-party benefits administrators and health service providers or health maintenance organizations that provide benefits to participants and beneficiaries of employee benefit plans.