When an employee's labor relationship is transferred, does the original employer need to pay economic compensation?
2025 02/19
According to Article 10 of the Implementing Regulations of the Labor Contract Law:"If a worker is arranged to work in a new employer from the original employer not due to his own reasons,the length of service of the worker in the original employer shall be combined and calculated as the length of service in the new employer.If the original employer has already paid economic compensation to the worker,when the new employer calculates and pays economic compensation upon the legal termination or dissolution of the labor contract,the length of service of the worker in the original employer shall no longer be counted."
Many employers believe based on this that the economic compensation for the termination of the labor contract is compensation for the worker's lack of wage income during the period of unemployment.Since the worker's labor relationship is transferred to a new employer and there is no unemployment,there is no need to pay economic compensation.However,this is not the case in practice.
According to Article 46 of the Labor Contract Law:"In any of the following circumstances,the employer shall pay economic compensation to the worker:...(2)The employer proposes to terminate the labor contract to the worker in accordance with Article 36 of this Law and the labor contract is terminated upon reaching an agreement with the worker;...(6)The labor contract is terminated in accordance with Items 4 and 5 of Article 44 of this Law;..."Therefore,if an enterprise terminates the labor contract with an employee upon reaching an agreement through consultation or terminates the labor contract in accordance with the law due to the enterprise's decision to dissolve in advance,it shall pay economic compensation in accordance with the law.
Combined with the provisions of Article 10 of the Implementing Regulations of the Labor Contract Law,it can be seen that if an enterprise terminates the labor contract with an employee and at the same time arranges for the employee to work in a new enterprise,economic compensation does not need to be paid only when the new employer agrees to assume the length of service of the employee in the original enterprise,that is,the new employer needs to agree.
We can also draw this conclusion from the perspective of civil law theory.According to Article 555 of the Civil Code:"With the consent of the other party,a party to a contract may assign all of its rights and obligations under the contract to a third party."When the new employer assumes the length of service of the original employer,it actually assumes the obligation to pay a part of the economic compensation that should have been paid by the original employer when economic compensation needs to be paid in the future,that is,it assumes a part of the obligations of the original employer.Therefore,the consent of the new employer is required.
As an important participant in this process,does the worker have the right to choose?We believe so.
First of all,the transfer of the labor relationship means that the worker needs to terminate the labor contract with the original employer and sign a labor contract with the new employer.Whether it is termination or signing,as one of the main parties to the labor contract,the worker needs to agree.
Secondly,obtaining economic compensation is a legal right granted to workers by the Labor Contract Law.If this right is waived,it obviously requires the explicit expression of the worker's intention.
Thirdly,as mentioned above,when the new employer assumes the length of service of the original employer,the original employer transfers the obligation to pay economic compensation to the new employer,and what is transferred is the worker's right to obtain economic compensation.At this time,the consent of the worker should be obtained.
Based on the above analysis,we can know that the implementation of Article 10 of the Implementing Regulations of the Labor Contract Law requires the joint consent of the worker and the new employer.Of course,in real life,many workers,in order to avoid unemployment,and since the new employer and the original employer are often affiliated companies,both the worker and the new employer agree to transfer the worker's length of service to the new employer.In practical operation,the following two points need to be noted:
The first point:If the original employer does not pay or fully pay economic compensation to the employee but transfers the employee's labor relationship,length of service,etc.to the new employer,the unanimous consent of the employee and the new employer is required,and a tripartite agreement should be signed.
The second point:In the tripartite agreement,it is necessary to clearly stipulate that the original employer terminates the labor contract and does not need to pay economic compensation,and the new employer clearly agrees to assume the length of service of the original employer.
In conclusion,when an employer transfers a worker to a new employer in accordance with the provisions of Article 10 of the Implementing Regulations of the Labor Contract Law,the premise for the new employer to assume the length of service is that both the new employer and the worker agree.Otherwise,when the employer terminates the labor contract with the worker,it needs to pay economic compensation in accordance with the law.
Many employers believe based on this that the economic compensation for the termination of the labor contract is compensation for the worker's lack of wage income during the period of unemployment.Since the worker's labor relationship is transferred to a new employer and there is no unemployment,there is no need to pay economic compensation.However,this is not the case in practice.
According to Article 46 of the Labor Contract Law:"In any of the following circumstances,the employer shall pay economic compensation to the worker:...(2)The employer proposes to terminate the labor contract to the worker in accordance with Article 36 of this Law and the labor contract is terminated upon reaching an agreement with the worker;...(6)The labor contract is terminated in accordance with Items 4 and 5 of Article 44 of this Law;..."Therefore,if an enterprise terminates the labor contract with an employee upon reaching an agreement through consultation or terminates the labor contract in accordance with the law due to the enterprise's decision to dissolve in advance,it shall pay economic compensation in accordance with the law.
Combined with the provisions of Article 10 of the Implementing Regulations of the Labor Contract Law,it can be seen that if an enterprise terminates the labor contract with an employee and at the same time arranges for the employee to work in a new enterprise,economic compensation does not need to be paid only when the new employer agrees to assume the length of service of the employee in the original enterprise,that is,the new employer needs to agree.
We can also draw this conclusion from the perspective of civil law theory.According to Article 555 of the Civil Code:"With the consent of the other party,a party to a contract may assign all of its rights and obligations under the contract to a third party."When the new employer assumes the length of service of the original employer,it actually assumes the obligation to pay a part of the economic compensation that should have been paid by the original employer when economic compensation needs to be paid in the future,that is,it assumes a part of the obligations of the original employer.Therefore,the consent of the new employer is required.
As an important participant in this process,does the worker have the right to choose?We believe so.
First of all,the transfer of the labor relationship means that the worker needs to terminate the labor contract with the original employer and sign a labor contract with the new employer.Whether it is termination or signing,as one of the main parties to the labor contract,the worker needs to agree.
Secondly,obtaining economic compensation is a legal right granted to workers by the Labor Contract Law.If this right is waived,it obviously requires the explicit expression of the worker's intention.
Thirdly,as mentioned above,when the new employer assumes the length of service of the original employer,the original employer transfers the obligation to pay economic compensation to the new employer,and what is transferred is the worker's right to obtain economic compensation.At this time,the consent of the worker should be obtained.
Based on the above analysis,we can know that the implementation of Article 10 of the Implementing Regulations of the Labor Contract Law requires the joint consent of the worker and the new employer.Of course,in real life,many workers,in order to avoid unemployment,and since the new employer and the original employer are often affiliated companies,both the worker and the new employer agree to transfer the worker's length of service to the new employer.In practical operation,the following two points need to be noted:
The first point:If the original employer does not pay or fully pay economic compensation to the employee but transfers the employee's labor relationship,length of service,etc.to the new employer,the unanimous consent of the employee and the new employer is required,and a tripartite agreement should be signed.
The second point:In the tripartite agreement,it is necessary to clearly stipulate that the original employer terminates the labor contract and does not need to pay economic compensation,and the new employer clearly agrees to assume the length of service of the original employer.
In conclusion,when an employer transfers a worker to a new employer in accordance with the provisions of Article 10 of the Implementing Regulations of the Labor Contract Law,the premise for the new employer to assume the length of service is that both the new employer and the worker agree.Otherwise,when the employer terminates the labor contract with the worker,it needs to pay economic compensation in accordance with the law.
Related recommendations
- The Copyright Distribution Model and Key Compliance Points in the 10-billion-yuan Short Drama Market
- When an employee's labor relationship is transferred, does the original employer need to pay economic compensation?
- What Shareholders Must Know! A Guide to the Exercise Procedures of Shareholders' Right to Know and Judicial Remedies
- The Legal Secrets Behind the Box Office of "Ne Zha" Exceeding Ten Billion Yuan: How Does IP Protection Contribute to the Myth in the History of Cinema?
