Question raised

Female employees in the "three periods" refer to those who are in the "pregnancy, childbirth, and lactation period". When female employees are in the "three phases", employers should provide special protection and treatment to female employees in accordance with the Labor Law, Labor Contract Law, Law on the Protection of Women's Rights and Interests, Special Provisions on the Labor Protection of Female Employees, and other legal provisions. Can "Phase III" female employees be resettled in the event of company dissolution, and how to provide special protection for female employees during the resettlement process.

Lawyer analysis

When it comes to the placement of female employees in the "three phases", companies often think of Article 42 of the Labor Contract Law, which stipulates that if a female employee is in the "three phases", the company shall not unilaterally terminate the labor contract on the grounds of no fault dismissal or economic layoffs. Based on this article, it is assumed that the company cannot place female employees in the "three phases" when dissolved. But in reality, the concepts of dissolution and termination have been confused. The dissolution of a company is a statutory circumstance for the termination of a labor contract. In this case, the labor contract of the "three period" female employee should also be terminated. Termination is different from termination, and the concepts and applicable situations of the two are also different.

There are no regulations at the national level regarding the placement of female employees in the "three phases" of company dissolution, but some provinces and cities have made provisions that tend to protect female employees. According to the notice issued by the Jiangsu Provincial Labor Dispute Arbitration Commission on the issuance of the "Minutes of the Seminar on Labor Arbitration Cases in Jiangsu Province" (Su Labor Arbitration Commission (2007) No. 1), in order to protect the legitimate rights and interests of female employees and based on the principle of benefiting workers, employers should pay female employees' living expenses, maternity leave wages, maternity expenses, etc. in a lump sum for three periods. According to the Interim Measures for Employee Maternity Insurance in Chongqing Municipality (Order No. 181 of the Chongqing Municipal People's Government), if an employer is lawfully declared revoked, dissolved, bankrupt, or terminated for other reasons, it shall reserve maternity insurance premiums for pregnant female employees at the level of maternity insurance benefits paid by the city's per capita maternity insurance fund in the previous year during asset liquidation.

From the above local regulations and judicial precedents, it can be seen that when a company is dissolved, there are completely opposite views on how to arrange for female employees in the "three phases". For example, in the case of (2019) Yue 01 Min Zhong 21681, the Guangzhou Intermediate People's Court held that the company and the employee had lawfully terminated their labor relationship, and the company did not have any fault in failing to pay social security for the employee in accordance with the law. The employee's claim that the company should pay them maternity allowance and maternity medical expenses lacks factual and legal basis. In the case of Su Zhong Min Zhong Zi No. 00240 (2015), the Suzhou Intermediate People's Court held that since the company terminated the labor contract with the employee who was already 2 months pregnant, the company, as an employer, should pay the female employee for living expenses, maternity leave pay, maternity leave expenses, etc. during the "three periods". (2) The regions that support the protection of female employees' tendencies in the "three phases" have not made clear regulations on the calculation standards for related expenses during the "three phases".

In summary, the recommendations for the placement of female employees in the "third phase" of the company in the event of dissolution are as follows:

Although the dissolution of an employer is a statutory circumstance for termination, it is recommended that the company and the "Phase III" female employees terminate their labor contracts through mutual agreement and sign a "package" agreement for the termination of labor contracts through mutual agreement;

2. Before resettling female employees in the "third phase", fully understand local regulations (such as additional protection for female employees, maternity insurance policies, wage payment regulations) and judicial precedents. Starting from June 30, 2022, Zhejiang Province has clarified that flexible employees can also receive maternity allowances. In this case, the company does not need to pay maternity allowances to female employees in the "third phase".