Difficulties and countermeasures of applying labor law to senior management personnel of the company

【Abstract】In recent years， there have been more and more labor disputes between executives and companies. The most fundamental reason is that the top management of a company has the attributes of both workers and employers， and relevant laws and regulations such as labor law do not distinguish the top management from ordinary workers.

【Key words】senior management； subordination； labor antagonism

【作者簡介】秦世云，女，汉族，山东济南人，青岛大学，硕士研究生在读，研究方向：民法。

Preface

“Labor law” produced a lot of distortion phenomenon in actual application， for example sky-high price economy compensates， the dispute of overtime pay. Since the promulgation of the labor contract law in 2008， the number of cases involving company executives demanding double wages has been increasing year by year. The legitimacy of labor law tilted protection legislation should be based on the correct identification of the subject of protection.

1. definition and attributes of senior management personnel of the company

1.1 definition of senior management personnel of the company

At present， there is no clear definition of the scope of senior management in both theory and practice. The senior managers discussed in this paper do not include the members of the board of directors and board of supervisors who have operation entrustment contract relationship and supervision contract relationship with the company. It only refers to the senior managers who have employment relationship with the company.

1.2 The attributes of senior management in a company

First， executives have two attributes of employees： first， their personality is in a subordinate position； Second， they are economically subordinate. Secondly， company executives have a natural employer attribute， reflected in the following three aspects： first， company executives have the characteristics of agents or even legal representatives； Second， the company executives have the right of operation management and command； Third， executive compensation is related to corporate performance.

2. The qualification of the subject of labor relations of the companys senior management personnel is recognized

There are three theories on the subject positioning of company executives in labor relations. One is the employee attribute theory. Second， is dual attribute theory. Three is the typology research said. The “subordination” is the core standard to determine whether there is a labor relationship between the companys senior management and the company， and the “control” strength to stratify the companys senior management.

3. the company senior management personnel applies the labor law the difficult position

First， at present， it is difficult to require the companys senior managers to implement the same strict working hours system as ordinary workers. Second， once the companys senior managers deliberately do not sign labor contracts by taking advantage of their positions， the company will face the risk of paying twice as much salary. Third， the annual salaries of senior executives are very high， and if the company pays economic compensation to senior managers according to the standards of the labor contract law， it is often much higher than that of ordinary workers.

4. Explore the countermeasures for senior management personnel to apply labor laws

First， Categorize the companys senior management personnel who belong to the workers and formulate special rules to make them apply labor law differently. Second we should consider the idea of labor stratification in the legislative reform of the labor law. Third， in view of the different situations in which the companys senior managers apply labor laws and regulations， it is necessary to implement the method of differentiated application of labor law. Last， coordinating the legislation and application of labor law and company law is also an indispensable way to solve the legal application dilemma of senior managers.

5. closing words

The application of labor law to senior management is essentially a subdivision of labor law. The key to solve the problem is to recognize the different characteristics of the companys senior managers， so as to subdivide them， and remove some of the companys senior managers from the scope of application of labor law， and set special legal rules for other companys senior managers to apply labor law in a differentiated way.

References：

[1]Dong baohua. Disputes and reflections on labor contract legislation [J].Shanghai peoples publishing house，2011.

[2]Xie zengyi. Determination of labor status of company executives and its legal rules[J].China law net.