新創企業不可不知!招募員工須小心的兩項勞動法律地雷
Published date | 07 March 2024 |
Subject Matter | Employment and HR, Law Practice Management, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Employee Rights/ Labour Relations, Recruiting |
Law Firm | Xiri Attorneys |
Author | Ms Sabine Lin and Peter Lin |
創業風潮席捲世界,新創企業扁平、透明、開放的文化以及多元的薪酬福利,吸引許多有志之士和莘莘學子加入。打開人才招募頁面,不難發現新創企業在工作時間、穿著、補貼、員工旅遊等方面相比傳統企業具有更大彈性和吸引力。但彈性的背後可能藏有法律風險,新創企業可能誤觸法網而遭致勞動主管機關罰鍰。因此,本文將從勞動法的觀點提醒創業家在「招募」階段,可能會不小心踩到的法律地雷。
地雷一:勞動條件的內容及薪資範圍的揭露要求
新創企業在勞動方面首先要建立的觀念是:勞動基準法和勞動相關法令不是從勞工到職時才開始規範公司,而是從招募階段就已開始!新創企業初期沒有人資、法務角色的時候,常會請同仁透過BBS、人力資源網站、LinkedIn等各種方式徵才。然而,發表徵才廣告的同仁未必熟悉勞動法規,因此在徵才文中可能出現違法的勞動條件,例如時薪或月薪低於基本工資、誤以為公司適用責任制、薪資未達4萬元卻未揭露薪資範圍等,導致新創企業違反勞動基準法、就業服務法相關規定而受到裁罰。舉例而言,給薪低於基本工資的罰鍰是新臺幣2萬元以上、100萬元以下,而且會公布公司名稱與負責人的姓名。又如薪資未達4萬元卻未揭露薪資範圍,罰鍰是6萬以上、30萬以下,企業不可不慎。
另外雇主招募或僱用員工,依據就業服務法第五條第二項第一款規定,不得有「不實之廣告或揭示」;同項第六款則規定,不得有「提供職缺之經常性薪資未達新臺幣四萬元而未公開揭示或告知其薪資範圍」。因此,新創企業在徵才廣告發佈前應全面檢視內容是否真實、正確且無違法情事,特別是當職缺的經常性薪資未達新臺幣4萬元時,不得只寫「面議」,而應依據勞動條件從下列三種方式擇一撰寫:
- 薪資數額(例如:月薪30,000元)
- 薪資數額區間(例如:月薪在32,000到38,000元之間)
- 最低可得數額(例如:月薪在30,000元以上)再加上核薪條件的具體說明
另外也提醒新創公司:民國111年起基本工資已經調漲成月薪25,250元,時薪168元,應盡快確認目前的職缺公告有沒有漏未更新的情形,避免受罰。
地雷二:留意就業歧視規定
勞動法令要求雇主不得對求職者予以歧視的保護規定,散見在不同的法令中,比較主要的包括下列幾項:
- 一般概括規定:就業服務法第五條第一項「為保障國民就業機會平等,雇主對求職人或所僱用員工,不得以種族、階級、語言、思想、宗教、黨派、籍貫、出生地...
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