企业生产自救的十八般武器

Original 张根旺倪娴侠中伦视界 2022-08-15

经历了春节及延迟复工期间政策密集发布和各种略显混乱的解读后，全国各地（湖北省除外）的大部分企业都在2020年3月2日迎来了全面的复工。复工前，企业焦虑的是什么时候能复工；复工以后，企业又面临成本居高不下、订单锐减的局面。国家统计局2月29日发布的数据显示，2月中国制造业采购经理指数（PMI）为35.7%，比上月大幅下降14.3个百分点；非制造业商务活动指数为29.6%，比上月下降24.5个百分点。随着海外疫情的扩散和加剧，不但中小微企业面临严重的挑战，规模较大的外资企业也必须要考虑生产自救。笔者结合国家法律法规、疫情期间的政策和多年的工作经验，向广大的企业提出生产自救的十八个方案：

After a flurry of policy announcements and slightly confusing interpretations during the Spring Festival and the delayed work resumption period, most companies across the country (with the exception of Hubei Province) resumed full operation and production on 2 March 2020. Before the actual resumption of work, companies were anxious about when the employees can return to work; after the resumption, companies are worried about high costs of human resources and sharp decline of orders. According to data released by the national bureau of statistics on 29 February, China's PMI of manufacturing sector was 35.7% in February, 14.3% down from the index in January; the non-manufacturing business activity index was 29.6%, 24.5% down from that in January. With the spread of the COVID-19 overseas, not only micro, small and medium enterprises (MSMEs), but also large foreign-invested companies, are facing serious challenges. In combination with the policies released during this special period and our rich practice experience, we propose the following 18 tips for enterprises to survive the epidemic:

1. 降薪

Cut Salary

在遭遇疫情这样一个生产经营危机的情况下，企业可以通过降低职工薪酬的方式削减企业的人力资源成本，这个方式对于缓解企业的现金流有立竿见影的效果。但是，因为职工的薪资涉及职工的切身利益，根据劳动法律，企业不能单方面降低职工的薪酬，而是需要通过动员、沟通等方式与职工协商并达成一致。共克时艰以劳资双方互信为前提，不合法的调薪方式可能导致企业面临更大的危机，企业应避免为之。

Under such a production and operation crisis, companies can reduce the cost of human resources by cutting employee’s salary. It will achieve an immediate relief of the tension of the companies’ cash flow. However, as the salary is vital to the employee, a company cannot reduce the salary of its employees at will according to labor laws; instead, it should negotiate with employees and reach agreements with them. Illegal salary reduction may lead to greater crisis for companies, which, of course, should be avoided.

2. 缩短工时

Shorten the Working Hours

在2008年金融危机时，很多外资企业都将“做五休二”变更为“做四休三”或“做三休四”，与此同时，企业也将职工的工资作相应的减少。这个方式在当前困难的经济形势下，仍然值得借鉴。

缩短工时的另一种方式是缩短每一个工作日的工作时间，由每日工作8小时减少为5小时或6小时，企业再根据减少工时的比例相应降低职工工资。与减少工作日相比，缩短每日的工作时间在当下未必是最优的选择，毕竟，减少工作日可以节约路途时间和成本，避免人员流动和人员集中，对控制疫情有很大的帮助。

During the financial crisis in 2008, many foreign-invested companies changed their workdays from "work five days and rest two days" to "work four days and rest three days" or "work three days and rest four days". At the same time, the companies also reduced the salary of employees accordingly. This approach is still workable in the current frustrating economic reality.

Another way is to shorten the working hours of each workday, from standard 8 hours a day to 5 hours or 6 hours a day, and then the companies may reduce the salary of the employees on a pro-rata basis. Reducing the number of working hours a day may not be the best option at present, compared with reducing the number of working days. After all, reducing working days can save commuting time and cost, avoid population mobility and gathering, and control the spread of COVID-19.

3. 改变薪资结构

Change the Salary Structure

目前，大多数企业在薪资发放方面依然采用固定金额的结构，固定金额不利于调动员工的工作积极性。困难时期，企业的发展及效益存在极大的不确定性，企业可考虑将单纯的固定薪资结构变更为基本工资和绩效工资相结合的薪资结构，其中，绩效工资的考核因素应包括企业的效益、部门工作的完成情况和职工个人的工作表现。新的薪资结构一方面可以降低企业的成本压力，另一方面也可以刺激职工的生产积极性，将企业的命运和职工的收入捆绑在一起，实现企业和职工双赢，避免单纯的降薪引发职工的不满。

At present, most companies still adopt the fixed amount salary mode, which is not conducive to mobilizing the initiative of employees. In this difficult period, the future interests companies can earn in this year is highly uncertain, thus, companies may consider changing the fixed salary mode into a salary structure combining basic salary and performance salary. The assessment factors of performance salary should include the economic performance of the company, the completion of departmental work targets, and the performance of the individual employee. On the one hand, the new salary structure can address the cost pressure of the company; on the other hand, it can also mobilize the enthusiasm of employees, to achieve a win-win situation for both the company and the employees, and to reduce the frustration of the employees from salary cut.

4. 远程办公

Work from Home

疫情期间，中央和地方政府出台了一系列政策，企业的复工时间被推迟，有些企业为了防止疫情的扩散，进一步推迟了复工的时间。疫情解除的时间暂无法确定，但是企业的生产经营难以中断，因此，一些有条件的企业已经采取了远程办公的模式，要求职工在家办工。远程办公可以在一定程度上帮助企业削减交通、午餐等实报实销类补贴。另外，远程办公也会减少水电的使用，在一定程度上进一步降低企业成本。并且，企业也可以减少办公场所的面积，从而降低房租等间接的人工成本。当然，远程办公对于企业的管理也提出了一些挑战，包括考勤管理、绩效考核等方面，企业在制定远程办公的相关政策时需要谨慎考虑，在降低成本的同时提高职工的工作效率。

During the outbreak of COVID-19, the governments introduced a series of policies to delay the resumption of work. In order to prevent the spread of the virus, some companies further delayed the resumption of work time out of their free will. When the COVID-19 outbreak can be over is uncertain, but the companies’ production and operation should not be interrupted. Therefore, some companies adopted the mode of working from home. Working from home can help companies reduce some reimbursable subsidies such as transportation and lunches. In addition, it will reduce some overhead expenses, such as water and electricity fees in the office. Meanwhile, companies can save some office rental due to less employees working in the office. Of course, working from home also poses some challenges to the management of the companies, including attendance management, performance appraisal, etc.. Thus, the companies need to carefully formulate policies related to the new mode of work, to reduce costs and improve the work efficiency simultaneously.

5. 停工停产

Halt Operation

在疫情防控的特殊时期，企业因无法复工、订单减少等原因，可以采取停工停产的措施。根据《工资支付暂行规定》第十二条，非因职工原因造成企业停工、停产在一个工资支付周期内的，企业应按劳动合同规定的标准支付职工工资；超过一个工资支付周期的，企业向职工支付生活费。根据各地的规定，生活费的支付标准通常为当地最低工资的70%-80%。需要注意的是，企业适用停工停产的对象应当是本企业的全体职工或某一部门的全体职工，而不能选取特定的个别职工。

In this special period of COVID-19, companies may take measures to stop operation and production due to the reasons such as inability to resume work or decline of orders. According to Article 12 of the Interim Provisions on the Payment of Remuneration, where an employer's shutdown or production halt lasts within an interval of payment of remuneration not owing to employees, the employer shall pay remuneration to employees at the standard as stipulated in the labor contract; Where such shutdown or production halt lasts more than an interval of payment of remuneration, the employer shall pay employees living expenses. According to local regulations, living expenses are usually paid at 70-80% of the local minimum wage. It is worth noting that, the shutdown plan should apply to all employees of the company or all employees of it’s one department, instead of some specific individual employees.

6. 中止履行劳动合同

Suspend the Employment Contract

20世纪80年代，停薪留职在计划经济向市场经济转型的过程中曾大量出现。停薪留职期间，职工无需向企业提供劳动，企业也无需向职工支付工资。从法律角度来看，停薪留职在某种程度上可以理解为中止履行劳动合同。企业在订单减少、开工率不足的情况下，可以借鉴此类操作方式，与部分职工协商签署相关协议，实现以最低成本维持特殊时期的劳动关系，待企业经营好转以后再安排职工复岗。

尽管多地的高院在相应的“司法解释”中认定疫情构成商事合同履行中的不可抗力，也有专家认为疫情构成劳动法意义上的不可抗力，但笔者认为，在企业已经普遍复工的情况下，仅仅以疫情作为不可抗力、拒不支付工资的理由可能难以成立，毕竟，不可抗力进而免除履行自身义务（支付工资）也取决于不可抗力对履行合同造成的影响程度，不能以偏概全。

In the 1980s, “retaining job position without pay” mode was very popular in the transition from a planned economy to a market economy. During the job retention period, the employee did not provide service to the company, and the company also did not need to pay salary to the employee. From the perspective of the law, “retaining job position without pay” can be understood, to some extent, as the suspension of the labor contract. In the current difficult times, the company may refer to this kind of operation, negotiating with some employees to suspend the employment contract, to maintain the labor relations with lowest cost. The company may request the employees to resume work when the economy recovers.

7. 裁员

Lay off

虽然政府出台了大量政策减免税收、社会保险费用，希望维护劳资关系的稳定，减少企业的裁员。但有些企业采取相应措施后，可能仍需要通过裁员的方式降低企业的人工成本，实现自救。在疫情下，企业适用经济性裁员仍然需要满足法定条件和法定程序，尤其是在法定程序方面，企业需要向劳动行政部门备案。囿于疫情期间的政策方向，企业在制定裁员方案时应当尽量谨慎并征求多方意见，尤其是需要严格履行法定程序，避免因为裁员给企业带来舆论危机和品牌危机。

The government has adopted measures to cut taxes and social insurance fees, to maintain the stability of labor relations and reduce layoffs. However, after taking relieving measures, some companies may still need to alleviate their burden by laying off employees. Companies still need to meet legal requirements and procedures for economic layoffs during the epidemic. It is worth noting that, the company needs to file with the labor administrative department if it wants to conduct an economic lay off. Under the policy directions during this special period, companies should be much careful and solicit opinions from stakeholders when making layoff plans. In particular, companies should strictly follow legal procedures to avoid public crisis and brand crisis caused by layoffs.

8. 安排假期

Arrange Holidays

人力资源社会保障部、全国总工会、中国企业联合会/中国企业家协会、全国工商联在2020年2月7日联合发布的《关于做好新型冠状病毒感染肺炎疫情防控期间稳定劳动关系支持企业复工复产的意见》中提出，企业可以与职工协商优先使用带薪年休假、企业自设福利假期等各类假期。笔者认为，根据《职工带薪年休假条例》和《企业职工带薪年休假实施办法》，企业有权自主安排职工使用带薪年休假。但是对于无薪假期，企业应与职工协商一致，而不能擅自单方安排职工休无薪假期。

On February 7, 2020, the Human Resources and Social Security Ministry, the National Federation of Trade Unions, the China Company Confederation/China Entrepreneurs Association and the National Federation of Industry and Commerce, jointly issued the Opinions on Stabilizing Employment Relations and Supporting Companies to Resume Production during the Prevention and Control of COVID-19, which provides that companies may negotiate with employees to take annual leave, benefit leave and other leaves at first. We are inclined to think that, according to the Regulations on Paid Annual Leaves of Employees and the Implementing Measures for the Paid Annual Leave of Employees, companies have the right to arrange employees to take paid annual leave. But for unpaid leave, no company can arrange employees to take unpaid leave without the consent of employees.

9. 调剂休息日，先休假后补班

Adjust Rest Days

2月3日，北京市人民政府办公厅《关于进一步支持打好新型冠状病毒感染的肺炎疫情防控阻击战若干措施》提出了“实施灵活用工政策，允许企业综合调剂使用年度内的休息日”的指导意见。2月7日，《上海市全力防控疫情支持服务企业平稳健康发展的若干政策措施》提出“综合调剂使用年度内休息日”这一方式稳定工作岗位。深圳市、江苏省等地也都提出了类似的书面倡议。这一举措可以通俗的称为“先休假后补班”，让企业在没有申请以年为统计周期的综合工时制的情况下，将全年度的周末休息日调剂到疫情期间使用，这样可以减轻企业的用工成本，也能够让职工在疫情期间带薪在家休息。可以预见的是，2020年可能有很多企业实施“做六休一”的作息制度。

On February 3, the general office of the Beijing Municipal People's Government issued a guideline on "implementing flexible employment policies and allowing companies to comprehensively adjust the use of rest days during the year" in the Measures to Further Provide Support in the Battle for Prevention and Control of the COVID-19 Outbreak. On February 7, “comprehensive adjustment of annual rest days” was put forward in Several Policies and Measures to Prevent and Control the COVID-19 and Support the Stable and Healthy Development of Service Companies in Shanghai. Jiangsu Province and Shenzhen also promulgated similar policies. This measure allows companies to transfer the whole year's rest days to this period of COVID-19 outbreak without applying for the comprehensive working hour system with annual statistical cycle, so as to reduce the companies’ labor costs and allow employees to rest at home during the epidemic. It is foreseeable that in 2020, many companies may adopt the "work six days and rest one day" mode.

10. 申请特殊工时

Apply for Comprehensive Working Hour System

我国的工时制度主要分为三类，即标准工时制、综合工时制和不定时工时制。综合工时制和不定时工时制均需要在获得劳动部门的行政审批后才能得以施行。疫情期间，诸如餐饮、旅游等行业几乎没有业务，职工自然也没有工作可做，在这种情况下，笔者建议企业可以向相关部门申请综合工时制，以减轻疫情期间及疫情结束后的用工成本。近期，北京、上海等多地政府也出台了一系列的政策，简化综合工时制的审批程序，给因疫情影响而临时采取综合工时制的企业提供便利。

We have three working hours systems in China, namely standard working hours, comprehensive working hours, and flexible working hours. Neither the comprehensive working hours system nor the flexible working hours system can be implemented in a company until it is approved by the labor authorities. During this epidemic, sectors such as catering and tourism almost have no business, and employees have no work to do. Thus, we suggest the company apply for comprehensive working hours system, to reduce the labor costs during and after the epidemic. Recently, Beijing, Shanghai and other local governments have also introduced a series of policies to simplify the approval process of the comprehensive working hours system, providing convenience for the companies temporarily adopting the comprehensive working hours system due to the impact of the virus outbreak.

11. 免缴、缓缴社会保险

Exempt and Defer Contribution of Social Security Premium

2月20日，人力资源和社会保障部等三部门下发《关于阶段性减免企业社会保险费的通知》（以下简称“《通知》”），《通知》规定，自2020年2月起，各省、自治区、直辖市（除湖北省外）及新疆生产建设兵团可根据受疫情影响情况和基金承受能力，免征中小微企业三项社会保险单位缴费部分，免征期限不超过5个月；对大型企业等其他参保单位（不含机关事业单位）三项社会保险单位缴费部分可减半征收，减征期限不超过3个月。《通知》明确，自2020年2月起，湖北省可免征各类参保单位（不含机关事业单位）三项社会保险单位缴费部分，免征期限不超过5个月。

On 20 February, the Ministry of Human Resources and Social Security and two other ministries released the Notice on Reduction of Enterprise Social Security Premium Contribution in Phases (“Notice”). According to the Notice, with effect from February 2020, MSMEs outside of Hubei Province are exempt from paying three corporate social insurance premiums for no more than five months, and for large companies outside of Hubei Province, the payment of the three social insurance premiums will be halved for no more than three months. The Notice also states that with effect from February 2020, all companies in Hubei Province are exempt from paying the three social insurance premiums for no more than five months.

另外，受疫情影响生产经营出现严重困难的企业，还可申请缓缴社会保险费，缓缴期限原则上不超过6个月，缓缴期间免收滞纳金。

In addition, enterprises, which encounter harsh difficulties in their production and business operation due to the epidemic, may apply for deferred contribution of social insurance premiums. The deferred period shall in principle not exceed six months, and late payment fine shall be exempt for the deferred period.

因此，企业可以根据自身的情况，依照相关规定，申请减免社会保险费用，以降低企业的用工成本。

Therefore, the enterprise can apply for reduction or exemption of social insurance premiums according to the relevant policies based on its own situation, which can help the enterprise to reduce labor costs.

12. 缓缴住房公积金

Defer Contribution of Housing Fund

根据各地的政策，企业还可以通过缓缴住房公积金的方式来缓解企业现金流的压力。例如，在上海，凡受疫情影响的企业都可申请缓缴2020年2月至2020年6月的住房公积金。对企业而言，对申请缓缴的企业不做欠缴处理，也不影响企业征信；对职工而言，企业缓缴期间，职工的缴存时间连续计算，不影响职工提取和住房公积金贷款权益。

As per local policies, enterprises can also ease its cash flow pressure through deferred contribution of housing fund. For example, in Shanghai, an enterprise that is affected by the epidemic can apply for deferred contribution of housing fund for the period of February to June 2020. As to the enterprise, the application of deferred contribution will not be regarded as underpayment of housing fund, and the corporate credit will neither be affected; As to the employee, the contribution period will be calculated continuously during the period of deferred contribution of the enterprise, which will not affect the employee’s rights of withdrawing the housing fund and applying for housing fund loan.

13. 申请补贴

Apply for Subsidy

疫情期间，各地政府向企业推出了一系列补贴政策，如一次性吸纳就业补贴、稳岗补贴、岗位补贴等，笔者大致归纳和总结各地主要实施的该类临时性补贴政策如下：

During the epidemic, various local governments rolled out a series of subsidy policies tailored for the epidemic-affected enterprises, such as One-Off Employment Subsidy, Employment Stabilizing Subsidy, Employment Subsidy, etc., We preliminarily summarize the main temporary subsidy policies implemented by various places of the country as below:

稳岗补贴：2020年1月24日，人社部在《关于妥善处理新型冠状病毒感染的肺炎疫情防控期间劳动关系问题的通知》中明确，符合条件的企业可按规定申请和享受稳岗补贴。2020年2月2日，苏州市人民政府出台了《苏州市人民政府关于应对新型冠状病毒感染的肺炎疫情支持中小企业共渡难关的十条政策意见》，也明确提出实施援企稳岗政策。2020年2月3日，上海市人力资源和社会保障局也出台了本市企业减负的相关政策，其中明确：2020年将继续对不裁员、少裁员、符合条件的用人单位返还单位及其职工上年度实际缴纳失业保险费总额的50%。

Employment Stabilizing Subsidy: On 24 January 2020, the Ministry of Human Resources and Social Security issued the Notice on Properly Handling Labor Relation Issues during the Period for Prevention and Control of Covid-19-infected Pneumonia Epidemic and made it clear that qualified enterprises may apply for and receive the Employment Stabilizing Subsidy. On 2 February 2020, Suzhou Government released Ten Policy Opinions on Coping with Covid-19-infected Pneumonia Epidemic and Supporting Medium and Small Sized Enterprises to Go Through the Difficulty, which also put forward to implement the policy of assisting enterprises to stabilize employment. On 3 February 2020, the Shanghai Municipal Human Resources and Social Security Bureau also issued relevant policy on reducing cost for enterprises in Shanghai, setting forth that in 2020, the Municipality shall continue to refund to the employer which does not lay off staff or rarely reduces staff number 50% of the total unemployment insurance premiums actually paid by the employer and its employees in the preceding year.

一次性吸纳就业补贴：北京市出台相关政策，为急需物资的企业提供一次性吸纳就业补贴，即从2020年春节起到2020年2月9日期间，开工生产、配送疫情防控急需物资的企业，符合条件的享有一次性吸纳就业补贴，按照1000元/人的标准。

One-Off Employment Subsidy: Relevant policies have been released in Beijing to provide One-Off Employment Subsidy to enterprises that are in urgent need of materials. Based on the policy, enterprises that start production and distribute urgently needed materials for epidemic prevention and control during the Spring Festival (up to 9 February 2020) may be given One-Off Employment Subsidies with the standard of RMB1,000 for each person if they meet the requirements.

岗位补贴:北京市的企业招用本市登记失业人员和城乡就业困难人员，依法签订一年及以上期限劳动合同且按规定缴纳职工社会保险、按月足额发放不低于本市职工最低工资标准1.2倍工资的，可按规定申请享受岗位补贴、社会保险补贴。

Employment Subsidy: Enterprises in Beijing that meet the following requirements can apply for Employment Subsidy and Social Security Subsidy according to the relevant regulation: The enterprise should hire the unemployed staff registered in the city and staff in urban and rural areas that are difficult to get jobs; conclude employment contract with the employee for one year or longer terms; contribute social security premium for the employee in accordance with the law; and pay monthly salary to the employee in full amount with the standard of no less than 1.2 times of the local minimum wage.

因此，企业可以关注当地的补贴政策，根据自身的情况申请政府的各类补贴，在一定程度上缓解企业的资金压力。

Therefore, the enterprise can pay close attention to the local subsidy policies and apply for governmental subsidies based on its own situation, which can relieve its financial pressure to some extent.

14. 冻结招聘计划

Freeze Recruitment Plan

此次疫情爆发的时间正好在春节假期前后，也恰逢大学生就业季，有些企业在春节前招聘了一些职工，约定入职时间为春节后，但是对于疫情导致需求萎缩的行业，企业需要考虑冻结当期的招聘，直至取消已经发出的录用通知。当然，取消录用的企业需要承担赔偿责任。司法实践中，上海地区的法院一般判决由新公司向职工支付不超过3个月的约定工资/原雇主工资作为补偿，北京则是酌定1-2个月约定工资。

This virus outbreak occurs during the Spring Festival Holiday, which is also the time for university students to seek for jobs. Some enterprises have already hired some employees and agreed with the employees that they can start to work after the Spring Festival. However, some enterprises’ market demand shrank sharply due to the epidemic outbreak, and they need to consider to freeze current recruitment and even cancel the offer letters which have been already sent out. Of course, the enterprise needs to undertake liability for compensation if it cancels the positions which have been already offered to the employees. In judicial practice, courts in Shanghai usually hold that the employer should pay no more than 3 months of the agreed salary/salary of the previous employer as compensation, while courts in Beijing may hold that the employer is obligated to pay 1-2 months of the agreed salary as compensation.

另外，企业也可以根据当前的政策在合理范围内调整职工的入职日期，这样既有利于疫情防控，又未显著损害职工的利益，也避免了赔偿责任。

Furthermore, the enterprise can also adjust the entry date of the employee within reasonable range according to the current policy, which is not only beneficial to the prevention and control of the epidemic, but also avoids the compensation liability as it doesn’t damage the interest of the employee.

15. 加强培训，提升技能

Strengthen Training and Upgrade Skill

人才是一个现代企业的核心竞争力，很多企业平时都会对职工进行各类培训，以提高职工的职业技能。由于此次疫情停工的企业，正好可以利用疫情的停工时期，对职工进行线上培训。许多地方政府也鼓励企业对职工进行线上培训，并给予补贴。例如，上海市规定，对受疫情影响的本市各类企业，在停工期间组织职工参加各类线上职业培训的，纳入各区补贴范围，按实际培训费用享受95%的补贴。

Talent is the core competitiveness of a modern enterprise. Many enterprises usually provide the employees with trainings to improve their professional skills. The enterprises that suspend work due to the epidemic can provide the employees with online training during the suspension of production and operation. Many local governments also encourage the employers to provide the employees with online training by offering the employers certain subsidy. For example, under the regulation in Shanghai, where the enterprises in Shanghai affected by the epidemic organize their employees to participate in online trainings during the work suspension, such activities shall be brought into the scope of special funding of each district, and they will receive a subsidy at 95% of the actual training expenses.

16. 股权激励

Equity Incentive

股权激励作为企业最常用的激励职工的方法之一，在很多企业里得到应用。对于在疫情期间现金流出现困难的企业来说，也可以通过将职工的部分薪酬转变为股权激励的方式，既减轻企业的当期现金流压力，也可以留住核心人才，为企业后续的发展增添活力。通过这样一种方式降低职工的当期薪酬，也更能被职工接受。

Equity incentive is used by many enterprises as the most common method to motivate the employees. An enterprise that encounters difficulty in cash flow during the epidemic can also convert part of its employee’s remuneration into equity incentive, which not only relieves its current cash flow pressure, but also helps to retain the core talent and injects vitality into its subsequent development. Such way of pay cut is more likely to be accepted by the employees.

17. 共享员工

Share Staff

自疫情爆发以来，有的行业遭遇寒冬，业内企业几乎都面临生产经营危机；有的行业却面临爆发式的增长，企业陷入用工荒。近期“共享员工”一词也成为热点。盒马鲜生率先通过联手传统餐饮业的方式，让部分餐饮业的员工来本企业上班，既缓解了自身的用工荒等问题，也为传统餐饮业降低了疫情时期的人力成本。当然，企业使用共享员工的模式，在疫情期间将自己的员工共享出去，而疫情结束后，如何避免因共享员工产生的人力资源流失风险，也是企业需要考虑的现实问题。

Since the outbreak of the epidemic, some industries have entered a slump, and almost all enterprises in such industries are facing production and operation crisis. However, a couple of industries are facing explosive growth in market demand and are falling into workforce crunch. Recently “shared staff” has become a hot topic. By jointly cooperating with the traditional catering sector, Freshippo hired some employees of the catering sector to work in Freshippo, which not only eases its shortage of workforce, but also reduces the labor cost of the catering sector during the epidemic. While sharing employees to other enterprises during the epidemic, the employer should also consider the practical method to avoid the risk of workforce loss arising out of the cooperation mode of shared staff.

18. 转变用工方式

Change Employment Mode

对于一些业务流程相对独立和容易切割的企业，可以将这些业务部门的职工独立出去，让他们注册成为个人独资企业或个体工商户，由个体工商户或个人独资企业向原来的企业提供劳务。这样既可以减少社会保险、住房公积金等费用，节省企业的用工成本，也可以让这部分人保留向其他客户提供服务的可能性，增加他们的收入。当然，企业在设计这一用工模式时需要格外慎重，避免被认定为“假委托、真劳动”或“假外包、真派遣”，反而增加了企业的成本和法律风险。

As to the enterprise with business units which are relatively independent and separable, the enterprise can consider to separate the employees of these business units. These employees can register as sole proprietorships or individual businesses (similar to freelancer) and provide service to the enterprise. The advantage of the employment mode change on one hand, can reduce labor cost including social insurance premiums, housing provident fund, etc., and on the other hand, allow these employees to provide service to other clients, which can increase their income. Of course, the enterprise needs to be very prudent when designing this employment mode, to avoid to be deemed as “concealing the real employment relationship through the manner of entrusting an agent” or “concealing the real labor dispatch through outsourcing service” which will increase the cost and legal risk of the enterprise on the contrary.

大家可能已经注意到，上述十八个方案各有利弊，甚至蕴含着潜在的法律风险。企业在具体实施的过程中，建议在事前、事中、事后都应适时引入及借助外脑，聘请资深的劳动法律师对方案作谨慎论证和评估，对职工的关切及时予以回应，并在方案实施完毕后关注职工的动态，真正实现防疫和发展两不误，企业和职工彼此成就。

You may have been aware that each of the eighteen measures mentioned above has its advantages and disadvantages, and legal risks may even lie in each of them. Therefore, it is advised that the enterprise should consult the expert before, during and after implementation of the measure by engaging experienced employment lawyers to prove and evaluate the legality of the measure cautiously. In the meantime, the enterprise should also respond to the concerns of the employees in a timely manner and keep track of their feedback. In this way, the epidemic prevention and corporate development can be achieved simultaneously, and both the enterprise and its employees will be mutually benefited.

The End

作者简介

张根旺律师

上海办公室合伙人

业务领域：劳动法, 诉讼仲裁, 合规/政府监管

倪娴侠

上海办公室公司部

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