Research On The Legal Problems Of Employees' Job-hopping

Employees'job-hopping refers to the situation in which after an employment is set up legally, the employee break the contract with the employer voluntarily before the contracted date and sign another new contract with a new employer. Thus, job-hopping would be divided into two kinds, legally ones and illegal ones. Nowadays, numerous job-hopping cases attract the consideration of the professional to standardize job-hopping by means of laws, that is relative laws and regulations must be drafted to rule and protect job-hopping, so that legal job-hopping could be protected whereas illegal ones could be bound, to ensure a reasonable place of human resource, and thus to balance the benefit between employee and employer, to set up a harmonious, stable, and healthy relationship between the two, to make it abide by the requirement of social equality and efficiency, to promote the development of economy and society.The first chapter is mainly about relationship between job-hopping and effectiveness of labor contract. The fundament of job-hopping is the freedom of the choice of ones employment. Employees are free to choose their job which is the form of the employees'personality independence and will freedom, which is clearly conveyed in our labor law. but with the frequency of job-hopping, some malicious job-hopping appear more and more frequently, which challenge the contract solemnity and stability and is a controversial issue both in theory and in practice. Also the phenomena bring some dilemma in practice which needs relative labor laws greatly. To solve these theoretical as well as practical problems, we have to make two points clear: first, labor laws bear two responsibilities, to ensure contracts effectiveness, and at the same time to ensure the freedom of contract. Second, labor laws have to protect two rights at the same time, benefits of employees and benefit of capital holders, to find a balance between the two parties to protect their benefits which are the aim of the labor laws. As to the concrete legislation design, first of all, the 31st item in the labor law about the right of resignation prediction should be perfected. 1. The usage of resignation prediction by different employees of different jobs should be distinguished. Max and mix deadline of resignation prediction can be adopted, and then within the legislation, exact length of time could be negotiated by two parties according to routines of the field and concrete situation. 2. The responsibility of damage amends should be clarified when employees adopt the resignation prediction which is based on the credit principle to make amends for the employer for their trust to the employee. 3. Effectiveness should be clarified when the above mentioned right is abandoned. Secondly, it is about the problem of the responsibility that should be carried by employees adopted illegal job-hopping steps. Here, the responsibility that the employees are supposed to carry is liability for breach contract. As for the amount of compensation, the author has provided some refinement to these already existed items. As for the items about compensation, in the author's opinion, there is clear inequality, which to a great extent set some blocks to the reasonable exchange of human resource. Thus, the author strongly recommends that compensation should be clearly bounded in the legislation.The second chapter is mainly about the problem between job-hopping and training. In the market economy, employers have to provide training programs to employees in order to tackle the furious competition, to promote the capacity of the company. But, after receiving the training, employees may hop to other companies, which makes it impossible to take back the cost of trainings, what's more, makes the employers reluctant to provide these training programs. In the author's opinion, the training–job hopping problem could be treated as a"game-theory". What both the employee and the employer pursue is the climax of the realization of self benefit, which accord to the assumption of"Rational people", which provide the base of the game analysis. The author locks the two control targets of"reduce the exchange cost"and"provide the system of inspiration", and set up a dynamic model between training and job-hopping. With the game analysis we can find clearly that if legislative protection is not provided to employers who provide training, when facing a temptation of a high salary, the employee will hop without reluctation with the driven of economic sense and strategic analysis, which will not only damage the benefit of the employers and blow the willingness providing training programs, but also cause the waste of social resource and trade cost. Only when legislative protection is introduced, can people jump out of the dilemma of training and job-hopping, so that Pareto Improvement could be achieved.The third chapter is concerned with the relationship between job-hopping and trade secret protection. Trade secret refers to the information unreleased to the public which could bring benefit to the owner and is protected as a secret. It is secret, practical, novel and effective. So, there is an unavoidable conflict between employers who ask for the keep of the secret and employees who demand for freedom in job choosing. Labor laws should provide special legislative protection to the weaker, here refers to the employees, to achieve justice, to balance the benefit of employers and employees. As for concrete legislative design, the author propose that distinctions should be made between trade secret and common knowledge, skill and experience of the labor, after a thorough analysis of relative items in the US, Great Br. and Japan. Also, the author designs concrete resignation taboos according to precondition, object, area, resign, term, repayment, and establishment.The fourth chapter is about the responsibility between job-hopper and the new employers. The action that is adopted by new employers to lure employees to job hop illegally, that is, to employ labors who is still in the former contract is malicious competition, as, it can damage the benefit of the former employer. In this situation, the problem of the responsibility of the new employer arises. Here, the author introduces the theory of inducement of breach of contract, and explains the concept and feature of inducement of breach of contract, and highlights elements of it. When identifying an inducement of breach of contract, the author, after distinguishes Joint and several Liability and non-real Joint and several Liability, holds the belief that only non-real Joint and several Liability suit inducement of breach of contract. As for the concrete of the employment of non-real Joint and several Liability, two points should be taken into consideration, first, the right of debt owner should be protected, second self-duty principle should be revealed, in other terms, the principle that debt owner can apple one or all of the debt at the same time or respectively, also, items about responsibility should be taken according to different degree of fault. According to the above mentioned theoretical analysis, the author proposes concrete refinement of 99th item of the labor law.