Employee Reassignment: Balancing Business Needs and Legal Compliance
Recently, many business managers have asked me about legal issues regarding employee transfers. Behind these consultations, there are not only the actual needs of enterprises for flexible employment, but also the hidden legal risks in job transfer operations. In view of this, this article has been written to provide systematic compliance guidance for enterprises.
In the daily operations of enterprises, it is a common management behavior to adjust the positions of employees due to factors such as market environment changes, business strategy adjustments, organizational restructuring, or employee performance. However, job transfer is by no means a simple personnel arrangement. Its essence is a change in the core terms of the labor contract, which is directly related to the employee's work content, remuneration and career development. In practice, a high proportion of labor disputes are caused by improper job transfer operations, which can lead to employees being passive at work and hindering corporate management. In severe cases, the labor contract is illegally terminated, and the company needs to pay high compensation, and even affects goodwill and team stability.
This article will systematically sort out the implementation paths for legal and compliance job transfers in enterprises from the four dimensions of legal provisions, judicial rules, typical dispute scenarios and operational points.
1. Legal nature of job transfer
Job transfer essentially constitutes a change in the content of the labor contract. Article 35 of the Labor Contract Law establishes the basic principles of "consensus through consultation" and "written confirmation". As the core clause of the labor contract, changes to the job position require consensus from both parties in principle.
However, in judicial practice, courts do not mechanically require that all job transfers must be subject to employee consent. Employers enjoy certain autonomy in employment based on production and operation needs, but they must meet the requirements of legality, rationality, and necessity, and must not harm the legitimate rights and interests of workers. Enterprises need to find a balance between employment autonomy and the protection of workers' rights and interests.
2. Legal circumstances for unilateral job transfer by an enterprise
Although consensus is the basic principle, the law recognizes that enterprises have the right to unilaterally transfer jobs under certain circumstances:
Scenario 1: The worker is not qualified for the job
the Labor Contract Law Paragraph 2 of Article 40 gives enterprises the right to first transfer employees when they are not qualified for the job. However, the company must have sufficient evidence to prove that the employee is indeed incompetent for the job. This proof should be a comprehensive and comprehensive evaluation and cannot be based solely on the results of one assessment. The job transfer itself should be reasonable and should not be punished or forced to resign in the name of incompetence.
Scenario 2: Unable to engage in original job after expiration of medical treatment period
According to the first paragraph of Article 40 of the Labor Contract Law, after the medical treatment period expires, if the employee is unable to engage in the original job, the enterprise has a legal obligation to arrange another job for which the employee is competent. This is a job transfer obligation that companies must fulfill, not an option. Only if the employee is still unable to perform the job after another job is arranged, the company can terminate the labor contract and pay economic compensation in accordance with the law. Therefore, the new position must be suitable for the physical condition of the employee and should be a job that the employee is capable of.
Scenario 3: Major changes occur in the objective situation
Typical scenarios stipulated in Paragraph 3 of Article 40 of the Labor Contract Law include corporate relocation, business line adjustment, department cancellation, job cancellation, etc. Enterprises should first negotiate with employees to change the labor contract. If negotiations fail, they can terminate it in accordance with the law. The identification standard for "significant changes in objective circumstances" is relatively strict, and must be a situation that cannot be attributed to both parties, was unforeseen when the contract was entered into, and does lead to the inability to continue to perform the original contract.
Scenario 4: Right to transfer based on contract or institutional agreement
Enterprises can clearly stipulate the terms of job transfer in the labor contract, or clearly stipulate the conditions and procedures for job transfer in the rules and regulations formulated in accordance with the law. However, the agreement cannot be too broad and must have clear triggering conditions and reasonable boundaries. Clauses such as "the company can adjust employee positions according to production and operation needs" are often considered too general and cannot be a sufficient basis for unilateral job transfers.
Enterprise’s statutory job transfer obligations
For special groups such as "three-phase" female employees and workers injured at work, enterprises have legal obligations to transfer jobs. Article 6 of the "Special Regulations on Labor Protection of Female Employees" stipulates that if a female employee cannot adapt to the original labor during pregnancy, the employer shall reduce the workload or arrange other adaptable labor based on the certificate from the medical institution. There are two key requirements here: first, there must be the objective fact that "cannot adapt to the original work", and second, it needs to be certified by a medical institution. Without certification from a medical institution, companies are not allowed to forcefully transfer employees in the name of protection.
For workers injured at work, if they are unable to return to their original jobs after the period of suspension of work and salary retention, the company should arrange for them to engage in work within their capabilities. Enterprises must ensure that the work intensity and working environment of new positions are suitable for the physical conditions of special groups, and must not take the opportunity to reduce their wages and welfare levels.
3. Legality review standards for unilateral job transfers
Even if an enterprise has a legal or agreed basis for unilateral job transfer, whether the job transfer behavior can be recognized by the judicial authorities still needs to be fully reviewed. According to the summary of judicial practice, especially with reference to the labor dispute trial guidelines and typical cases issued by local high courts, legal and effective unilateral job transfers usually need to meet the following elements at the same time:
Element 1: Sufficient factual basis and legal reasons
Enterprise job transfers must be based on real and objective needs, such as production and operation adjustments, changes in organizational structure, employees' incompetence for work, changes in employees' physical conditions, etc., and must be supported by corresponding evidence.
Element 2: Necessity and Reasonability
Enterprises need to prove that job transfer is a necessary means to achieve business goals or solve problems. The new position should be related or equivalent to the original position in terms of job nature, skill requirements, scope of responsibilities, etc.
Element 3: Not insulting or punitive
The purpose of job transfer should be to rationally allocate human resources or help employees adapt to new requirements, and should not be used to punish, retaliate against employees or force them to resign. If the job transfer significantly reduces the employee's job grade, social evaluation or work dignity, it may be deemed illegal.
Element 4: Do not significantly reduce labor remuneration
If the job transfer is accompanied by a significant salary reduction, even if the job adjustment itself is reasonable, it may be deemed as an illegal change of the labor contract because it infringes on the economic interests of the employee. In judicial practice, a salary reduction of more than 20% may constitute a "significant reduction."
Element 5: Perform consultation and notification procedures
Even if the company has the right to unilaterally transfer positions, it should fully communicate with employees in advance, explain the reasons for the transfer, the situation of the new position, and the rights and obligations of the employees, and give employees reasonable consideration and preparation time.
Element 6: Record the agreement in writing
Enterprises should prepare a standardized job transfer notice or change agreement, clearly stating key information such as the name of the new position, work content, work location, salary and benefits, effective time, etc., and provide fixed delivery evidence.
4. Practical points of job transfer operations
Point 1: Set reasonable job transfer terms in advance
Clarify the triggering conditions, procedures, and employee rights relief channels for job transfers in the labor contract and rules and regulations. Rules and regulations must be formulated through democratic procedures and must be announced or informed to workers.
Point 2: Fully investigate and evaluate before making a decision
For those who are transferred due to incompetence for the job, collect complete performance appraisal records, evidence of work errors, training records, etc.; for those who are transferred due to changes in objective circumstances, keep business adjustment decision documents, supporting materials for changes in the market environment, etc.
Point 3: Pay attention to communication and negotiation
Try to strive for employees' understanding and cooperation as much as possible, and fully explain the necessity and rationality of job transfer through interviews, written explanations, etc. It is recommended that a written record be made and signed by both parties.
Point 4: Carefully handle situations where employees refuse job transfers
Enterprises need to first determine whether their decision to transfer employees meets the legal requirements. Even if the decision to transfer is legal, the employee should be communicated again, clearly informed of the consequences of refusing the transfer, and given a reasonable period of time to require him to return to work.
Special reminder: Even if the company's job transfer decision is ultimately deemed legal by the court, there is still a greater risk if the company directly terminates the labor contract on the grounds of "serious violation of rules and regulations" after the employee refuses the job transfer. A more prudent approach is that after an employee refuses to take a new position, the company can treat it as absenteeism, but it should be noted that it must implement written reminder procedures, clearly inform the consequences of not being on duty, and give a reasonable deadline for arriving at work (it is recommended to be no less than 3-5 days). The identification standards and handling procedures for absenteeism in the rules and regulations must be clear and legal.
Point 5: Be extra cautious when reassigning special groups
For "three-phase" female employees, the fourth batch of typical labor and personnel dispute cases jointly released by the Ministry of Human Resources and Social Security and the Supreme People's Court clearly states that employers cannot reduce the wages and welfare benefits of pregnant female employees through disguised job adjustments. If a pregnant female employee can adapt to her original job, the employer shall respect and protect the female employee's labor rights and shall not forcibly transfer her position or reduce her salary without certification from a medical institution.
Point 6: Standardize the preparation and delivery of documents
The notice of job transfer should include the factual basis and legal basis for the job transfer, the specific situation of the new position, the effective time, the employee's rights and obligations, and the consequences of not agreeing to the job transfer. The method of service should be chosen to retain evidence, and the delivery receipt or other proof of delivery should be retained.
5. Typical Scenarios and Coping Strategies
Scenario 1: Reassignment and salary reduction on the grounds that the last position is eliminated
The court's review of such job transfers is relatively strict. It should be pointed out in particular that our country’s laws do not recognize the legality of the “last elimination” system. the Supreme People's Court made it clear in relevant cases that ranking at the bottom does not equate to “being unable to do the job.” The low ranking is only a relative evaluation and cannot prove that the employee is objectively unable to complete the work tasks or meet the job requirements. If an enterprise wants to transfer positions on the grounds of incompetence, it must prove that the employee's work results do not meet the objective standards of the position, and not just based on relative comparison with others. When enterprises implement such management measures, they should ensure that the assessment standards are objective and fair, the assessment procedures are legal and transparent, and the range of job transfers and salary reductions is reasonable and appropriate.
Scenario 2: Large-scale job relocation due to organizational structure adjustment
Enterprises should formulate a systematic job transfer plan in advance, clarify the overall principles, specific plans, transition period arrangements, etc. for job transfer, and discuss it through an employee representative conference or other democratic procedures. For those who have major changes in their work location after the transfer, such as being transferred from this city to another place, special attention should be paid to the implementation of the consultation procedures.
Scenario 3: Employee regrets after working in new position
After receiving the notice of job transfer, employees still reported to the new position despite objections. Even after working for several months, the employee's request for job transfer was invalid. Judicial authorities usually comprehensively examine factors such as whether the employee has clearly expressed dissent, whether there has been coercion, and the length of time the employee has continued to work. Enterprises should require employees to clearly express their agreement or disagreement in writing, and retain evidence such as attendance records, work results, and salary receipts of employees in their new positions.
Scenario 4: Temporary job transfer due to force majeure
During special periods, companies may need to temporarily adjust employee positions to maintain operations. Although this type of job transfer has certain legitimacy, consultation procedures should still be implemented to explain the reasons and expected duration of the temporary job transfer, and keep the salary and benefits unchanged as much as possible. Temporary job transfers should not be made permanent or regular, otherwise they should be handled in accordance with the procedures for formally changing the labor contract.
Scenario 5: Job transfer during the probation period
Some companies believe that employees can adjust their positions at will during the probation period. This is a misunderstanding. The probation period is an integral part of the labor contract, and the job position is also bound by the labor contract. When an enterprise transfers jobs during the probation period, it also needs to have legitimate reasons and perform consultation procedures. However, if the positions agreed in the labor contract are relatively broad (such as "management positions"), or if it is clearly agreed that the specific work content can be adjusted according to actual conditions during the probation period, the company will have relatively greater room for job adjustments. But even so, job adjustments that significantly reduce remuneration or are obviously unreasonable are not allowed.
6. Conclusion
Job transfer is not the absolute power of the enterprise, but a restricted management authority. Procedural legitimacy is equally important as substantive legitimacy, and prevention is better than remedy. Enterprises should establish a standardized job transfer system in daily management, reasonably set job transfer clauses in labor contracts, and conduct sufficient legal arguments before implementing job transfers.
The content of this article is based on the currently effective the Labor Contract Law and the Supreme People's Court "Interpretation on Legal Issues Applicable in the Trial of Labor Dispute Cases (II)" and other laws and regulations that will be implemented on September 1, 2025. It also refers to typical cases of labor and personnel disputes jointly issued by the Ministry of Human Resources and Social Security and the Supreme People's Court. Since the labor law system is still being improved, specific case handling needs to be based on the latest legal regulations and local judicial practice. When enterprises make major job relocation decisions, they should promptly consult professional labor lawyers to conduct risk assessment and plan optimization.
Only by fully respecting the rights and interests of workers and properly handling all details of job transfers on the premise of legal compliance can enterprises truly achieve a win-win situation of flexible employment and harmonious labor relations.
Yu Kun Lawyer Tip: The content of this article is for legal reference only and does not constitute legal advice for specific cases. If your company is facing complex job and salary adjustment issues or labor disputes, please contact Anhui Jingwang Law Firm and we will provide you with professional and efficient legal service solutions.