[Direct answer]In the Beijing area, if the original position no longer exists after the illegal termination of the contract, it is usually difficult to fully perform the original labor contract. In this case, the worker can claim that the employer should pay compensation at twice the standard of economic compensation. According to Article 48 of the Labor Contract Law of the People's Republic of China (adopted on June 29, 2007, implemented on January 1, 2008, and amended in 2012), if the worker does not request continued performance of the contract or the contract can no longer be performed, the employer shall pay compensation to the worker at twice the standard of economic compensation prescribed in Article 47. However, it is necessary to distinguish three situations: First, if the employer claims that the position has been abolished but the company is still operating normally, it is necessary to first assess whether there are other suitable positions that can be arranged. If the employer arranges other positions within a reasonable period and negotiates to amend the labor contract, it will usually be deemed that the employer has fulfilled its corresponding obligations; Second, if the employer closes down the business, is deregistered, or has its qualifications revoked, the contract can indeed not be performed, and the claim path is clearer; Third, if the employer unilaterally changes the position or reduces the salary on the grounds of business needs, if the change lacks basis and is not agreed upon by both parties, the worker can claim that the change is invalid. It should be noted that the compensation and the principle of continued performance are generally mutually exclusive. However, if the worker claims continued performance and the employer arranges other positions, and the two parties cannot reach an agreement on the content of the change, they may still return to the claim for compensation. The arbitration time limit is usually one year.Labor arbitration and work-related injury compensationThe column provides specific explanations on the illegal termination of employment contracts and job changes.

I. Problem Background and Typical Scenarios

Workers who consult such issues are often in one of three situations: first, the company has abolished the original department or position and claimed there's no suitable position for them after the layoff; second, the company has relocated, transformed, or closed its business lines, leaving employees with no corresponding positions to go to; third, the company requires employees to accept a significantly reduced salary or job transfer, otherwise they will be treated as absent without leave. Common concerns include: Can I demand to return to my original position if my position is eliminated? Must I accept any position randomly assigned by the company? And how is the compensation calculated? In practice, a key judgment is whether the contract can truly not be performed, which requires assessing the company's operating status and the actual existence of the position, rather than relying solely on the company's unilateral statements. Therefore, workers should actively verify whether the original department has truly been abolished, whether the company is still operating normally, and whether there are positions that match their own abilities. Another common misconception is that workers must accept any position assigned by the company. In reality, job adjustments should follow the principle of mutual consent, and amendments to labor contracts should be made in writing. Unilaterally reducing compensation is an illegal act. For organizing evidence and procedural coordination, you can refer to the following guidelines:Special services and other casesColumn; Practical issues regarding contract amendments and employee management, you may refer to it for referenceBusiness and contract disputes in enterprisesColumn.

II. Key points of dispute

First, whether the original position truly does not exist and the criteria for determining this. Second, whether the employer has arranged other positions within a reasonable timeframe. Third, whether the transfer of positions and salary adjustments comply with the principle of mutual consent. Fourth, whether the labor contract is deemed unenforceable. Fifth, the base amount and duration for calculating compensation. Sixth, ancillary claims such as unpaid annual leave wages. Seventh, the handling of disruptions to social insurance and housing provident fund payments. Eighth, the continuation of original position benefits after the employee returns to their previous position. Additionally, attention should also be paid to whether the calculation rules for performance and bonuses need to be redefined due to disruptions during the recovery period, the impact of this period of disrupted labor relations on seniority calculations, and the specific procedures for reapplying for social insurance and housing provident fund benefits.

III. Professional analysis by Henglue Lawyers

From the perspective of labor dispute practice, the effectiveness of safeguarding rights in the absence of a position depends on the meticulousness of the argumentation. Lawyers typically proceed from three aspects: First, proving the objective existence and elimination of the original position. Retrieve the company's organizational structure adjustment documents, department elimination notices, internal announcements, and position descriptions to demonstrate whether the position was genuinely eliminated or merely a measure targeting specific employees. If the company's overall operations were not affected, and only one position was eliminated while a large number of similar employees remained on the payroll, the basis for claiming continued performance would be stronger. Second, proving that the employer failed to fulfill its obligation of reasonable arrangement. List the worker's position history, professional skills, and historical performance to demonstrate the obvious unreasonableness of the company's arranged positions or the excessive disparity in compensation. Third, calculating compensation and incidental claims. Economic compensation is calculated based on the worker's years of service and average monthly salary, and if the average monthly salary exceeds three times the local average monthly salary of employees in the previous year, the cap rule applies. At the same time, sort out the unpaid annual leave wages, overtime pay, and losses from interrupted social insurance. When handling cases involving multiple workers, we can observe the combined application of such arguments: The employer issued termination notices to twelve employees on the grounds of irregular recruitment procedures discovered during inspections. The attorney demonstrated the illegality of the terminations by comparing them with the statutory termination circumstances item by item, and at the same time collected evidence of employment facts and wages and social insurance for the contract's enforceability. This approach also applies to cases involving position changes, with the key being to combine procedural review with factual argumentation.

IV. Practical suggestions and legal basis

Action suggestions: 1. Verify whether the original position has been genuinely abolished and collect relevant documents; 2. Review your own job experience and professional competence materials; 3. Require the employer to provide a written explanation of the position arrangement plan; 4. Clearly express the attitude that position adjustments require mutual consent; 5. Calculate the length of service and average monthly salary; 6. Claim ancillary requests such as unpaid annual leave pay; 7. Consider reapplying for interrupted social insurance and housing provident fund benefits. Legal basis: Articles 35, 48, and 87 of the Labor Contract Law of the People's Republic of China (amended in 2012 and implemented on July 1, 2013); Provisions on arbitration pre-filing and statute of limitations in the Labor Dispute Mediation and Arbitration Law of the People's Republic of China (adopted on December 29, 2007 and implemented on May 1, 2008); Specific compensation standards shall be subject to the currently effective regulations.

5. Henglu Law Firm's Reminder

Firstly, whether the position exists or not should be based on objective facts, not just the company's statements. Secondly, the transfer of positions and salary adjustments must be agreed upon by both parties and formalized in writing. Thirdly, when the company assigns a position that is obviously unreasonable, the employee can request an explanation and keep a record of their objections. Fourthly, if the employee insists on continuing to perform the duties, they should express their willingness to return to the position in writing. Fifthly, note that the statute of limitations for arbitration is one year. Sixthly, compensation and the principle of continuing to perform the duties should generally be chosen one over the other, rather than making a general claim. Seventhly, be aware that the company may take the opportunity to sign a consultation termination document, so don't sign it lightly. Eighthly, employees in similar situations can jointly assert their rights to improve efficiency. For methods of preparing evidence and formulating a salary claim, please refer to the relevant guidelines.Intellectual property protection and corporate lawColumn.

VI. Frequently Asked Questions

Q1: If the original position is really gone, can I still ask to return to my original position?

The position in question does not actually exist. It is usually difficult to require the employer to continue to perform the duties of the original position, but the employer can be asked to arrange other positions within a reasonable timeframe. If the company is still operating normally and there are suitable positions available, it is recommended to first express in writing the willingness to return to work or accept reasonable arrangements, and keep a record of the company's refusal or failure to arrange such positions. Then, the employee can claim their rights in accordance with the law.

Q2: If the company randomly assigns me a position, do I have to accept it?

No. Transferring a job or adjusting a salary constitutes a change to the content of the labor contract, and it should follow the principle of mutual consent and be in written form. If the company unilaterally arranges a position that is significantly lower than the original compensation or does not match the worker's abilities, you can raise objections in writing and keep the communication records. If the company refuses to arrange a suitable position for you as a result, it can be used as a basis for claiming rights.

Q3: How is the compensation calculated, and how much is it more than the economic compensation?

The compensation shall be paid at twice the standard of economic compensation. The economic compensation shall be calculated based on the length of service, with one month's salary paid for each completed year of service, one year's salary paid for a service period of more than six months but less than one year, and half a month's salary paid for a service period of less than six months; where the average monthly salary is more than three times the average monthly salary of local workers in the previous year, the compensation shall be paid at three times the amount, with the maximum service period not exceeding 12 years.

Q4: If the position is gone but the company is still operating normally, is there any difference between the two?

There is a difference. If the company is operating normally, it still has the ability to perform its obligations. If there are positions that match the worker's skills, the employer can still claim corresponding rights after assigning them to other positions. In this case, there is more room to continue to perform or modify the labor contract. If the company is operating normally but only eliminates specific employee positions, it may be considered a targeted measure, which provides a better basis for protecting workers' rights.

Q5: If my social insurance was interrupted during that period, does the company need to make up for it?

Generally, it is necessary to make up for the arrears. During the existence of the labor relationship, the employer has the obligation to pay social insurance in accordance with the law. The interruption of social insurance during the illegal termination period should be handled by the employer to make up for it or in accordance with local rules. It is recommended to specify it in the arbitration or litigation requests, and verify the procedures for making up for the arrears with the social insurance agency. Pay attention to keeping the application records.

The above answer is based on the judicial practice in Beijing. The judicial interpretations in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limit. →Labor arbitration legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In the event of a dispute, please consult a practicing lawyer in a timely manner.