Review of Key Updates to Employment Laws and Policies in 2019

2019 witnessed considerable changes to China’s legislationand and administrative policies changes that could have a profound impact on the country’s employment field. In this article, we summarize some notable changes for your review.

1New Rules on Evidence in Civil Actions and Their Impact on Labor Disputes

On December 26, 2019, the Supreme People’s Court issued its decision to amend The Rules on Evidence in Civil Actions. The amended rules will become effective on May 1, 2020.

One of the many highlights of the amendment is an improvement to rules on party admission and order for discovery of documentary evidence, which has a crucial impact on employer and employee’s evidence selection and submission. Firstly, the amended rules provide that any statement against self-interest and any acknowledgment of a fact against self-interest would betreated as an admission. It therefore establishes the admissibility (as evidence at trial) of employer or employee’s admission made in interviews. Secondly, the amendment improves upon the rules on order for discovery of documentary evidence, providing solid legal ground for employee’s request to access information and material under the employer’s control (such as salary information, attendance records, overtime records, breakdown of bonus, etc.), as well as other information and data stored in the employer’s office administrative system and email. This also lays a heavier burden of proof on employers. Thirdly, the amended rules outline, in considerable detail, the scope of electronic evidence. As a result, items frequently submitted in labor disputes, such as WeChat messages and moments, audio recordings, and other electronic data, are now further confirmed as admissible evidence.

2

New Social Security Policy for Hong Kong, Macau, and Taiwan Residents

On November 29, 2019, the Ministry of Human Resources and Social Security and the National Healthcare Security Administration promulgated The Provisional Measures for Hong Kong, Macau, and Taiwan Residents’ Participation in Social Security Programs in Mainland China. Pursuant to the measures, starting on January 1, 2020, Hong Kong, Macau and Taiwan residents employed in mainland China shall participate in social security programs, and relevant social security premiums should be borne by both the employer and the employee. The measures also stipulate e.g. (1) Hong Kong, Macau, and Taiwan employees’ eligibility to receive social security benefits, (2) management of these employees’ social security accounts after their departure from mainland China, and (3) transfer of these employees’ social security coverage to a different province when they switch jobs. A Hong Kong, Macau or Taiwan resident who already participates in social security programs in his or her home province and maintains their coverage may, with proof of coverage issued by relevant authorities, be exempt from participation in pension plan and unemployment insurance in mainland China.

3

Flexible Staffing in the Internet Economy

In recent years, the flourishing internet economy has bred many new forms of employment relationship online. In contrast to traditional flexible staffing models (such as part-time employment and labor dispatch), online flexible staffing models remain largely unregulated. And in practice, courts have different opinions on legal issues in this area, such as whether there is an employment relationship between an internet platform and a person who seeks job or works on the platform.

In 2019, we observed a policy trend toward encouraging and supporting flexible staffing in the internet economy. On August 1, 2019, the General Office of the State Council released The Guidelines on Promoting Standardized and Healthy Development of Internet Economy. The guidelines encourage development of the internet economy and call for protection of internet platforms as well as employers and workers on the platform. They also call for an improvement to social security policies applicable to these workers. Later, on December 13, 2019, the State Council released The Opinions on Further Stabilizing the Job Market, further voicing its support for flexible staffing and new forms of employment. However, the level of impact this trend has on legislative and judicial practice remains to be seen.

4Equal EmploymentIn 2019, lawsuit for discrimination based on gender, geographic location, and health status frequently emerged in the employment field[1]. The outcome of these cases demonstrated the judicial authorities’ conviction to eliminate employment discrimination. To avoid civil and administrative liabilities, employers should beware and prevent discrimination in recruitment and daily labor management.
The Chinese government had released policies guidelines to eliminate discrimination and guarantee equal employment. At the beginning of 2019, nine departments, including the Ministry of Human Resources  and Social Security and the Ministry of Education, jointly issued The Notice on Further Regulating Recruitment Activities and Promoting Equal Employment for Women in an effort to ensure women’s right to equal employment. The notice prohibits employers from (1) having gender requirements or preferences for a position, (2) laying restrictions on women’s employment or refusing to employ women based on gender, (3) asking female job applicants about their marital or childbearing status, (4) requiring pregnancy testing from entry workers, (5) restricting reproductive right as a condition to employment, and (6) raising qualification requirements for female job applicants in a discriminating manner. At the end of 2019, the General Offices of the Central Committee of the Communist Party of China and the Statue Council published The Opinions on Promoting Systematic Reform of Circulation of Laborers and Talents in Society, emphasizing the necessity to rectify employment discrimination based on gender and other identities.5Online Publication of Labor Arbitration AwardIn the past, only court judgments were available through public channels, and there was no publicly available information on arbitration awards. This changed in 2019, when many regions such as the Jiangsu Province, Panzhihua City of Sichuan Province, and Hezhou City of Guangxi Province announced requirement to publish arbitration awards online.

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注释：

[1]Plaintiff Ma suing a company in Hangzhou for cross-gender discrimination; Plaintiff Yan suing Zhejiang Sheraton Resort Co., Ltd. for regional discrimination; Liu Yuan (alias) suing Guizhou Maotai Wine Marketing Co., Ltd. for discrimination against AIDS patients.

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作者介绍
 刘琦  

合伙人

021- 2613 6125

[e-mail]

刘琦律师毕业于华东政法大学和德国法兰克福大学，分别获得法学学士和法学硕士学位。刘律师具有超过10年的法律从业经验，主要业务领域为劳动与雇佣法律和外商投资并购。

刘律师拥有丰富的涉外法律服务经验，曾在一流国际、国内律师事务所工作十余年。刘律师擅长为跨国企业提供高质量的人力资源法律服务，包括提供日常法律咨询，高管解雇谈判，法律风险评估，人力资源合规，劳动合同、规章制度及其他雇佣相关的法律文件的起草与修订，劳务派遣与人力资源外包，员工安置及遣散，外国人在华就业和居留相关事宜，劳动争议解决等方面的法律服务。

 连煜雄  

顾问

021- 2613 6129

[e-mail]

连煜雄律师毕业于中南财经政法大学和厦门大学，分别获得法学学士和法学硕士学位。连律师具有超过10年的法律从业经验，主要业务领域为劳动与雇佣法律和外商投资并购。

连律师擅长为各类内外资企业提供高质量的人力资源法律服务，包括日常法律咨询，法律风险评估，提供合规整体方案，审查、起草和修改劳动合同、规章制度及其他劳动法律文件，处理外国人在华就业和居留的相关事宜，为客户及其员工提供培训服务，设计员工安置方案，高管解雇/离职等。

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