The removal of Luo Jiwei -- who was very outspoken on the need to reform the Labor Contract Law -- from his position as Minister of Finance does not appear to have impacted plans to amend the law. Today's edition of the Beijing News notes that top NPC officials have suggested that the Labor Contract Law needs to be reevaluated in light of complaints that it protects the interests of workers but ignores those of enterprises. In particular, provisions concerning non-fixed term contracts and economic compensation for workers need to be studied. This is consistent with previous reports that suggest the goal of revising the law will be to give greater flexibility to employers.
Another example of workers uniting across geographic lines. Radio Free Asia reported that these busloads of teachers from at least four provinces -- Hebei, Shandong, Jiangsu, and Fujian -- came together to Beijing to petition the government about owed compensation and benefits. This comes just weeks after Walmart employees in multiple cities orchestrated a coordinated strike action. This new trend can have important implications for China's future labor relations.
The China Labour Bulletin reported that over 200 workers from at least three Walmart locations in China went on strike this past weekend. The primary motivation for the strikes is the company's effort to institute a "flexible hours system" at its stores nationwide and allegedly coercing workers to sign contracts expressing their consent to the new system.Read More
Action is needed to combat America's wage theft epidemic. Unfortunately, there are countless heartbreaking stories of workers who are underpaid -- or simply not paid -- by their employers. Even worse, after the department of labor or a court finds that workers are owed money, they are often unable to collect anything from the employer. This video featuring former workers of the Chinese restaurant Mei Shi Lin in Flushing, Queens presents an all-too typical story. After the department of labor determined that the employees were owed years of back wages in excess of $100,000, the boss closed the restaurant the next day and requested that the workers accept a fraction of that amount. The workers are still struggling to collect what they are owed.
The SWEAT coalition has introduced a bill to combat this problem, which was passed by the Assembly last week. The bill makes the existing mechanic's lien mechanism available to workers in all industries and facilitates workers with meritorious wage claims to freeze employers' assets before they can be hidden or transferred. Other states have already enacted such common-sense measures. It is now time for the Senate to act responsibly and pass the SWEAT bill.
While in Hong Kong earlier this month to speak at the American Bar Association's Section on Labor & Employment Law, I organized a meeting between EEOC General Counsel David Lopez and the leadership of Hong Kong's anti-discrimination agency. See the press release on the U.S.-Asia Law Institute's website.
A good piece by Peter Harmsen discussing recent labor trends in China appeared in the April 21, 2016 edition of the Danish newspaper, Weekendavisen. The original Danish version is available here, but I have posted an imperfect but totally functional English translation below and it is also available as a PDF on my website.Read More
I was very fortunate to have the opportunity to introduce EEOC Chair Yang to several leading anti-discrimination experts from China earlier this month and discuss common issues faced by both countries. See the report on the USALI website here.
I published an op-ed in the April 20, 2016 edition of the South China Morning Post on this topic. My article and the link to it on SCMP's website are pasted below.
Employees in China should be allowed to protest against work conditions without fear of reprisals
Aaron Halegua says the mainland needs to extend the legal protection now given to whistle-blowers to workers who complain of ill treatmentRead More
An interesting report by court officials in Jilin Province, who examined the 2,257 labor dispute cases decided there in 2014, underlines some of the obstacles faced by workers in using the legal system to enforce their rights. First, this can be a long process. Nearly half of labor arbitrations will be appealed to court, and a high number of first-instance court decisions will be appealed to the higher court. The analysis shows that only 42% of labor cases handled by the courts are first trials; more than half are appeals, re-trials, or enforcement actions. By contrast, 69% of all civil cases in Jilin are first trials. The report also highlights the difficulties workers have in enforcing the court judgments they obtain: 30% of all labor cases were enforcement proceedings, compared with 19% of all civil cases. This phenomenon has been documented elsewhere, including a 2012 study by a Beijing legal aid NGO reporting that only 36.1% of the judgments it obtained were voluntarily enforced by the employer, 6.9% were partially enforced, and court enforcement was sought in 57% of cases. The Jilin study also revealed that after removing the sizeable number of “withdrawn” cases from the sample, workers received a “total win” in 44% of cases that were adjudicated but a “partial win/loss” or “total loss” in 56% of cases. Part of the reason may be that roughly half of workers lacked a legal representative and, of those who did, only one-third had a private lawyer. The remainder was represented by government-appointed legal aid lawyers (25%), basic-level legal workers (24%), barefoot lawyers (13%), or legal volunteers (2%). A final interesting point is the regional variation that exists in labor disputes. In the Guangdong courts, 34% of labor disputes involved termination issues and 31% involved unpaid wages. However, in Jilin, as is probably more representative of the rest of the country, 83% of labor cases involved unpaid wages. A special thank you to Susan Finder of the Supreme People’s Court Monitor blog for passing along this report. See her post on data concerning labor disputes in the SPC’s annual report here.
This article from China's official newspaper, People's Court Daily, describes the results of the Supreme People's Court's directive that lower courts ramp up enforcement actions before the Spring Festival. The SPC reports that from December 1, 2015 to February 15, 2016 courts enforced 89,633 cases involving over 3.6 billion yuan, including cases involving unpaid wages. In cases where the defendant is unable to pay, courts were also instructed to provide financial assistance to those parties seeking enforcement who faced economic hardships. During that same three-month period, 240 million yuan in assistance was distributed among 17,454 people. This is one more measure being employed by the Chinese government to encourage workers who have been cheated out of their wages to use the legal system -- and not other, "destabilizing" means -- to address their grievances. (A special thanks to Susan Finder of the Supreme People's Court Monitor for passing along this article.)
A court in Sichuan conducted a public sentencing of eight construction workers who were convicted of disturbing social order after staging a protest over their unpaid wages. Chun Han Wong provides excellent coverage of the story for the WSJ here. The implicit -- and even explicit -- message of the local government was that workers should be pursuing redress for labor law violations through the courts, not protests or collective action. Banners at the public sentencing urged "rational efforts in seeking unpaid wages" and denounced the disturbance of social order. It seems the purpose of doing the sentencing publicly, with local media on hand, must be to send an intimidating message to other workers and labor activists.
TakePart published this article today on the reasons for the growing labor unrest in China. As I explained to the reporter, the key driver is the economic downturn. When workers recognize that they have been mistreated by employers, they do a calculus of the costs and benefits of complaining or taking action. Normally, the fear of retaliation causes them to remain silent. But as factories announce they are going to downsize, relocate (domestically or overseas), shutdown, file for bankruptcy, or layoff workers, the "costs" of engaging in a strike or protest decrease (because the worker is likely lose their job regardless). In addition, the lack of an effective union or any other real mechanism for workers and employers to communicate about workplace grievances makes it increasingly likely that workers will need to strike, protest, or engage in some other collective action to raise their demands with the employer and get a response.
This is a remarkable, must-see video displaying Shenzhen-based labor activist Wu Guijun assisting workers cheated out of social insurance contributions for decades. I had the chance to meet the very impressive Wu in Shenzhen in 2015. He himself spent a significant amount of time in jail for helping his fellow coworkers before the charges were dropped. After his release, he decided to be a full-time labor activist.