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 treatment
On March 30, China issued a new regulation to better protect whistle-blowers who report work-related crimes. Among the provisions are several articles that not only prohibit retaliation, but also, for the first time, describe the many forms it can take and provide greater detail on how the government should prevent and address reprisals. Laying this legislative foundation is an important step. The government should adopt similar anti-retaliation provisions for workers who protest against labour law violations by employers.
In China, like many other countries, retaliation against workers is a serious problem. For workers leading collective protests over labour conditions, terminations are the norm. In 2014, Nokia sacked 70 workers striking for better conditions and IBM fired 20 worker representatives who led a 10-day strike. China Labour Bulletin identified 126 incidents in the first nine months of 2015 in which a worker was arrested.
The same problem exists in individual disputes. Besides termination, retaliation may also occur in “less visible – and more deniable – ways such as transfers to other posts, or the rejection of a promotion or bonus”, as reported in the Post. In a survey of 685 Foxconn workers, over 47 per cent reported experiencing retaliation after raising a complaint. Public-sector workers are not immune either.
The result is a fear of retaliation that makes workers tolerate rather than complain about illegal employment practices. Indeed, a 2012 survey found that over 80 per cent of migrant workers in Guangzhou feared losing their job if they sued their employer.
There are only a few explicit mentions of anti-retaliation protections in current labour laws. For instance, trade union officials carrying out their duties are protected and retaliation against workers who assist labour inspectors in an investigation is banned. But no such protection exists for workers who raise a grievance with their employer, complain to the labour bureau or, as is increasingly common, bring a lawsuit. This makes it more difficult for victims to seek legal redress. When a worker challenges a retaliatory firing, the employer generally claims the action was justified under Article 39 of the Labour Contract Law, which permits terminating a contract where the employee violates a work rule or neglects his duties. Since there is no explicit prohibition on retaliation, courts do not inquire whether the employer’s true motivation is retaliatory. Instead, they merely evaluate whether the grounds for termination were sufficient under the contract. And, judges usually buy the employer’s story.
By contrast, retaliation is explicitly prohibited in the whistle-blower context. The March 2016 regulations, jointly issued by the Supreme People’s Procuratorate and the public security and finance ministries, takes a further step by enumerating 10 categories of acts that constitute retaliation. Some acts are not specific to the employment relationship, such as violent acts or threats, or defaming the whistle-blower. But, several of them are, including: termination, dismissal or discipline; deducting or withholding wages, bonuses or other benefits; or negative actions regarding job promotions, work assignments and employee evaluations or ratings. Even retaliatory acts against the relatives of the whistle-blower are prohibited.
This legislative framework – both the explicit prohibition on retaliation and recognition of the many forms it can take – should be applied to all employees who complain of illegal behaviour by their employer, including violations of the labour laws. Creating a government agency to enforce such provisions, or clearly tasking an existing one with that responsibility, may also help victims obtain redress. For instance, late last year, the New York State Department of Labour created a specialist Anti-Retaliation Unit staffed by attorneys who understand the myriad of forms retaliation can take and can act swiftly to reverse any action.
Some experts expect that China may amend the Labour Contract Law in the near future. This would provide an excellent opportunity to institute more robust anti-retaliation protections for all employees.
Aaron Halegua is a lawyer, consultant, and research fellow at the New York University School of Law’s US-Asia Law Institute and Centre for Labour and Employment Law