Summary
Interpretation of Laws and Regulations: The Ministry of Human Resources and Social Security, the Supreme People’s Court and other Departments Successively Issued Documents to Protect the Equal Employment Rights of Laborers Including those Recovering from COVID-19
Interpretation of Laws and Regulations: Shenzhen Municipality Revised Wage Payment Regulation to Adjust Bonus Payment and Other Rules
Interpretation of Laws and Regulations: The Human Resources and Social Security Departments of Shanghai, Jiangsu, Zhejiang and Anhui Jointly Issued the “Guidelines on Labor Dispatching Compliance in the Yangtze River Delta Region” to Indicate the Identification Standards of Labor Dispatching and the Difference between Labor Dispatching and Labor Outsourcing
Quick View of New Regulations: Four Departments and Multiple Regions Successively Issued Notice on Phrased Deferred Payment of Basic Medical Insurance for Employees; Beijing Adjusted the Rules for the Use of Funds in Individual Medical Insurance Accounts; Shandong Revised the Regulations on Population and Family Planning
Exploration of Typical Cases: The Supreme People’s Court Released the 32nd Batch of Guiding Cases; Chongqing Fifth Intermediate People’s Court Released Typical Cases of Labor Disputes from 2019 to 2021; Huai’an Intermediate People’s Court of Jiangsu Province Released 10 Typical Cases of Labor Disputes; Hangzhou Internet Court Released 10 Typical Cases of Personal Information Protection
In order to tackle with the recent employment discrimination against laborers recovering from COVID-19 in some regions and employing entities, and to protect the equal employment rights and interests of employees recovering from COVID-19 in accordance with laws and regulations, the Ministry of Human Resources and Social Security (the “MOHRSS”) and the National Health Commission jointly issued the Emergency Notice on Resolutely Solving Employment Discrimination against Laborers Recovering from COVID-19 (the “Emergency Notice”) on 29 July 2022; the MOHRSS and the Supreme People’s Court jointly issued the Notice on Strengthening Administrative and Judicial Coordination to Protect the Equal Employment Rights for Laborers Recovering from COVID-19 (the “Notice”) on 10 August 2022.
Haiwen Suggestions: Employers need to pay attention to identifying and assessing risks of violating laws and regulations, to avoid the aforementioned behaviors of discriminating against laborers including those recovering from COVID-19 in the process of releasing recruitment notice, employee onboarding and employment management, and terminating labor relations. Employers also need to standardize query of the result of nucleic acid testing for COVID-19, to avoid unauthorized and illegal query of relevant test results, except for the need for epidemic prevention and control and scientific and reasonable setting of query for information in nucleic acid testing for COVID-19.
II. Interpretation of Laws and Regulations: Shenzhen Revised Wage Payment Regulation to Adjust Bonus Payment and Other Rules.
On 4 August 2022, the Standing Committee of the People’s Congress of Shenzhen issued a decision on revising the Regulation of Shenzhen on the Wage Payment to Employees (the “Original Regulations”). The revision (the “New Regulations”) involves 16 items, focusing on the following aspects:
2. Adjust rules on retention period of payroll sheet, the form of payroll and the requirement of signing receipt.
3. Remove the economic punishment for violating rules and regulations of employer, add the obligation of informing employee in writing.
Haiwen Suggestions: Employers in Shenzhen shall implement the above requirements promptly, and review the compliance of the relevant internal rules and regulations. If rules and regulations need to be revised, employer shall also ensure the compliance of democratic discussion procedure and proclamation procedure, in order to avoid the validity of relevant rules and regulations being denied due to procedural flaws.
III. Interpretation of Laws and Regulations: The Human Resources and Social Security Departments of Shanghai, Jiangsu, Zhejiang and Anhui Jointly Issued the “Guidelines on Labor Dispatching Compliance in the Yangtze River Delta Region” to Indicate the Identification Standards of Labor Dispatching and the Difference between Labor Dispatching and Labor Outsourcing
In order to further regulate the practices of labor dispatch, guide employers to use the dispatched workers according to laws and regulations and labor dispatch entities to carry out labor dispatch service activities according to laws and regulations, the human resources and social security departments of Jiangsu, Shanghai, Zhejiang and Anhui jointly issued the Guidelines for Compliance of Employment by way of Labor Dispatch in Yangtze River Delta (the “Guidelines”).
1. Further clarify the procedural requirements for defining “auxiliary positions”
2. List the specific positions where labor dispatch is not allowed
3. Refine the calculation method of total headcount
4. Elaborate the difference between labor dispatching and labor outsourcing
Haiwen Suggestions: The promulgation of the Guidelines suggests that employers need to strictly abide by the nature and proportion of using labor dispatch positions, and sort out and evaluate the compliance of their own labor dispatch employment. If labor outsourcing arrangements are involved, the compliance risks should be carefully assessed in advance, and the legal risks identified as “fake outsourcing and real dispatch” should be fully prevented and controlled from the contents of service agreements and the actual service management methods.
Ⅳ. Quick View of New Regulations: Four Departments and Multiple Regions Successively Issued Notice on Phrased Deferred Payment of Basic Medical Insurance for Employees by Employer; Beijing Adjusted the Rules for the Use of Funds in Individual Medical Insurance Accounts; Shandong Revised the Regulations on Population and Family Planning
1. Four Departments and Multiple Regions Successively Issued Notice on Phrased Deferred Payment of Basic Medical Insurance for Employees by Employer
2. Beijing Adjusted the Rules for the Use of Funds in Individual Medical Insurance Accounts
3. Shandong Revised the Local Regulations on Population and Family Planning
The newly revised regulations has made significant adjustments to the leaves related to marriage and childbirth, and the leave settings before and after the revision are as follows (for more information about revisions and adjustments to marriage and childbirth related leaves in other regions, please refer to the “Haiwen Research: Haiwen Labor Law Bi-monthly Newsletter” (November-December 2021), Haiwen Research: Haiwen Labor Law Bi-monthly Newsletter” (January-February 2022), Haiwen Research: Haiwen Labor Law Bi-monthly Newsletter” (March-April 2022), Haiwen Research: Haiwen Labor Law Bi-monthly Newsletter” (May-June 2022)).
Employers in Shandong should fully understand the local rules in force, and on this basis, update and improve the internal rules and regulations in a timely manner to protect the rights and interests of employees on rest and leave.
V. Exploration of Typical Cases: The Supreme People’s Court Released the 32nd Batch of Guiding Cases; Chongqing Fifth Intermediate People’s Court Released Typical Cases of Labor Disputes from 2019 to 2021; Huai’an Intermediate People’s Court of Jiangsu Province Released 10 Typical Cases of Labor Disputes; Hangzhou Internet Court Released “10 Typical Cases of Personal Information Protection”
1. The Supreme People’s Court Released the 32nd Batch of Guiding Cases
2. Chongqing Fifth Intermediate People’s Court Released Typical Cases of Labor Disputes from 2019 to 2021
Among them, the second case is noteworthy. In that case the employee constructively terminated the employment contract because he was identified as level eight disability due to work-related injury. The court held that this situation shall be deemed as one of the circumstances stipulated in Article 38 of the Labor Contract Law where the employee was forced to terminate the employment contract, and therefore the employer shall pay economic compensation to the employee. At present, there are different opinions among local judges on this issue.
In addition, according to the fourth Case, the court held that the average wage of employees in normal production in the 12 months before the termination of the labor contract should be taken as the wage standard for calculating economic compensation. At present, there are different standards for the calculation of economic compensation in this situation, and this standard in Chongqing is more favorable to employees.
3. Hangzhou Internet Court Released “10 Typical Cases of Personal Information Protection”
On the occasion of the fifth anniversary of its establishment, Hangzhou Internet Court released “Ten Typical Cases of Personal Information Protection”. Those cases relate to bank credit reporting, public travel service, online shopping platforms providing user information to embedded payment institutions, APP automatic recommendation applications, etc.
Since the introduction of the Civil Code and the Personal Information Protection Law in 2021, the protection of personal information at the practical level has been increasing. In addition to a continued increase in administrative supervision and penalty cases, civil litigation and criminal cases have also gradually entered the judicial procedure. For enterprises in all industries, in addition to completing the data compliance system under the external business scenarios, it is also necessary to attach importance to the evaluation, improvement and implementation of the management mode of the personal information of internal employees.
Disclaimer: This newsletter is for general information only and does not constitute our legal advice or legal opinions. For further discussions, please consult your regular contact at our firm, or any of the following Haiwen Labor Law Team members.
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