Contents
Spotlight on News
- USA: Employees of Apple held a “historic vote” to establish Apple's first labor union
- Shanghai: The first batch of 18 companies received employment subsidies
3. Shanghai: The Shanghai High People's Court Released the Top Ten Typical Cases Related to People's Livelihood in Shanghai for 2021
Legislation Updates
1. The Shanghai Federation of Trade Unions issued the Operational Guidelines on Strengthening Labor Protection During the Period of Resumption of Work and Epidemic Prevention and Control - The Guidelines for Performance Appraisal and Salary Management of Fund Management Companies came into force on June 10, 2022
- The Guidelines on Reputation Risk Management of Fund Management Companies (Trial) came into force on June 17, 2022
Case Study
The Employer terminated the Employment Contract on the ground that the Employee did not reply the work related instant message in time when works from home, which was supported by the court.
Spotlight on News - USA: Employees of Apple held a “historic vote” to establish Apple's first labor union
It was reported by UPI on June 20, employees of Apple in Maryland had a "historic vote" to form a labor union recently. Apple has more than 270 stores in the United States. The Towson store in Baltimore has formed Apple's first labor union in the United States.
Last month, the American cultural magazine Vice exposed an internal memo sent to Apple store managers from Apple management, which indicated Apple head office's position against unionization. Employees of Apple have no other union elections recently, but employees of an Apple store in New York are working with Communications Workers of America to collect petition signatures to plan for voting. Employees in Kentucky have also been petitioning for a unionization vote. - Shanghai: The first batch of 18 companies received employment subsidies
Recently, 16 companies including SF express and Lawson in Minhang District and 2 companies including Shanghai Airlines and Luckin coffee in Changning District have become the first batch of companies benefiting from employment subsidies for difficult industries in Shanghai, with a total amount of employment subsidy nearly CNY 6.8 million.
It is reported that after the issuance of the Notice on Providing Employment Subsidies to Relevant Employers in the City in Response to the Epidemic to Stabilize Jobs and Ensure Employment by six departments including the Municipal Human Resources and Social Security Bureau, public employment service institutions at the municipal and district levels have closely cooperated to actively help companies in seven industries and that are greatly affected by the epidemic to stabilize jobs and ease operating pressure, including catering, retail, tourism, transportation, sports and entertainment, accommodation, and exhibition. At present, Shanghai has accepted 5,278 applications for employment subsidies from companies in the above seven difficult industries. - Shanghai: The Shanghai High People's Court Released the Top Ten Typical Cases Related to People's Livelihood in Shanghai for 2021
On June 15, 2022, the Shanghai High People's Court released the Top Ten Typical Cases Related to People's Livelihood in Shanghai for 2021, one of cases was that the company abused Employment Handbook to avoid paying compensation for employees' overtime hours. In this case, the court held the opinion that the employer can require the employee to submit the application in advance and obtain the approval before overtime work according to the Employment Handbook, which did not violate laws and regulations. However, the provision that overtime hours could be compensated only after 21:00 is invalid. Apparently, the 3 hours (from 18:00 to 21:00) far exceed the normal meal time, and it is unreasonable for the employee to arrange overtime work 3 hours after off-duty. Therefore, the court did not support the company's relevant claim, i.e., the overtime between 18:00 and 21:00 cannot be compensated based on the specific provision in the Employment Handbook.
Legislation Updates - The Shanghai Federation of Trade Unions issued the Operational Guidelines on Strengthening Labor Protection During the Period of Resumption of Work and Epidemic Prevention and Control
On June 3, 2022, the Shanghai Federation of Trade Unions issued the Operational Guidelines on Strengthening Labor Protection During the Period of Resumption of Work and Epidemic Prevention and Control (“Operation Guidelines”). The Operation Guidelines has clarified the guiding ideology, basic principles and operation procedures, especially in terms of operation procedures. From the preparation stage for resumption of work, the recovery stage for production and operation, to the normalization stage of epidemic prevention and control, the Operation Guidelines provides guidance for the trade union of companies on how to better provide labor protection for employees and help companies to resume work and production smoothly. - The Guidelines for Performance Appraisal and Salary Management of Fund Management Companies came into force on June 10, 2022
On June 10, 2022, the Asset Management Association of China issued the Guidelines for Performance Appraisal and Salary Management of Fund Management Companies (“Guidelines”). Similar to the previously issued Measures for the Supervision and Administration of Directors, Supervisors, Senior Executives and Practitioners of Securities and Fund Operation Institutions and other relevant regulatory provisions, the Guidelines also emphasizes that fund management companies should pay attention to the medium and long-term incentives for employees, and implement mechanisms such as remuneration deferral, salary payment freeze and refund. Meanwhile, the Guidelines further clarifies the bonus co-investment mechanism, and set out more explicit provisions on the bonus co-investment ratio and types for the senior management, major business department heads and fund managers. The Guidelines provides fund management companies with better implementation of remuneration deferral, salary payment freeze and refund and bonus co-investment mechanism. - The Guidelines on Reputation Risk Management of Fund Management Companies (Trial) came into force on June 17, 2022
On June 17, 2022, the Asset Management Association of China issued the Guidelines on Reputation Risk Management of Fund Management Companies (Trial) (“Guidelines on Reputation Risk”). The Guidelines on Reputation Risk puts forward requirements and guidelines for the reputation risk management of fund management companies in terms of management responsibilities, system and mechanism construction, self-discipline management, etc. For fund management companies, in the daily labor and personnel management process, it is necessary to improve the internal rules and regulations from the aspects of recruitment, in-service management, post-employment risk management, prevent the occurrence of reputation risk events, and effectively deal with the existing reputation risk events.
Case Study
The Employer terminated the Employment Contract on the ground that the Employee did not reply the work related instant message in time when works from home, which was supported by the court.
Facts
Due to the epidemic, the employee had been worked from home. During this period, the line manager of the employee had been communicating with and arranging work tasks to the employee through Feishu (an instant message App). However, the employee often failed to reply in time. Therefore, the company issued the first written warning and urged the employee that it is necessary to reply the message in time. If the employee replied half an hour after receiving the message, it will be deemed as absenteeism, and the company will terminate the Employment Contract if it gives more than two written warnings to the employee. After that, the employee still did not reply to messages in time, and he took more than one hour to reply each time. Subsequently, the company gave the second and third written warnings respectively, but the employee still refused to correct. Finally, the company unilaterally terminated the Employment Contract on the ground that the employee had seriously violated labor discipline.
Judge’s Viewpoint
The Beijing First Intermediate People's Court held that the current Labor Law stipulates that employees should complete labor tasks and abide by labor discipline and professional ethics. This provision is a basic requirement for employees. Even if the rules and regulations have not been clearly stipulated and there is no specific clause under the Employment Contract, if the employee seriously violated the labor discipline or professional ethics, the company can still terminate the Employment Contract in accordance with the above provisions.
Impacted by the epidemic, the changes of operation efficiency and working methods of the enterprises will inevitably lead to adjustments to the management methods by companies. Within a reasonable scope, the employees shall accept such adjustments. In this case, during the period of working from home, the employee shall obey the management of the company, follow labor disciplines and complete working task in a timely manner. However, based on the evidences, the employee had violated his basic labor obligations by failing to respond to the work requests of the company for many times during the period of working from home. After being warned by the company, the employee still did not strictly follow the company's management rules, and even after being warned several times, the employee still did not diligently perform his duties. The aforementioned behaviors of the employee seriously breached professional ethics and labor disciplines, and the purpose of establishing employment relationship with the company cannot be fulfilled. Therefore, the termination of employment relationship by the company was reasonable and lawful. The court shall uphold such termination.