天元律师受China Law & Practice邀请发表文章解读退休政策对外企影响

受国际法律媒体与评级机构ALM主办的《中国法律商务》（China Law & Practice）邀请，天元律师事务所合伙人郭威及律师吴瀚同撰文，解读中国延迟退休政策对外资企业的影响。文章已于2024年11月在China Law & Practice官方网站上发表。
天元劳动法团队在中国劳动及雇佣法律方面具有丰富的实践经验，熟悉企业人力资源管理工作的各个环节，能够帮助客户建立劳动和人力资源管理体系并处理日常劳动事务，更擅长处理复杂的劳动争议，能够设身处地从客户角度出发提供最有效的解决方案。天元劳动法团队曾为多家跨国公司、大型央企、国企、民企、金融机构等提供劳动法方面的法律服务。
郭威律师毕业于北京大学法学院。于2001年加入天元律师事务所工作，担任中国劳动关系学院外聘实践讲师，并受聘为北京市西城区人民检察院担任特邀律师监督员，曾获评为北京市律协首届优秀青年律师称号。郭威律师主要的执业范围包括各类民商事诉讼和仲裁，劳动雇佣、知识产权、公司治理、破产清算、反腐败合规调查、房地产等法律领域。执业期间，郭威律师参与了大量民商事诉讼、仲裁项目的法律工作，并作为多个内外资企业的常年法律顾问提供法律和合规咨询服务，积累了较为丰富的工作经验，并以尽职负责的工作态度和稳妥高效的工作风格获得了客户的信任。
吴瀚同律师先后毕业于浙江大学、首都经济贸易大学、康奈尔大学，主要执业领域为争议解决、劳动法，对于处理企业劳动法律问题有较为丰富的经验。吴瀚同律师曾为多家国企、外企、上市公司等提供中英文法律服务。
The Impact of the Raising of China’s Statutory Retirement Age on Foreign-invested Enterprises
Standfirst: As China prepares to introduce a long-awaited increase in the statutory retirement age for both men and women, Guo Wei and Wu Hantong of Tian Yuan Law Firm examine the impact of this sweeping domestic change on foreign-invested enterprises
The effect of the raising of China’s statutory retirement age will be far-reaching for employers
Employers can take a number of steps to avoid disputes in relation to retirement age
Precautions should be taken to avoid possible age discrimination claims
There will also be an impact on the management of foreign employees
On September 13, 2024, the Decision on the Implementation of Progressive Raising of the Statutory Retirement Age (《全国人民代表大会常务委员会关于实施渐进式延迟法定退休年龄的决定》) (the "Decision") was adopted by China’s top legislature, marking the implementation of the long-discussed "delayed retirement" policy. The Decision stipulates that within 15 years, the statutory retirement age for male employees will be gradually raised from 60 to 63 years old, while female employees’ statutory retirement ages will rise from 50 and 55 years old to 55 and 58 years old, respectively. The Measures for the Progressive Raising of the Statutory Retirement Age (《关于渐进式延迟法定退休年龄的办法》) (the "Measures"), which were approved at the same time, stipulates that starting from January 1, 2030, the minimum contribution period required for employees to enjoy monthly basic pensions will be gradually raised from 15 to 20 years.
In recent years, as the "post-1960s" and "post-1970s" generations have reached the statutory retirement age, disputes related to retirement have been increasing. Key issues include: 1) the identification of the statutory retirement age for female employees; 2) the type of legal relationship between employers and employees who have reached statutory retirement age but have not enjoyed pension benefits, as well as their rights and interests; and 3) the retroactive contribution of unpaid social security, and compensation for losses due to employers’ failure to fulfill the obligation of contribution.
However, the Measures also pose some new challenges for the way in which foreign-invested enterprises manage their employees.
Impact on domestic employee management
1. Statutory retirement age for female employees
At present, the common standard for statutory retirement age is generally 60 years old for males, and varies for females. It is generally 55 for those in management or professional and technical positions, but generally 50 for others. However, due to long-lasted historical practices, the standard for females still focuses on the employee’s identity of cadres or workers rather than their positions, in some regions.
According to Article 1 of the Measures, starting from January 1, 2025, for female employees whose present statutory retirement age is 55 years old, the statutory age will be raised by one month every four months until it reaches 58; for female employees whose present statutory retirement age is 50 years old, the statutory retirement age will be raised by one month every two months until it reaches 55. This means the identification of the statutory retirement age for female employees will still primarily depend on their positions or identity.
To prevent disputes regarding retirement age identification, the following measures can be taken:
1.Clearly define the position description and position types (management, professional and technical, or others) in the company’s rules and regulations or agreements with the employees. If there are policies regarding review or filing for position type by the local social security bureau, submit these for review or filing in a timely manner. When an employee's position or responsibilities change, promptly update the corresponding terms in the contract and then file this in a timely manner.
2.For an employee whose position type or identity in the archive is different from that in their actual employment, inquire of the local social security bureau about the issue. Try to reach a written agreement with the employee on the actual position or identity type.
3.Be mindful of the process of handling retirement by the local social security bureau. For example, conduct a preview of retirement as required or apply for this proactively. In case of possible disputes with employees relating to their retirement age, try to apply for position or identity type identification.
4.Ensure that relevant materials recording any consultation with the social security bureau are properly retained. For employees willing to retire, appropriately retain the materials demonstrating their assent.
5.Pay attention to local adjudication standards for retirement disputes, as well as job and identity type, analyze the risks and take measures in advance.
6.If dissatisfied with the decision by the social security bureau, employers or employees can seek relief through administrative reconsideration or litigation.
2. Flexible retirement
According to Article 3 of the Measures, employees reaching the required contribution period for basic pensions are entitled to the right of flexible retirement, which means retirement before or after statutory retirement age.
Retirement prior to the statutory age is an absolute right of the employee, and the employer's decision is irrelevant. The earliest retirement must be no more than three years before the statutory retirement age, but not earlier than the current statutory retirement age of 50, 55 or 60 years old.
As a countermeasure to employees' sudden requests for early retirement, employers can stipulate in their rules and regulations or agreements that employees should inform their employer in advance. Such advance notice requirements can be established based on the time needed for the retirement review process by the local social security bureau, the time needed for work handover, etc. It can be clearly clarified that whether an employee can retire will be subject to the review and decision of the social security bureau. If the employee does not wish to retire later than initially anticipated, the employee is advised to inform the employer as early as possible to avoid unexpected damages. The employer can also take the initiative to ask employees whether they have an intention to take early retirement, and prepare relevant materials in advance, when employees are about to reach the original statutory retirement age of 50, 55 or 60.
In contrast, a decision to delay retirement requires the consent of the employer. Retirement can only be delayed by up to three years after reaching the statutory retirement age.
3. Entitlement for workers reaching statutory retirement age
The first paragraph, Article 32 of the Interpretation on Issues Concerning Application of the Law in the Trial of Labor Dispute Cases (《最高人民法院关于审理劳动争议案件适用法律问题的解释(一)》) stipulates: "Where an employer has any employment dispute with a worker, who is employed by the employer and has already enjoyed pension security benefits or received pension in accordance with the law, and files the lawsuit, the people's court shall handle the case as a labor service relationship case." This paragraph clarifies that in current judicial practice, for a worker who is already drawing a pension, the legal relationship between the employer and the worker is a labor service relationship, rather than an employment relationship. Such worker is generally not entitled to the rights and interests of an employee.
As for workers who have reached the statutory retirement age but are not entitled to draw a basic pension, judicial opinions are divergent on their legal relationship with the employers and their entitlement, as a result of different rules in Article 44 of the Employment Contract Law (《劳动合同法》). and Article 21 of the Implementing Regulations for the Employment Contract Law (《劳动合同法实施条例》). The Supreme People's Court holds that if the worker’s inability to draw a basic pension is caused by the employer, an employment relationship may exist between the worker and the employer; otherwise, the worker is in a labor service relationship and is generally not entitled to employee’ s rights or interests.
However, such judicial opinion might be challenged by the first paragraph, Article 6 of the Measures which states: “Employers recruiting employees beyond the statutory retirement age should ensure such employees’ basic rights and interests, such as remuneration, rest and leave, labor safety and health, and work-related injuries relief.”
There are three remaining issues to be clarified in this paragraph:
1.How to interpret the word “recruiting”. Do “recruited” employees only refer to those who were originally not in an employment relationship with the employer, or does the term also include the personnel who already had an employment relationship with the employer, and are still employed by the employer after reaching the statutory retirement age?
2.How to define the word “employee” in this paragraph. Are they still the employee under the traditional dual-identification doctrine (employee and non-employee), or some kind of “third-type employee” entitled to some but not all of an employee’s rights and interests?
3.The scope of the “basic rights and interests”. Some controversial rights and interests include: annual leave and compensation for unused annual leave, welfare benefits, economic compensation and damages, social securities other than work-related injury security, housing provident fund, etc.
These issues have no clear answers at this stage, and remain to be dealt with by way of supporting regulations in the future.
4. Caution for age discrimination
Paragraph 2, Article 3 of the Employment Promotion Law stipulates that: "Employees shall not be discriminated against on the basis of different ethnic groups, races, genders, religious beliefs, etc." Age is not specified in this paragraph. However, Article 5 of the Measures, specifically stipulate: "Enhance the prevention and governance of age discrimination in employment, and encourage employers to employ more aged employees."
In judicial practice, if job seekers encounter employment discrimination, they can file a lawsuit on the basis of infringement of equal employment rights, and request employers to apologize and pay damages. Employees may also make relevant claims in employment disputes on the grounds of an employer’s discriminatory acts, but such individual claims for discrimination relief generally will not be heard in employment disputes. However, this may be regarded as a factor in considering whether the employment decision is reasonable.
The following measures are recommended to prevent relevant discrimination disputes:
1.Avoid requirements on age in recruitment information that are inconsistent with laws and regulations, or are unreasonable.
2.Avoid explicitly stating age as the basis for non-hiring or other employment decisions. For example, if the employer terminates the employment contract on the grounds that the employee lied about their age, having committed fraud and the contract is invalid, unless it can be proved that age is crucial for performing the job responsibilities (which is generally very difficult) the termination will be held illegal. Another example is explicitly stating that the employee is too old to be promoted, or to enjoy other benefits, without other legitimate reasons.
5. Pay attention to the employee’s legitimate rights and interests
With the raising of the statutory retirement age in China, the protection of employee’s basic rights and interests will be enhanced. Paragraph 3, Article 6 of the Measures specifically mentions: "The State improves the paid annual leave system." Compensation for unused annual leave is possible to be considered as remuneration in the future, which means the employee can claim compensation for all unused annual leave during employment.
In addition, employers should also pay attention to the management of overtime working and other basic labor protections. There will be a comprehensive and overall impact on employee management, not only for employees near retirement age.
The impact on foreign employee management
Although few disputes generally arise from foreign employees’ retirement, the statutory retirement age is relevant to the type of their legal relationship with employers. The majority view of the courts holds that a foreign worker is not in an employment relationship if they reach Chinese statutory retirement age, while the minority view holds the opposite based on mutual assent in employment agreement, or the fact there are no prohibitive regulations in the Provisions for the Administration of Employment of Foreigners in China (《外国人在中国就业管理规定》). Employers should pay attention to the Chinese statutory retirement age of foreign workers, and be mindful of their legal relationship with employers.
In general, the Decision and the Measures provide guidelines for future management of employees nearing retirement age. However, there are still many issues to be clarified. On October 18, 2024, the Tentative Measures of Basic Pension Security Disability Allowance for Enterprise Employees(《企业职工基本养老保险病残津贴暂行办法》) was promulgated as the first new supporting measures. The authorities will further modify and enact other supporting laws and policies, which foreign-invested enterprises must pay attention to in their management of both domestic and foreign employees.
The article was first published on China Law & Practice, www.chinalawandpractice.com.
实习生吴倩对本文亦有贡献。