Contents
Spotlight on News
- The Ministry of Human Resources and Social Security, the Supreme People's Court and Other Departments Have Strengthened the Protection of the Employment and Labor Rights of People Who Have Recovered From COVID-19
- The Shanghai Municipal Human Resources and Social Security Bureau and Other Nine Departments Jointly Issued a Notice on the Pilot Work of Occupational Injury Protection for Workers in the New Employment Forms
Legislation Updates
1. Nationwide: the Ministry of Finance Issued the Notice on Further Strengthening the Financial Management of State-owned Financial Enterprises, Proposing Salary Cap Requirements for the Financial Industry - Nationwide: the Ministry of Human Resources and Social Security Announced the Administrative Measures for the Supervision and Reporting of Social Insurance Funds (Draft for Comment)
- Nationwide: 17 Departments Including the National Health Commission and the National Development and Reform Commission Jointly Issued the Guiding Opinions on Further Improving and Implementing Support Measures for Active Fertility
4. Shenzhen: Announcement of the Decision to Amend the Regulations on the Payment of Employees' Wages in Shenzhen
Case Study
The Company's Active Restructuring Due to Continuous Business Losses Was Categorized as a Major Change in Objective Conditions
Spotlight on News - The Ministry of Human Resources and Social Security, the Supreme People's Court and Other Departments Have Strengthened the Protection of the Employment and Labor Rights of People Who Have Recovered From COVID-19
Recently, the Ministry of Human Resources and Social Security and the National Health Commission issued the Emergency Notice on Resolutely Combating Employment Discrimination against People Who Have Recovered From COVID-19 ("Notice"). The Notice clarifies that except for the needs of epidemic prevention and control, and scientific and reasonable setting of COVID-19 nucleic acid test information query period, no entity or individual may illegally inquire about COVID-19 nucleic acid test results without authorization；it is strictly forbidden to publish recruitment information that discriminates against people who have recovered from COVID-19; it is strictly forbidden to refuse to recruit people on the ground that they have a positive test history of COVID-19; discrimination against people who once got COVID-19 in the process of entry and employment is strictly forbidden; it is strictly forbidden to illegally dismiss them. On August 10, 2022, the Ministry of Human Resources and Social Security, together with the Supreme People's Court, issued the Notice on Strengthening Administrative and Judicial Linkages to Safeguard Equal Employment Rights of Workers Who Have Recovered from COVID-19, requesting to strengthen the trial of employment discrimination cases and accept relevant lawsuits according to law, reasonably allocate the burden of proof, improve the efficiency of judicial protection, and achieve quick establishment, quick trial, and quick conclusion. - The Shanghai Municipal Human Resources and Social Security Bureau and Other Nine Departments Jointly Issued a Notice on the Pilot Work of Occupational Injury Protection for Workers in the New Employment Forms
Recently, Shanghai issued the Notice on the Pilot Work of Occupational Injury Protection for Workers in the New Employment Forms ("Notice"). Seven platform companies, including Caocao in the ride industry, Dada and Shansong in the instant delivery industry, Huolala and Kuaigou Taxi in the same-city freight industry, were included in the Shanghai occupational injury insurance pilot scope. The Notice has carried out specific regulations and introductions on the insurance registration and contribution, occupational injury confirmation and labor ability appraisal, occupational injury security treatment, service optimization, supervision and management and other modules. If the pilot implementation is successful, it is likely to be extended to more platform companies in the future.
Legislation Updates - The Ministry of Finance Issued the Notice on Further Strengthening the Financial Management of State-owned Financial Enterprises, Proposing Salary Cap Requirements for the Financial Industry
Recently, the Ministry of Finance issued the Notice on Further Strengthening the Financial Management of State-owned Financial Enterprises ("Notice"), which provides clear guidelines for the financial management of financial enterprises. The Notice clarifies a series of regulations related to the remuneration of state-owned financial enterprises, e.g. reasonably controlling the difference in post salary allocation, effectively balancing the income distribution among the leadership, middle-level cadres and grass-roots employees, increasing the preference for front-line employees and grass-roots employees, establishing remuneration distribution deferral system and accountability and compensation mechanism, and performance-based compensation recovery and deduction mechanism, etc. Two figures are worth paying attention to: 35% and 40%. For senior managers and employees in positions that have direct or important impacts on risks, the basic salary is generally not higher than 35% of the total remuneration. Deferred payment of performance remuneration shall be carried out in the case of risk instalment assessment, and more than 40% of performance remuneration shall be paid in a deferred manner, and the deferred payment period shall generally not be less than 3 years. In addition, the Notice also points out that financial enterprises should strictly implement distribution disciplines, strictly eliminate non-wage income, and include all wage income into the management of total remuneration package, and must not list and pay any allowances, subsidies and other payments in addition to total remuneration package. - The Ministry of Human Resources and Social Security Announced the Administrative Measures for the Supervision and Reporting of Social Insurance Funds (Draft for Comment)
On August 10, 2022, the Ministry of Human Resources and Social Security announced the Administrative Measures for the Supervision and Reporting of Social Insurance Funds (Draft for Comment) ("Administrative Measures") and publicly solicited opinions. The deadline for feedback is September 10. The Administrative Measures determine the scope of application and management mechanism for whistle-blowing, clarify the definition and scope of whistle-blowing, standardize the whistle-blowing management process in accordance with the law, and clarify safeguard measures and legal responsibilities. If the reported matter is verified to be true, and the social insurance fund can recover or reduce major losses, the relevant departments will reward the real-name whistleblower according to regulations. The Administrative Measures encourage people to report illegal matters such as providing false materials, fabricating social insurance qualifications, and making up the payment in violation of regulations; organizing or assisting others to fraudulently contribute insurance premium payment, obtaining early retirement qualifications, or illegally applying for social insurance treatment, etc. by forging or altering files and materials. - 17 Departments Including the National Health Commission and the National Development and Reform Commission Jointly Issued the Guiding Opinions on Further Improving and Implementing Support Measures for Active Fertility
17 departments including the National Health Commission and the National Development and Reform Commission jointly issued the Guiding Opinions on Further Improving and Implementing Support Measures for Active Fertility ("Guiding Opinions"). The Guiding Opinions mainly focus on improving the level of prenatal and postnatal care services, improving maternity leave and treatment guarantee mechanisms, strengthening housing, taxation and other support measures, etc. The Guiding Opinions emphasize that it is necessary to optimize the maternity leave system and maternity insurance system, encourage the implementation of flexible working methods such as flexible commuting and working from home, emphasize the continuous investigation of employment sex-based discrimination, investigate and punish infringements in accordance with the law, urge employers to implement special labor protection for female employees during pregnancy, childbirth and baby nursing periods in terms of working hours, wages, labor intensity, etc. - Announcement of the Decision to Amend the Regulations on the Payment of Employees' Wages in Shenzhen
On August 4, 2022, Shenzhen announced the Decision to Amend the Regulations on the Payment of Employees' Wages in Shenzhen (“Decision”). A total of 16 revisions were made in the Decision, and the key contents are: regarding whether to pay periodic bonuses such as monthly bonuses, quarterly bonuses, and year-end bonuses after employees’ departure, the agreement of the labor contract between the two parties will be respected and followed to a greater extent, and the company's labor management autonomy will be recognized and the provisions of the company's rules and regulations will be adopted; the retention period of salary payment records has been changed from 2 years to 3 years; the new electronic forms of the company's providing salary slips through electronic software such as DingTalk will be recognized, without the need for employees to sign and receive paper wage slips, and the company only needs to prove that salary slips are issued to employees in written or electronic form; the content that the company can deduct economic penalties for disciplinary violations from salaries has been deleted.
Case Study
The Company's Active Restructuring Due to Continuous Business Losses Was Categorized as a Major Change in Objective Conditions
Facts
On April 13, 2006, the employee joined an automobile company in Shanghai. Both parties agreed that the company can reasonably adjust the employee's position, work content and location according to the production and operation needs, business development of the enterprise, and the work ability, personality characteristics, and physical conditions of the employee. On September 1, 2020, the company made a decision on the adjustment of the organizational structure of the network department, canceling the position of the employee. The employee then replied by email to reject the company's transfer arrangement, and then the company terminated the labor contract on the ground that the objective situation on which the labor contract was concluded had changed significantly, making the labor contract impossible to perform, and after negotiation, the two parties still could not reach an agreement on the modification of the labor contract.
Judge’s Viewpoint
The court of second instance held that the objective situations in Article 40 (3) of the Labor Contract Law not only refer to natural conditions, enterprise relocation, merger and asset transfer of enterprise, etc., which are only illustrative examples of circumstances that make it impossible to perform all or part of the terms of the labor contract and should not be construed as exclusive. If the employer needs to adjust or change the organizational structure due to the influence of market conditions, international competition, technological innovation, etc., it should also be categorized as a major change in objective conditions. And the company has fulfilled its obligation of good faith negotiation when negotiating to change the labor contract. Thus, the company should not be deemed to have illegally terminated the labor contract.