China Employment Law Update
Written By
Executive Summary
- Provincial Adjustments to marriage and parental leave in 2016 following introduction of two-child policy.
- Eight Provinces promote a 2.5-days weekend with two cities to adopt the pattern from 1 April 2016.
- China's first transgender employment discrimination case is heard.
Provincial Adjustments to marriage and parental leave in 2016
On 27 December 2015, the Standing Committee of the National People's Congress passed an amendment to the Law of the People's Republic of China on Population and Family Planning, which gave effect to the nationwide two-child policy which came into force on 1 January 2016 (see our December 2015 newsletter on this subject here). As a result, provincial governments are amending local family planning regulations, which will be introduced by 26 provinces and municipalities by 26 April 2016. The amendments to the regulations have altered the length of marriage leave, maternity leave and paternity leave available. The changes across the 26 provinces and municipalities can be seen in the chart below.
| Province/ Municipality |
Marriage leave (days) (3 is the national standard) |
Maternity leave (days) (98 is the national standard) |
Paternity leave (days) | Implementation date |
|---|---|---|---|---|
| Beijing | 3+7 | 98+30[1*] | 15 | 24 March2016 |
| Shanghai | 3+7 | 98+30 | 10 | 1 March 2016 |
| Guangdong | 3 | 98+30 | 15 | 1 January 2016 |
| Zhejiang | 3 | 98+30 | 15 | 14 January 2016 |
| Jiangsu | 3+10 | 98+30 | 15 | 30 March 2016 |
| Tianjin | 3 | 98+30 | 7 | 14 January 2016 |
| Hubei | 3 | 98+30 | 15 | 13 January 2016 |
| Sichuan | 3 | 98+60 | 20 | 22 January 2016 |
| Shandong | 3 | 98+60 | 7 | 22 January 2016 |
| Fujian | 15 | 158-180 | 15 | 19 February 2016 |
| Shanxi | 30 | 98+60 | 15 | 20 January 2016 |
| Ningxia | 3 | 98+60 | 25 | 21 January 2016 |
| Guangxi | 3 | 98+50 | 25 | 15 January 2016 |
| Jiangxi | 3 | 98+60 | 15 | 20 January 2016 |
| Chongqing | 15 | 98+30 | 15 | 1 April 2016 |
| Hainan | 3+10 | 98+3month | 15 | 31 March 2016 |
| Neimenggu | 3+15 | 98+60 | 25 | 30 March 2016 |
| Anhui | 3 | 98+60 | 10[2*] | 15 January 2016 |
| Yunnan | 3+15 | 98+60 | 30 | 31 March 2016 |
| Hunan | 3 | 98+60 | 20 | 30 March 2016 |
| Gansu | 30 | 180 | 30 | 1 April 2016 |
| Jilin | 15 | 98+60[3*] | 15 | 30 March 2016 |
| Hebei | 3+15 | 98+60 | 15 | 29 March 2016 |
| Liaoning | 3+7 | 98+60 | 15 | 23 March 2016 |
| Guizhou | 3+10 | 98+60 | 15 | 31 March 2016 |
| Qinghai | 15 | 98+60 | 15 | 25 March 2016 |
Key:
[1*]: With permission from government departments and institutions, companies, social organizations or other units they are employed by, female workers can extend their maternity leave by another one to three months.
[2*]: If the husband and the wife live in different cities, the paternity leave will be 20 days.
[3*]: If applying alone and getting permission from their employers, female workers can extend their maternity leave up to one year and will receive 75% of their salary during the extended period.
Eight Provinces officially promote a 2.5-day weekend, with two cities due to adopt the pattern from 1 April 2016
In August last year, the General Office of the State Council published a document entitled "Several Decisions on Further Promoting Tourism-related Investment and Consumption" (the "Decisions"). The Decisions encouraged a 2.5-days weekend (Friday afternoon, Saturday and Sunday). Once the Decisions were published, the proposed pattern has been well received by many provinces and so far, eight of them have introduced official policies, explicitly supporting local government and organizations which are capable of doing so to implement the new weekend pattern.
Some cities became pioneers in this trend. On 21 March 2016, Ji'an, in the Jiangxi province, published an official document relating to a flexible work-rest system, which allows employees in the city to enjoy a flexible working pattern on Friday afternoons from 1 April to 31 October each year. In principle, each person is entitled to take two Friday afternoons off during a month. Jinzhong, in Shanxi province, has introduced a similar pattern, which took effect from 1 April this year.
Currently, the policies governing the new weekend pattern mainly apply to government organisations and institutions. However, businesses and social organisations in Ji'an and Jinzhong can also offer the weekend pattern under their own relevant provisions. However, there are concerns that it will be difficult for some private companies, which do not have financial capacity to pay employees for additional annual leave, to offer a 2.5-day weekend.
It has been widely noted that the 2.5-day weekend pattern should not undermine the legal requirement for employees to work a 40-hour week. In order to ensure the necessary working hours are completed, Friday afternoons off can be made up by using annual leave or working an additional two hours earlier in the week. Organisations have the right to apply specific measures that are most suitable to them in this regard.
China's first transgender employment discrimination case held hearings
On 11 April 2016, the first transgender employment discrimination case in mainland China was heard by a panel in Guiyang, Guizhou Province. Mr C, who was born as a woman but identifies as a man, submitted a discrimination claim against his former employer, a medical services company (the "Company"), on the grounds that his employment was terminated because he was transgender.
An HR manager of the Company appeared in court to defend the claim. Mr C was represented by two legal attorneys, who had travelled from Shenzhan and Beijing respectively. Theparties presented their evidence to the panel. The labor dispute board reserved its judgment on the matter.
Prior to the case being heard, the parties had unsuccessfully attempted to settle the case via mediation. The Company had agreed to pay Mr C's salary during his probationary period but refused to provide a public apology or pay any compensation, which led to the parties being unable to reach an agreement. Mr. C has stated that he considered a public apology to be important as he believes that the Company did not accord adequate respect to sexual minorities.
The case comes amidst growing awareness of lesbian, gay, bisexual and transgender ("LGBT") issues in China. Mr C told the media that he hoped, through his case, to shine a nationwide spotlight on LGBT issues in employment. He further stated that he hopes that Chinese society's understanding of sexual minorities is increased so that better laws and regulations against discrimination in the workplace can be created.
