Recently, there have been media reports that some enterprises have violated laws such as "996", "007", and "big and small weeks". "996" refers to workers who go to work at 9 a.m. and leave work at 9 p.m. every day, working six days a week. "007" refers to a flexible working system in which workers are on standby 24 hours a week from 0 to 0, without rest 7 days a week. "Large and small weeks" refers to a working system of alternating cycles of 5 days a week and 6 days a week.

 

In order to facilitate enterprises to understand the legal consequences of illegal overtime employment and guide enterprises to legally regulate employment, this bourse analyzes the legal risks of enterprise overtime employment.

 

Law enforcement in the field of labor relations cannot be separated from China's current economic situation, national policies in the field of labor relations, and of course, applicable laws and regulations. To this end, the Institute has focused on the current economic situation in China, the policy dynamics in the field of labor relations, the dynamics of labor law enforcement and supervision, and the current applicable laws and regulations in China.

 

1、 China's current economic situation

 

According to the work report of the Chinese government in the past two years, in the face of the deep recession of the world economy and the normalization of the COVID-19, the Chinese government's top priority is still to do a solid job in "six stability" and "six guarantees". Among them, the work of "six guarantees" involves ensuring employment, people's livelihood, and market entities. It can be seen that the country has placed the safety and development of enterprises at an unprecedented level. This policy of protecting enterprises, protecting employment, and stabilizing the supply chain of the industrial chain determines that policies and law enforcement in the field of labor relations should be carried out in accordance with the law without compromising the development of enterprises.

 

2、 Policy and law enforcement trends in the field of labor relations

 

March 21, 2015

 

The State Council has issued the "Opinions on Building Harmonious Labor Relations", proposing the principle of adhering to the construction of harmonious labor relations in accordance with the law, including improving and implementing national regulations on working hours, national holidays and anniversaries, and paid annual leave for employees, improving the labor security supervision system, further opening up channels for reporting and complaints, expanding the coverage of daily inspections and written reviews, and strengthening special rectification of outstanding issues, Strengthen the construction of labor security integrity evaluation system, and establish and improve enterprise integrity files.

 

November 2, 2020

 

The Ministry of Human Resources and Social Security has jointly issued the "Three Year Action Plan for Improving the Ability of" Harmonious Cooperation "in Labor Relations, which aims to build harmonious labor relations in accordance with the law and focuses on preventing and resolving conflicts in the field of labor relations, and continues to promote the construction of labor relations governance system and governance capacity.

 

May 17, 2021

 

The key points of the 2021 government affairs disclosure work of the Ministry of Human Resources and Social Security emphasize that market rules, standards, and regulatory and law enforcement information should be well disclosed, and a "blacklist" system for the human resources market should be established and improved. A law enforcement and supervision method should be implemented in which randomly selected inspection objects, randomly selected law enforcement inspectors, and the results of random inspections and investigations should be promptly disclosed to the public.

 

June 2021

 

The Ministry of Human Resources and Social Security and the Supreme People's Court jointly released the second batch of typical cases of labor and personnel disputes, which are regarded as the focus of the state's attention against the phenomenon of illegal extension of workers' working hours by enterprises. These cases are all related to the illegal extension of working hours by employers, and the applicable laws and regulations are still in force. The purpose of this release of typical cases is, on the one hand, to remind enterprises of the risks of illegal behavior and promote the legal and standardized employment; On the other hand, clarify the expectations of workers' rights protection, and guide workers to rationally protect their rights in accordance with the law.

 

July 2021

 

The Ministry of Human Resources and Social Security, in conjunction with other ministries and commissions, has issued the Guiding Opinions on Safeguarding the Labor and Social Security Rights and Interests of Workers in New Employment Forms, specifically targeting the protection of the rights and interests of workers in new employment forms such as online appointment distributors and online appointment drivers who rely on Internet platforms for employment. There are a large number of groups such as online distribution personnel and online taxi drivers, and the contradiction in employment is prominent. The state aims to guide enterprises to legally employ workers. On September 10, 2021, the Ministry of Human Resources and Social Security, together with other institutions, held an administrative guidance meeting for platform enterprises to provide joint administrative guidance to 10 leading platform enterprises such as Meituan and Didi, and requested that the above guidance be fully implemented.

 

From the above policies and law enforcement dynamics, it can be seen that labor relations governance has always been under the rule of law framework. The Chinese government continues to promote the construction of harmonious labor relations according to law, attaches importance to the protection of the legitimate rights and interests of workers, and strengthens the labor law enforcement supervision system and the blacklist system of illegal enterprises. The introduction of new policies and special activities by the state is often combined with new employment phenomena or new employment conflicts that arise in the current society. We should not only see the stability and consistency of national legislation and law enforcement, but also see dynamic changes that take into account the actual situation of society. The purpose of the new policy and special rectification is to regulate the legitimate employment of enterprises, not to upgrade law enforcement. Among them, the state's governance of illegal extension of working hours by enterprises is still under the existing legal framework, and no new laws and regulations have been introduced, nor has there been any escalation of law enforcement.

 

3、 Current main applicable laws, regulations and relevant provisions

 

(1) Legal provisions on working hours

 

Article 36 of the Labor Law of the People's Republic of China stipulates that the state implements a working hour system in which workers work no more than eight hours a day and no more than 44 hours a week on average. Article 38 stipulates that enterprises shall ensure that workers have at least one day off every week. Article 41 stipulates that an enterprise may, due to its production and operation needs, extend its working hours after consultation with the trade union and workers, generally not exceeding one hour per day; "If it is necessary to extend working hours for special reasons, the extended working hours shall not exceed three hours per day, but not exceed 36 hours per month, provided that the health of the workers is guaranteed.".

 

Article 3 of the "Regulations of the State Council on Working Hours of Employees" stipulates that employees work 8 hours a day and 40 hours a week.

 

According to the above regulations and in combination with the time sequence and effectiveness of the above regulations, China implements a working hour system in which workers work 8 hours a day and 40 hours a week. The extended working hours of the enterprise shall not exceed 3 hours per day and 36 hours per month. Violation of the above provisions constitutes illegal overtime employment. Any enterprise that violates the above regulations and arranges workers to work overtime is an illegal act, and no industry or enterprise is exempt. Even if the administrative authority does not impose penalties, such acts are still illegal.

 

(2) Relevant provisions on administrative penalty

 

Article 25 of the Regulations on Labor and Social Security Supervision stipulates that if an enterprise violates labor and social security laws, regulations, or rules to extend the working hours of workers, the labor and social security administrative department shall give a warning and order it to make corrections within a specified time limit, and may calculate the amount of 100 yuan to 500 yuan per worker who is injured and impose a fine.

 

Many provincial and municipal human rights and social security departments have issued administrative penalty discretion standards to regulate the specific application of Article 25 of the Labor and Social Security Supervision Regulations. Based on the Beijing Human Resources and Social Security Administrative Penalty Discretion Benchmark Table (2021 version), the Shanghai Human Resources and Social Security Bureau Administrative Penalty Discretion Benchmark (2015), the Shenzhen Labor Supervision Administrative Penalty Discretion Standard (revised in 2019), and the Jiangsu Province Labor and Social Security Supervision Case Law Application and Administrative Penalty Discretion Benchmark Table (2021 version), we compare Beijing, Shanghai, Shenzhen The administrative penalty discretion benchmark in four places in Jiangsu Province is analyzed, and the relationship between the severity of law enforcement and the length of illegal labor hours used by enterprises is analyzed:

 

The implementation standards stipulated in Article 25 of the Labor and Social Security Supervision Regulations are not consistent in the four regions. Some places only consider the extended length of time when enforcing the law, while others also consider multiple factors such as the number of violations, the duration of the violation, and the proportion of victims. Moreover, the law enforcement varies from place to place. Overall, the regulations in economically developed provinces such as Shanghai and Shenzhen are relatively loose, while those in Beijing and Jiangsu are relatively strict. Generally speaking, extending working hours by more than 36 to 60 hours (approximately) per month is a minor violation of the law, and no punishment or warning will be given to illegal enterprises; Those who exceed 60 to 72 hours per month are considered serious violations, while those who exceed 72 hours per month are considered serious violations. For serious or serious violations, the severity of administrative penalties has increased correspondingly, mainly reflected in the increase in the amount of fines.

 

4、 The impact of law enforcement by labor administrative departments on illegal enterprises on upstream enterprises

 

The labor administrative department enforces the law on manufacturing enterprises and does not make a decision to order them to suspend production or business, which usually does not lead to the inability of the enterprise to complete orders. As mentioned above, the types of penalties specified in Article 25 of the Labor Supervision Law are limited to warnings and fines, and do not include restricting enterprises from carrying out production and business activities, ordering them to suspend production and business operations, etc. Article 76 of the "Administrative Penalty Law of the People's Republic of China" stipulates that those who do not have a statutory basis for administrative penalty, or arbitrarily change the type and scope of administrative penalty, are administrative violations. According to the current legal provisions, there is no law enforcement authority that arbitrarily changes the type of punishment and makes a decision to suspend production or business for enterprises that illegally extend working hours. Otherwise, it will be an administrative violation. Of course, whether the fines in administrative penalties themselves will cause the enterprise to be unable to operate normally needs to be determined based on the enterprise's own situation.

 

The punishment imposed by the labor administrative department on illegal enterprises will not in itself damage the goodwill of upstream enterprises. According to the current law, administrative authorities only punish illegal employment enterprises, and do not involve upstream purchasers. When we searched administrative penalty cases, we found that there were both Chinese funded enterprises and foreign funded enterprises such as Siemens, Bayer, and Shiseido among the punished enterprises. These penalty events themselves did not cause significant goodwill damage to the punished enterprises.

 

5、 Current administrative law enforcement methods

 

Currently, there are three ways for administrative law enforcement departments to extend working hours for enterprises in violation of laws: first, to accept complaints and reports; Special law enforcement inspection; The third is random sampling. The previous autonomous inspection method was basically replaced by random sampling.

 

The above three methods of law enforcement are all possible, which are determined based on the current social public opinion, complaints, and reports. The entire law enforcement inspection, in addition to random spot checks, other law enforcement situations, such as the frequency of law enforcement, and the enterprises or industries targeted by law enforcement, are determined based on the actual situation of the country and region, and there is no fixed pattern. Special law enforcement is usually conducted against certain types of employment phenomena, employment conflicts, or emergencies.

 

To sum up, we suggest that upstream enterprises should avoid cooperating with manufacturing enterprises that have been on the "blacklist", monitor the legitimate employment of enterprises by setting up worker reporting hotlines, strengthening free inspections, and guide the legitimate employment of enterprises by reducing or stopping orders for illegal enterprises.

 

(This article is translated by software translator for reference only.)