China Update: Analysis of Legal Provisions and Common Problems Related to the Protection of the Rights and Interests of Female Employees

With the completion of the third revision of the Law on the Protection of Women’s Rights and Interests in 2022 and its promulgation and implementation, social topics related to the protection of women’s rights and interests have also been hotly discussed. Issues related to the protection of women’s rights and interests are not only common in social life, but also in the workplace, after all, most women also play the role of part-time women. In the third revision of the Law on the Protection of Rights and Interests of Women, more content related to labor protection for female employees has also been included.

In this article, we will sort out all the provisions of the law on the labor protection of female employees, so as to provide reference for employers to do a good job in protecting the rights and interests of female employees.

1. Employers shall not discriminate on the basis of sex when recruiting employees

In accordance with Article 13 of the Labor Law and Article 27 of the Employment Promotion Law, based on the equal employment rights of men and women, when employing employees, employers shall not refuse to hire female applicants or raise the employment conditions for female applicants on the grounds of gender, except for the types of work or positions that are not suitable for women as stipulated by the state, and shall not stipulate in the labor contract that restricts the marriage and childbirth of female employees.

In addition, Article 43 of the Law on the Protection of Rights and Interests of Women stipulates that employers shall not carry out acts in the recruitment (hiring) process unless otherwise provided by the state, including: (1) restricting the use of men or giving preference to men; (2) In addition to basic personal information, further inquire or investigate the marriage and childbirth status of female job seekers; (3) Pregnancy test as a physical examination item for entry; (4) Restricting marriage or childbirth, or marital or childbirth status, as a condition for employment (hiring); (5) Other acts of refusing to hire (hiring) women on the grounds of sex, or differentially raising the standards for hiring (hiring) women. At the same time, Article 83 of the Law stipulates that once an employer violates the aforesaid provisions, the human resources and social security department shall order it to make corrections, and those who refuse to do so will face a fine of not less than 10,000 yuan but not more than 50,000 yuan, depending on the severity of the circumstances.

Referring to the Main Points of the Adjudication of Guiding Case No. 185 issued by the Supreme People’s Court, if an employer discriminates against an employee without justifiable reasons based on factors such as geography and gender that are not necessarily related to the “intrinsic requirements of the job” when recruiting personnel, it constitutes employment discrimination, and if the employee’s right to equal employment is infringed upon, and the people’s court shall support the request that the employer bear the corresponding legal responsibility.

2. Employers shall implement special labor protections for female employees in accordance with the law in the course of labor employment

In order to protect the health and legitimate rights and interests of female employees, relevant laws and regulations have implemented special protection mechanisms for female employees. In the management of employment, employers shall strictly enforce laws and regulations on special labor protection for female employees, and protect the labor rights of female employees in accordance with law.

Laws and regulations are mainly based on the physiological characteristics of female employees, and from the perspective of health and protection of rights and interests, they clarify the groups of female employees and the work that they cannot perform during special periods. 

It should be noted that, in accordance with Article 13 of the Special Provisions on the Labor Protection of Female Employees, if an employer violates the above-mentioned labor security provisions, the production safety supervision and management department of the people’s government at or above the county level shall order it to make corrections, and depending on the specific circumstances, it shall impose a fine of between RMB 1,000 and RMB 5,000 per female employee who has been violated, or directly between RMB 50,000 and RMB 300,000.

3. Employers must not reduce the salary and benefits of pregnant female employees

According to Article 5 of the Special Provisions on Labor Protection of Female Employees, employers shall not reduce the wages of female employees because they are pregnant, giving birth or breastfeeding.

Female employees can enjoy maternity allowance during pregnancy. According to Article 8 of the Special Provisions on Labor Protection of Female Employees, the maternity allowance for female employees during their maternity leave shall be paid by the maternity insurance fund according to the standard of the average monthly salary of the employee in the previous year for those who have participated in the maternity insurance; For those who have not participated in maternity insurance, the employer shall pay the salary of the female employee before the maternity leave. For example, in Beijing, according to the Notice on Issues Concerning the Adjustment of the Maternity Insurance Policy for Employees in Beijing (Jing Ren She Yi Fa [2011] No. 334), the calculation standard of maternity allowance is “calculated and paid according to the average salary of the employee’s employer divided by 30 days and multiplied by the number of days of maternity leave”.

Maternity allowance is not exactly the same as pay during maternity leave. Maternity allowance is an economic subsidy given to female employees during the period when they leave work due to childbirth as stipulated by national laws and regulations, and the main body of payment for maternity allowance is the social security institution; The wages during the maternity leave period are the wages paid by the employer for the female employees during the period of maternity leave, and the employer is the main body of payment. For female employees who have participated in maternity insurance, the maternity allowance is equivalent to a substitute for the salary income during the maternity leave, if the amount of the maternity allowance is lower than the salary standard of the female employee before the maternity leave, the employer shall make up the difference according to the principle of higher status; For female employees who do not participate in maternity insurance, the employer shall pay the employee’s salary normally during the period of maternity leave.

It should be noted that many regions provide for extended maternity leave in addition to the statutory maternity leave, and if the extended maternity leave is not included in the maternity allowance payment cycle according to local policies, the employer shall pay the female employee according to the salary standard before the maternity leave. For example, in Beijing, before the Beijing Municipal Population and Family Planning Regulations were amended in 2021, female employees were required to “enjoy 30 days of maternity incentive leave in addition to the maternity leave stipulated by the state”, and the 30-day extended maternity leave was entitled to maternity allowance in accordance with the provisions of the Notice on Adjusting the Relevant Policies of Maternity Insurance for Employees in Beijing (Jingren She Yifa [2016] No. 99) issued by the Beijing Municipal Bureau of Human Resources and Social Security^[1]； However, the 30-day extended maternity leave, which was amended in 2021 and added on the basis of the previous one, has not yet been covered by the maternity allowance payment cycle, during which employers are required to pay wages to female employees.

4. Employers shall guarantee the special leave rights of female employees

(1) On the issue of whether overtime pay should be paid for overtime work on Women’s Day

The “Measures for Holidays on National Festivals and Memorial Days” stipulates that March 8 is Women’s Day, and Women’s Day is a half-day holiday. Article 40 of the Explanation on Several Provisions of the > of the < Labour Law stipulates that if Women’s Day falls on a rest day, there is no need to arrange compensatory holidays.

On the question of whether employers should pay overtime pay to female employees who work on Women’s Day, the General Office of the Ministry of Labor and Social Security replied in the Letter on Issues Concerning Wages Related to Holidays for Some Citizens (Lao She Ting Han [2000] No. 18), that is, “during the holidays of some citizens, the employer shall pay wages and remuneration to employees who participate in social or unit celebrations and work as usual, but not overtime wages.” If the holiday falls on a Saturday or Sunday, and the employer arranges for employees to work overtime, it shall pay the overtime work on the rest day in accordance with the law.” In other words, if Women’s Day is a working day and no female employee is scheduled to take a holiday on that day, there is no need to pay overtime pay to female employees in addition to their wages on that day.

(2) Regarding the special leave system for female employees in the third period

The three periods stipulated in the Labor Law include pregnancy, childbirth, and lactation, and the aforementioned period is a special period for female employees to live and work, and China has established a corresponding maternity leave system for female employees. Employers shall strictly implement the leave system for female employees during childbirth, and protect the labor rights and interests of female employees. 

Female employees in the fifth and third periods are protected by the dissolution and termination of labor contracts

According to Article 42 of the Labor Contract Law, if a female employee is pregnant, giving birth or breastfeeding, the employer shall not comply with Article 40 of the Labor Contract Law^[2]The provision for no-fault dismissal is also not in accordance with Article 41^[3]Provision is made for economic layoffs. In addition, according to Article 45 of the Labor Contract Law, if a female employee is pregnant, giving birth or breastfeeding at the end of the labor contract, the labor contract shall be extended until the relevant circumstances disappear.

In accordance with the above-mentioned provisions, the Labor Contract Law stipulates certain protective measures and restrictions on the dissolution and termination of the labor contract of a female employee in the third period, and the employer shall not directly dissolve or terminate the labor contract of a female employee in the third period in violation of the aforementioned provisions.

Exegesis:

[1] Notice of the Beijing Municipal Bureau of Human Resources and Social Security on Adjusting the Relevant Policies of Maternity Insurance for Employees in Beijing (Jing Ren She Yi Fa [2016] No. 99)

1. According to the newly revised “Beijing Population and Family Planning Regulations”, the 30-day maternity incentive leave will be increased and the 30-day late maternity leave will be abolished. The wages during the period of maternity leave and maternity incentive leave prescribed by the state shall be paid by the maternity insurance fund in accordance with the standard of maternity allowance.

If the insured person gives birth after January 1, 2016, and has received the maternity allowance for late maternity leave according to the original provisions before the issuance of this notice, he will no longer enjoy the maternity allowance of maternity incentive leave. The maternity allowance for late maternity leave and the maternity allowance for maternity incentive leave shall not be enjoyed at the same time.

[2] Labor Contract Law

Article 40 Under any of the following circumstances, the employer may terminate the labor contract after giving 30 days’ written notice to the worker or paying the employee an additional month’s salary:

(1) The worker is sick or injured not due to work, and is unable to perform his original job or work arranged by the employer after the prescribed medical treatment period has expired;

(2) The worker is incompetent for the job, and is still incompetent for the job after training or job adjustment;

(3) There is a major change in the objective circumstances on which the labor contract is based at the time of conclusion, which makes it impossible to perform the labor contract, and the employer and the employee fail to reach an agreement on changing the content of the labor contract after consultation.

[3] Labor Contract Law

Article 41 In any of the following circumstances, where it is necessary to lay off 20 or more employees, or less than 20 but accounting for more than 10% of the total number of employees of the enterprise, the employer shall explain the situation to the trade union or all employees 30 days in advance, and after listening to the opinions of the trade union or employees, it may reduce the number of personnel after reporting the personnel reduction plan to the labor administrative department:

(1) Reorganization is carried out in accordance with the provisions of the Enterprise Bankruptcy Law;

(2) Serious difficulties occur in production and operation;

(3) Where it is still necessary to lay off personnel after the labor contract has been changed for the enterprise to change production, major technological innovation, or adjustment of business mode;

(4) Other situations where the labor contract cannot be performed due to major changes in the objective economic conditions on which the labor contract is based.

When reducing personnel, priority shall be given to the following personnel:

(1) Entering into a fixed-term labor contract with the unit for a longer period of time;

(2) Entering into an indefinite labor contract with the unit;

(3) There are no other employed persons in the family, and there are elderly or minors who need to be supported.

Where an employer lays off personnel in accordance with the provisions of the first paragraph of this Article and rehires personnel within six months, it shall notify the personnel who have been laid off and give priority to the personnel who have been laid off under the same conditions.

Anjie Broad, China, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact china@transatlanticlaw.com

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