(New) labor rules for gig workers & Big Tech in China

For food delivery workers, Uber-like drivers, and the "platforms."

Very briefly, before today’s main dish: The Wall Street Journal opinion has corrected the apparent errors sourced directly from the 84-page addendum on COVID-19 origins tracing from the House Foreign Affairs Committee minority staff, led by ranking Republican Rep. Michael McCaul (Tex.).

That followed my Aug. 17 emails to them and - two days later - a Pekingnology newsletter, though I can’t 100% link them with the correction, as the Journal’s opinion pages could also have heard from others.

So far, a similar correction hasn’t been seen from the Washington Post opinion or the Media Contact of Rep. McCaul, who has also been emailed.

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This newsletter features a full translation of the 关于维护新就业形态劳动者劳动保障权益的指导意见 (Mandarin) Guidelines on protecting the rights and interests of workers in new forms of employment and some notes.

The document, published in mid-July by eight central-level bodies led by the Ministry of Human Resources and Social Security, was briefly mentioned in the Aug 17 Pekingnology newsletter presenting some background for Hong Kong-listed food delivery giant Meituan’s slump in valuation in late July.

But this document needs higher visibility because its scope is much wider than just food delivery, covering also online car-hailing drivers, truck drivers, and internet marketing specialists. That means other Chinese tech companies such as Didi, which relies on an army of drivers, are also under its jurisdiction.

If you need an absolute number for reference, Premier Li Keqiang said China counts over 200 million flexible workers and a 2021 report by the State Information Center counted 84 million workers in the “sharing economy” which includes food delivery, car-hailing, office sharing, accommodation, etc.

Also, a deep dive into the government text helps understand - at least part of - the exact details of what’s been widely termed as China’s crackdown or attack at Big Tech: what Beijing expects from them and for their stakeholders - in this case, their workers, especially those at the lower end.

Again, this newsletter is neither official nor authoritative and doesn’t reflect the views of anyone besides your Pekingnologist.

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人力资源社会保障部 国家发展改革委 交通运输部 应急部
市场监管总局 国家医保局 最高人民法院 全国总工会
关于维护新就业形态劳动者劳动保障权益的指导意见

Guidelines on protecting the rights and interests of workers in new forms of employment

Jointly issued by the Ministry of Human Resources and Social Security, the National Development and Reform Commission, the Ministry of Transport, the Ministry of Emergency Management, the State Administration for Market Regulation, the National Healthcare Security Administration, the Supreme People's Court, and the All-China Federation of Trade Unions

近年来,平台经济迅速发展,创造了大量就业机会,依托互联网平台就业的网约配送员、网约车驾驶员、货车司机、互联网营销师等新就业形态劳动者数量大幅增加,维护劳动者劳动保障权益面临新情况新问题。为深入贯彻落实党中央、国务院决策部署,支持和规范发展新就业形态,切实维护新就业形态劳动者劳动保障权益,促进平台经济规范健康持续发展,经国务院同意,现提出以下意见:

In recent years, with the rapid development of the platform economy, a large number of employment opportunities have been created and the number of workers engaged in new forms of employment, such as delivery personnel for online orders, online car-hailing drivers, truck drivers, and internet marketing specialist, has increased massively. But these workers face new situations and problems in protecting their rights and interests. In order to thoroughly implement the Party Central Committee and the State Council’s major policies and plans, support and regulate the development of new forms of employment, protect the rights and interests of workers in new forms of employment, and promote the well-regulated, sound, and sustainable development of platform economy, with the consent of the State Council, we issue the following guidelines:

一、规范用工,明确劳动者权益保障责任

1、 Regulate the use of labor, define the responsibility to protect their rights and interests

(一)指导和督促企业依法合规用工,积极履行用工责任,稳定劳动者队伍。主动关心关爱劳动者,努力改善劳动条件,拓展职业发展空间,逐步提高劳动者权益保障水平。培育健康向上的企业文化,推动劳动者共享企业发展成果。

(1)We shall guide and supervise the enterprises to employ workers in accordance with laws and regulations, actively fulfill their responsibilities in employment, and stablize the workforce. Enterprises shall provide care and support for their employees and make efforts to improve the working conditions, expand the career development space, and gradually improve the protection of the rights and interests of their workforce. Enterprises need to foster a healthy and positive enterprise culture and share the fruits of development with their workforce.

(二)符合确立劳动关系情形的,企业应当依法与劳动者订立劳动合同。不完全符合确立劳动关系情形但企业对劳动者进行劳动管理(以下简称不完全符合确立劳动关系情形)的,指导企业与劳动者订立书面协议,合理确定企业与劳动者的权利义务。个人依托平台自主开展经营活动、从事自由职业等,按照民事法律调整双方的权利义务。

(2)Enterprises and workers should sign employment contracts in accordance with laws under the circumstance where a labor relationship can be established. If the enterprises and workers do not fully conform to the circumstance where an employment relationship can be established, but the enterprises exercise management over workers’ labor, we shall guide them to conclude a written agreement to reasonably determine the rights and obligations of each side. For individuals who conduct their own business operations or do freelance work on the platforms, the rights and obligations of both sides fall under civil laws.

(三)平台企业采取劳务派遣等合作用工方式组织劳动者完成平台工作的,应选择具备合法经营资质的企业,并对其保障劳动者权益情况进行监督。平台企业采用劳务派遣方式用工的,依法履行劳务派遣用工单位责任。对采取外包等其他合作用工方式,劳动者权益受到损害的,平台企业依法承担相应责任。

(3) If platform enterprises organize workers to complete the platform’s work through cooperative employment such as labor leasing, they should select companies with legal business qualifications and supervise them to protect the rights and interests of the workers. If the platform enterprises employ workers through labor leasing, they should fulfill the responsibilities of the labor dispatch employing unit in accordance with laws. If the rights and interests of workers are damaged in employment outsourcing and other cooperative employment methods, the platform enterprises should assume the relevant responsibilities in accordance with laws.

Note: Many jurisdictions are adapting to the new reality in the times of a gig economy. It happens that a Californian judge just ruled Proposition 22  is unconstitutional. To your Pekingnologist, whether Uber and Lyft drivers in California are employees or independent contractors is similar to the question that the guidelines are grappling with: if Meituan riders and Didi drivers are not their employees per se, how should their rights and interests be protected? Bottom line: Chinese Big Tech cannot say it’s none of their business.

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二、健全制度,补齐劳动者权益保障短板

2、 Further develop the institutions and shore up the weakness in protecting the workers' rights and interests

(四)落实公平就业制度,消除就业歧视。企业招用劳动者不得违法设置性别、民族、年龄等歧视性条件,不得以缴纳保证金、押金或者其他名义向劳动者收取财物,不得违法限制劳动者在多平台就业。

(4) We shall implement a fair employment system to eliminate discrimination. When recruiting workers, enterprises shall not illegally set discriminatory conditions such as gender, ethnicity, and age, nor should they collect money or assets from workers in the name of guarantee deposit or in other names, or illegally restrict workers' employment on multiple platforms.

Note:

You deliver food for one platform, the platform must not forbid you to deliver food for its competitor. Similarly, you should also be able to drive for two or more car-hailing services.

(五)健全最低工资和支付保障制度,推动将不完全符合确立劳动关系情形的新就业形态劳动者纳入制度保障范围。督促企业向提供正常劳动的劳动者支付不低于当地最低工资标准的劳动报酬,按时足额支付,不得克扣或者无故拖欠。引导企业建立劳动报酬合理增长机制,逐步提高劳动报酬水平。

(5) Efforts will be made to improve the minimum wages and payment guarantee system and bring the workers in new forms of employment, who do not fully conform to the circumstance to establish a labor relationship with enterprises, into the coverage of state support. We shall supervise the enterprises to ensure that the workers who have done their job earn no less than the local minimum wage. The wages should be paid on time and in full and the enterprises shall not embezzle them or delay in payment without reason. We shall guide enterprises to establish a reasonable mechanism for pay rise, and gradually improve the wages.

Notes: Even if the delivery workers are not employees per se, they shall still enjoy some protection. The minimum wage applies. They are entitled to *some* pay rise as well.

(六)完善休息制度,推动行业明确劳动定员定额标准,科学确定劳动者工作量和劳动强度。督促企业按规定合理确定休息办法,在法定节假日支付高于正常工作时间劳动报酬的合理报酬。

(6) We shall improve the system to better protect the workers’ right to time off, promote the standardization of labor quotas in the respective industry and scientifically determine the labor intensity and workload of the workers. We shall supervise the enterprises to make reasonable rules on working hours and rest according to regulations, and pay workers remunerations that are reasonably higher than those for normal working hours if the work is arranged on statutory holidays.

Note: Yes it’s a crackdown on overtime and insufficient pay for work on legal holidays.

(七)健全并落实劳动安全卫生责任制,严格执行国家劳动安全卫生保护标准。企业要牢固树立安全“红线”意识,不得制定损害劳动者安全健康的考核指标。要严格遵守安全生产相关法律法规,落实全员安全生产责任制,建立健全安全生产规章制度和操作规程,配备必要的劳动安全卫生设施和劳动防护用品,及时对劳动工具的安全和合规状态进行检查,加强安全生产和职业卫生教育培训,重视劳动者身心健康,及时开展心理疏导。强化恶劣天气等特殊情形下的劳动保护,最大限度减少安全生产事故和职业病危害。

(7) We shall improve and enforce the accountability system for occupational safety and health, and strictly implement the national standards for the protection of the workers’ safety and health. Enterprises should strengthen their consciousness of workplace safety and not develop indicators for performance appraisal that will undermine the safety and health of the workers. Relevant laws and regulations concerning safety in production shall be strictly abided by, with all the staff shouldering the responsibility of production safety. Safety regulations and operation rules need to be formulated and improved. Workers need to be equipped with necessary work protection gears and facilities of occupational safety and health, and their tools should be timely inspected. Enterprises shall strengthen the education and training on workplace safety and occupational health, and pay attention to the physical and mental health of the workers, providing them with psychological guidance in time. Occupational protection under special circumstances, such as bad weather, should be strengthened in order to minimize workplace accidents and occupational disease hazards.  

(八)完善基本养老保险、医疗保险相关政策,各地要放开灵活就业人员在就业地参加基本养老、基本医疗保险的户籍限制,个别超大型城市难以一步实现的,要结合本地实际,积极创造条件逐步放开。组织未参加职工基本养老、职工基本医疗保险的灵活就业人员,按规定参加城乡居民基本养老、城乡居民基本医疗保险,做到应保尽保。督促企业依法参加社会保险。企业要引导和支持不完全符合确立劳动关系情形的新就业形态劳动者根据自身情况参加相应的社会保险。

(8) We shall improve the policies related to basic endowment/pension insurance and medical insurance. All regions shall relax hukou/household registration-based restrictions to allow workers in flexible employment to access these insurances in the locality where they work even. In few megacities where this cannot be achieved in one step, the megacities shall in combination with local reality actively create conditions to gradually lift the hukou/household registration restrictions for the flexibly employed to enroll in these insurance schemes in places where they work.

We shall organize people in flexible employment to enroll in basic endowment/pension and medical insurance schemes if they haven’t, to make sure that whoever should have enrolled is enrolled.

Enterprises shall participate in social insurance schemes. They shall guide and support workers in new forms of employment who do not fully meet the conditions for establishing employment relations to participate in relevant social insurance schemes according to their own conditions.

Note: The much-maligned linkage of hukou/household registration and social benefits are further broken here.

When participating in social insurance schemes in China, the employer and the employee share the burden of paying the premium.

(九)强化职业伤害保障,以出行、外卖、即时配送、同城货运等行业的平台企业为重点,组织开展平台灵活就业人员职业伤害保障试点,平台企业应当按规定参加。采取政府主导、信息化引领和社会力量承办相结合的方式,建立健全职业伤害保障管理服务规范和运行机制。鼓励平台企业通过购买人身意外、雇主责任等商业保险,提升平台灵活就业人员保障水平。

(9) We shall advance occupational injury insurance and carry out pilot programs for people in new forms of employment. Platform enterprises should participate in the trials with the focus on sectors like traveling, food delivery, instant delivery and intra-city freight. We shall establish and improve norms of management and services and operating mechanisms for occupational injury insurance, combing the leading role of the government with informatization and public participation. Platform enterprises are encouraged to purchase commercial insurance such as personal accident insurance and employers’ liability insurance to better protect the flexible employees on the platform.

Note: This is about protecting flexible workers against accidents. Insurance companies selling accident insurance and employers’ liability policies could benefit from the requirement.

(十)督促企业制定修订平台进入退出、订单分配、计件单价、抽成比例、报酬构成及支付、工作时间、奖惩等直接涉及劳动者权益的制度规则和平台算法,充分听取工会或劳动者代表的意见建议,将结果公示并告知劳动者。工会或劳动者代表提出协商要求的,企业应当积极响应,并提供必要的信息和资料。指导企业建立健全劳动者申诉机制,保障劳动者的申诉得到及时回应和客观公正处理。

(10) We shall supervise the enterprises to formulate and revise platform rules and algorithms in areas like entry to and exit from the platform, order distribution, unit price for each delivery, commission/revenue sharing, remuneration composition and payment method, rewards and punishments and working hours that are directly related to the workers’ rights and interests. The enterprises should take full account of the views and suggestions from the trade unions or the representatives of the workers, make public the handling results and inform the workers of the results. The enterprises shall actively respond to the negotiation requests from the trade unions or labor representatives and provide necessary information and documents. We shall guide the enterprises to establish and improve labor complaint mechanisms to ensure that the employees' complaints are responded in a timely manner and addressed objectively and fairly.

Note: The tech companies are asked to take full account of the views and suggestions from the trade unions or the representatives of the workers.

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三、提升效能,优化劳动者权益保障服务

Improve efficiency and optimize services for protecting workers' rights and interests

(十一)创新方式方法,积极为各类新就业形态劳动者提供个性化职业介绍、职业指导、创业培训等服务,及时发布职业薪酬和行业人工成本信息等,为企业和劳动者提供便捷化的劳动保障、税收、市场监管等政策咨询服务,便利劳动者求职就业和企业招工用工。

(11) New approaches are adopted to provide services for workers in new forms of employment, such as personalized occupation introduction, vocational guidance, and entrepreneurship training. We shall timely release information concerning wages and labor costs, provide advisory services about labor security, taxation, and market regulation to facilitate the employment of the workers and the recruitment of the enterprises.

(十二)优化社会保险经办,探索适合新就业形态的社会保险经办服务模式,在参保缴费、权益查询、待遇领取和结算等方面提供更加便捷的服务,做好社会保险关系转移接续工作,提高社会保险经办服务水平,更好保障参保人员公平享受各项社会保险待遇。

(12) We shall optimize the services facilitating participation in social insurance, and explore the service models suitable for the new forms of employment. More convenient services will be provided in social insurance premium payment, inquiries, as well as benefits receiving and account settlement. We shall do well in the transfer of social insurance account (from one region to another), improving services to better ensure that those enrolled in social insurance fairly enjoy the social insurance benefits.

Note: The logistics in participation in and delivery of social insurance are no small task, as, to repeat, Premier Li Keqiang said China counts over 200 million flexible workers and a 2021 report by the State Information Center counted 84 million workers in the “sharing economy” which includes food delivery, car-hailing, office sharing, accommodation, etc.

(十三)建立适合新就业形态劳动者的职业技能培训模式,保障其平等享有培训的权利。对各类新就业形态劳动者在就业地参加职业技能培训的,优化职业技能培训补贴申领、发放流程,加大培训补贴资金直补企业工作力度,符合条件的按规定给予职业技能培训补贴。健全职业技能等级制度,支持符合条件的企业按规定开展职业技能等级认定。完善职称评审政策,畅通新就业形态劳动者职称申报评价渠道。

(13)A vocational skill training model tailored for workers in new forms of employment should be established, and their equal right to training should be protected. For those who participate in vocational skill training in the place where they work, the application and distribution of vocational skill training subsidies should be optimized. Meanwhile, we will step up efforts to directly subsidize enterprises with training subsidy funds. Those who meet the requirements should be given vocational skill training subsidies according to the regulations. We will refine the grading system of vocational skills and support qualified enterprises in ascertaining vocational skill grades by rule. We will improve the policy for evaluating professional titles, and open up channels for workers in new forms of employment to apply for and evaluate their professional titles.

(十四)加快城市综合服务网点建设,推动在新就业形态劳动者集中居住区、商业区设置临时休息场所,解决停车、充电、饮水、如厕等难题,为新就业形态劳动者提供工作生活便利。

(14)In order to make the life and work more convenient for workers in new forms of employment, we shall speed up the construction of comprehensive service sites in the cities, and promote the establishment of temporary rest places in residential and commercial areas where these workers are concentrated, thus solving problems such as parking, charging, drinking water, and going to the restroom.

Note: It is actually quite practical - if you are constantly delivering food or driving a cab, where do you go for water and toilets?

(十五)保障符合条件的新就业形态劳动者子女在常住地平等接受义务教育的权利。推动公共文体设施向劳动者免费或低收费开放,丰富公共文化产品和服务供给。

(15) For the children of the workers in new employment forms who met certain conditions, we shall safeguard that they have the equal right to compulsory education in the locality where they reside. Public cultural and sports facilities are encouraged to open to the workers free of charge or at low rates, and the supply of public cultural products and services shall be diversified.

Note: This further breaks the linkage of hukou/household registration and social benefits - for the flexible worker who met certain conditions.

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四、齐抓共管,完善劳动者权益保障工作机制

Work together and improve the working mechanism for protecting workers' rights and interests.

(十六)保障新就业形态劳动者权益是稳定就业、改善民生、加强社会治理的重要内容。各地区要加强组织领导,强化责任落实,切实做好新就业形态劳动者权益保障各项工作。人力资源社会保障部、国家发展改革委、交通运输部、应急部、市场监管总局、国家医保局、最高人民法院、全国总工会等部门和单位要认真履行职责,强化工作协同,将保障劳动者权益纳入数字经济协同治理体系,建立平台企业用工情况报告制度,健全劳动者权益保障联合激励惩戒机制,完善相关政策措施和司法解释。

(16) Safeguarding the rights and interests of workers in new forms of employment is an important part of keeping employment stable, improving people's well-being, and strengthening social governance. All regions should strengthen the organizational leadership and accountability, making solid efforts in the protection of the rights and interests of workers in new forms of employment. The Ministry of Human Resources and Social Security, the National Development and Reform Commission, the Ministry of Transport, the Ministry of Emergency Management, the State Administration for Market Regulation, the National Healthcare Security Administration, the Supreme People's Court, the All-China Federation of Trade Unions and other departments and units should earnestly perform their duties, strengthen coordination, incorporate the rights and interests of the workers into a digital economy collaborative governance system. Also, the system of reporting on the employment situation of platform enterprises shall be established. We will improve the joint reward and punishment mechanism for protecting workers' rights and interests, and optimize relevant policies, measures, and judicial interpretations.

Note: All of them will do their part.

(十七)各级工会组织要加强组织和工作有效覆盖,拓宽维权和服务范围,积极吸纳新就业形态劳动者加入工会。加强对劳动者的思想政治引领,引导劳动者理性合法维权。监督企业履行用工责任,维护好劳动者权益。积极与行业协会、头部企业或企业代表组织开展协商,签订行业集体合同或协议,推动制定行业劳动标准。

(17) Trade unions at all levels should strengthen their organization management, ensure the effective coverage of their work, expand the scope of rights protection and services, and actively attract workers in new forms of employment to join them. We will strengthen the ideological and political guidance on the workers and guide them to protect their rights and interests in a rational and lawful manner. The enterprises shall be supervised to fulfill their employment responsibilities, safeguard the rights and interests of the workers. Efforts should be made on the part of the trade unions to negotiate with industry associations, leading enterprises, or enterprise representatives, sign industry-wide collective contracts or agreements, and promote the formulation of industry-wide labor standards.

Note: Job for the Chinese trade union.

(十八)各级法院和劳动争议调解仲裁机构要加强劳动争议办案指导,畅通裁审衔接,根据用工事实认定企业和劳动者的关系,依法依规处理新就业形态劳动者劳动保障权益案件。各类调解组织、法律援助机构及其他专业化社会组织要依法为新就业形态劳动者提供更加便捷、优质高效的纠纷调解、法律咨询、法律援助等服务。

(18) Courts at all levels, as well as mediation and arbitration institutions on employment disputes, shall step up guidance on handling labor disputes, smoothen the connection between arbitration and adjudication, affirm the relationship between enterprises and workers on the basis of facts in employment, and handle cases regarding labor rights and interests for workers in new employment forms according to laws and regulations. Mediation institutions, legal aid agencies, and other specialized social institutions shall provide more convenient, high-quality, and efficient services such as dispute mediation, legal consultancy, and legal aid for workers in new forms of employment in accordance with the law.

Note: Substance over form, when disputes arise - the flexible workers’ relationship with the enterprises shall be based on facts.

(十九)各级人力资源社会保障行政部门要加大劳动保障监察力度,督促企业落实新就业形态劳动者权益保障责任,加强治理拖欠劳动报酬、违法超时加班等突出问题,依法维护劳动者权益。各级交通运输、应急、市场监管等职能部门和行业主管部门要规范企业经营行为,加大监管力度,及时约谈、警示、查处侵害劳动者权益的企业。

(19) The administrative departments for human resources and social security at all levels should strengthen the oversight on labor security, supervise the enterprises to fulfill their duties of protecting the rights and interests of workers in new forms of employment. Efforts should be made to solve prominent problems, like delayed payment for wages and illegal overtime work, and protect the rights and interests of workers by law. Relevant departments in charge of transport, emergency management, as well as market regulation at all levels should regulate the business operations, strengthen supervision, timely investigate all kinds of interests-violating cases and hold regulatory talk with and give due punishment to enterprises involved.

Note: Delayed payment for wages and illegal overtime time are prominent problems. Tech companies being invited for tea by the named regulators, including in different regions, shall not be a surprise.

各地区各有关部门要认真落实本意见要求,出台具体实施办法,加强政策宣传,积极引导社会舆论,增强新就业形态劳动者职业荣誉感,努力营造良好环境,确保各项劳动保障权益落到实处。

All relevant departments in all regions shall earnestly implement the guidance and rolled out specific measures. Also, the publicity of the above policies should be strengthened to positively guide public opinion. We shall enhance the sense of honor of the workers in new employment forms towards their profession and create a sound environment where all labor rights and interests are well-protected.

The translation is by Alexander Wang, a contributor. The introduction and notes are by Zichen Wang, founder of Pekingnology.