By Linda LIANG, LIU Piao King & Wood Mallesons

On April 24, 2017, Beijing Higher People’s Court and Beijing Labor and Personnel Dispute Arbitration Commission jointly issued the Answer on the Legal Application of Labor Dispute Cases (hereafter referred to as “the Answer”). Article 11, Section 3 of the Answer adopts a lenient attitude towards the standard of reviewing unlawful dismissals during the probation period. The Answer clearly points out that, when determining whether laborers meet the recruitment conditions, the standard applied during the probation period may be moderately lower than that after the expiration of the probation period. More than one year has passed since the Answer was issued, by reviewing recent judgments made by arbitration commissions and courts on dismissals during the probation period, further analysis is made regarding new changes as below. Continue Reading New Trends in the Judiciary: How to Dismiss Employees during the Probation Period?

作者:尹居全 张元浩 金杜律师事务所

生病看医生是人之常情,谁也不能保证自己百毒不侵永远健康,请病假休息也是劳动者的法定权利。《劳动法》、《劳动合同法》均规定劳动者在病假期间享受病假工资和相应的社会保险待遇,且一定程度上免于在无过错的前提下被单方解除或终止劳动合同。但劳动者请病假也并非随心所欲,《企业职工患病或非因工负伤医疗期规定》进一步规定了医疗期以明确劳动者享受病假的方式和限制。虽然对生病的员工应该给予阳光般的关怀,但对于恶意请“病假”和病假超过了法定额度的情况,用人单位还是不得不严肃对待,下面我们就说说用人单位需要注意的病假那些事儿。 Continue Reading 病假那些事儿

By Jiang Junlu  and Luo Kaitian King & Wood Mallesons’ Commercial & Regulatory Group

Wjiang_junluith the development of Chinese economy, more and more foreigners are being employed in China, among which there is a group of “Laowai” who has already reached or even passed the Chinese statutory retirement age (the “Elderly Foreigners”). The Elderly Foreigners are not like their Chinese fellows who are retired completely at the age of 55 or 60, but still being active at their jobs or even acting as middle-level and high-level managers or technicians in many companies. The question is, whether the employment form of the Elderly Foreigners is service or employment under Chinese law?

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By King & Wood Mallesons Healthcare Group

On February 1, 2013, the Interpretation of Several Issues on the Application of Laws of Employment Disputes IV (the “Interpretation “) was promufgulated by the Supreme Court and implemented on the same day pursuant to Labor Law of People’s Republic of China, Employment Contract Law of People’s Republic of China, and Employment Dispute Mediation and Arbitration Law of People’s Republic of China and other relevant laws, regulations and civil practices. We hereby illustrate and analyze the Interpretation as follows for pharmaceutical companies’ information when dealing with employment issues, especially for the employment dispute, non-competitions, etc. Continue Reading Executive Summary of the Interpretation of the Supreme Court on Several Issues on the Application of Laws of Employment Disputes IV

By King & Wood Mallesons’ Labor Group

Beijing Implementation Rules on Regulations on Work-Related Injury Insurance (Beijing Municipal Decree No. 242) (hereinafter "the Rules") was released and effective on December 5th, 2011. Based on the Regulations on Work-Related Injury Insurance promulgated by the State Council of the People’ s Republic of China and taking into consideration the Beijing practice, the Rules details the determination of work-related injuries, appraisal of work capability, and payment of work-related injury benefits, etc.

With regard to the determination procedure of work-related injuries, the Rules for the first time ever provides that if labor dispute concerning determination of the employment relationship affects the determination of work-related injuries, the labor dispute must be resolved in accordance with law before the application for work-related injury determination, and the time for resolving the labor dispute is excluded from the time limit for applying for the determination. In addition, the Rules establishes the scheme of designation of jurisdiction for work-related injury determination, i.e. when departments of work-related injury determination at district or county level deem that the application for determination is out of their jurisdiction, they shall report the application to the municipal social insurance administrative departments for designation of jurisdiction.

Continue Reading Beijing Released New Regulations on Work-Related Injury Insurance: Time for Resolving Labor Disputes Excluded from Time Limit for Applying for Work-Related Injuries Determination

作者:金杜律师事务所劳动

《北京市实施〈工伤保险条例〉若干规定》(北京市人民政府令第242号)(以下简称“《规定》”)已于2011年12月5日发布并实施。《规定》在国务院《工伤保险条例》的基础上,结合北京市的实际情况,对工伤认定、劳动能力鉴定、工伤保险待遇支付等方面进行了细化规定。

在工伤认定程序上,《规定》首次提出,因确认劳动关系发生争议而影响工伤认定的,应当在申请工伤认定前依法解决劳动争议,且解决劳动争议的时间将不计算在工伤认定申请时限内。此外,《规定》还建立了工伤认定的指定管辖制度,即区、县工伤鉴定部门认为工伤认定申请不属于本辖区管辖的,应当及时报请市社会保险行政部门指定管辖。

Continue Reading 北京出台实施工伤保险新规:解决劳动争议不计入工伤认定申请时限

By King & Wood’s Labor & Employment Group

The State Administration of Work Safety passed the Decision on the Amendment to the Interim Punishment Rules for the Regulations on Reporting and Investigating Work Safety Accidents (hereinafter the "Decision") on August 29th, 2011. The Decision will be effective as of November 1st, 2011.

Continue Reading Penalty for Lying about or Concealing Work Safety Accidents Up to RMB 5 Million

By King & Wood’s Labor Group

On November 21, 2011, the Legislative Affairs Office of the State Council released a notice to solicit public comments on the Regulations on Special Labor Protection for Female Employees (the "Draft Regulations"). The deadline for receiving comments on the Draft Regulations is December 23, 2011. The appendix of the Draft Regulations lists the scope of work prohibited to be assigned to female employees.

Continue Reading China Releases Regulations on Special Labor Protection for Female Employees

作者:金杜律师事务所劳动

2011年11月21日,国务院法制办公室(国务院法制办)发布通知,就《女职工特殊劳动保护条例(征求意见稿)》向社会各界征求反馈。本次意见征即截止至2011年12月23日,征求意见稿将女职工禁忌劳动范围作为条例的附录加以列示。

Continue Reading 中国细化对女职工特殊劳动保护

By Xu Xiaodan King & Wood’s Labor Group

The Provisional Measures on Social Insurance for Foreigners Working in China (the "Provisional Measures ") were issued on September 6, 2011 by the Ministry of Human Resources and Social Security and will come into effect on October 15, 2011. The Provisional Measures provide more specific rules on the requirement that foreigners working in mainland China should participate in the PRC social insurance scheme as stipulated in the PRC Social Insurance Law (promulgated on August 28, 2010, and came into effect on July 1, 2011). The Provisional Measures serve as a supplement to the provisions of the PRC Social Insurance Law.

Highlights:

Continue Reading Shared Benefit or Shared Burden? Provisional Measures on Social Insurance for Foreigners Working in China