China Law Library

Guidance for the Protection of Gig Worker Rights

CBL’s Introduction

Gig workers in China’s emerging gig economy are often denied contracts, underpaid, and excluded from social insurance. The following government circular, translated to American English by CBL, outlines guidance for platforms to sign gig workers, pay minimum wage, offer insurance, and disclose how their algorithms assign work. Companies that ignore these rules face heavy fines and regulatory crackdowns.

Contents

Guidance for the Protection of Gig Worker Rights

Ministry of Human Resources and Social Security Circular No. 56 (2021)

To all provincial, autonomous region, and home rule city governments, high courts, labor union federations, Xinjiang Production and Construction Corps, the Xinjiang Uygur Autonomous Region Production and Construction Corps Court under the High Court, and the Xinjiang Production and Construction Corps Federation of Labor Unions:

The recent rapid expansion of the platform economy has generated a significant number of job opportunities, leading to a sharp increase in the number of gig workers on digital platforms, including delivery drivers, ride-hailing drivers, freight truck drivers, and digital marketers. This trend presents new challenges for the protection of workers’ rights. We hereby issue the following guidelines to implement directives issued by the Communist Party of China Central Committee and State Council, and better regulate emerging forms of employment, protect the rights of gig workers, and support the sustainable growth of the platform economy:

Regulating Employment Practices and Specific Worker Protection Obligations for Employers

(a) Businesses should be guided and monitored to ensure that employment practices are legally compliant, all employer obligations are fulfilled, and that they maintain a stable workforce. Employers should be encouraged to actively prioritize worker well-being, improve working conditions, and provide opportunities for career development to gradually improve worker rights protections, and to create a positive corporate culture that shares success with its employees.

(b) Businesses should be required to enter into employment contracts with workers when the conditions for establishing an employment relationship are met pursuant to law. Businesses should be guided to determine reasonable rights and obligations for both parties and enter into written agreements with those workers they manage who do not meet the conditions for formal employment (“workers who do not meet the criteria for formal employment”). The rights and obligations of both digital platforms and the individuals relying on digital platforms to conduct business and perform freelance work shall be governed by civil law.

(c) Digital platforms using workers to complete platform work through contract staffing or other temporary work arrangements must engage legally licensed staffing agencies to hire such workers and actively oversee their protection of worker rights. Digital platforms using workers through contract staffing must fulfill their obligations as staffing clients pursuant to law. Digital platforms using outsourcing or other temporary employment arrangements in a manner that violates worker rights shall be held liable pursuant to law.

Improving Worker Protection Policies and Addressing the Protection of Worker Rights

(d) Businesses should ensure fair employment practices to eliminate discrimination in the workplace, and are prohibited from hiring practices that unlawfully discriminate against gender, ethnicity, age, or other protected characteristics. Moreover, businesses shall not impose unlawful fees, such as security deposits, or otherwise restrict workers from working through multiple digital platforms.

(e) Efforts must be made to improve minimum wage standards and payment protection systems for gig workers who do not meet the criteria for formal employment. Businesses should be monitored to ensure that workers are compensated at the local minimum wage or higher rates, and that wages are paid in full and on time without unlawful deductions or unjustified delays. Additionally, businesses should receive guidance on implementing reasonable worker compensation and benefit policies and gradually increasing the compensation and benefits afforded to workers.

(f) Refine policies for time-off, specify industry criteria for standard units of work, and establish reasonable workloads and work intensity levels. Businesses should be guided to implement reasonable policies for time off pursuant to law and compensate workers for work done on public holidays at appropriate rates higher than their regular wages.

(g) Refine and implement occupational safety and health accountability systems and ensure strict compliance with national occupational safety and health protection standards. Businesses should establish an occupational safety compliance culture, and businesses must not set performance expectations that compromise worker health and safety. Businesses should be required to strictly comply with applicable workplace safety laws and maintain occupational health and safety accountability systems covering all workers, including without limitation developing and improving occupational safety policies and operational protocols, providing occupational safety and health facilities and appropriate personal protective equipment, conducting regular safety and compliance checks on production equipment, and providing occupational safety and health training and mental health support to maintain worker physical and mental health. Businesses should also improve protections for workers working in atypical conditions, such as extreme weather, to minimize workplace incidents and occupational illness risks.

(h) Local governments should improve access to pensions and health insurance. Household registration restrictions preventing gig workers from enrolling in retirement and health insurance in the areas where they work should be lifted. Local conditions should be considered in major urban areas unable to lift all restrictions at once, and restrictions should be systematically lifted as necessary. Gig workers not covered by employer-sponsored retirement and health insurance plans should receive assistance in enrolling in appropriate local government residents’ retirement and health insurance plans to ensure full coverage. Businesses should be actively monitored to ensure all employees are enrolled in social security pursuant to law. Businesses must encourage and support gig workers who do not meet the criteria for formal employment to enroll in the appropriate social security programs as necessary.

(i) Occupational injury prevention should be improved, particularly through pilot policies for gig workers working through digital platforms in industries such as transportation, food delivery, on-demand delivery, and local courier services, and businesses operating such platforms should be mandated to implement such policies pursuant to law. Implement a government-driven approach that utilizes information technology and private sector collaboration to develop occupational injury prevention operating procedures and service standards. Digital platforms should be encouraged to improve the level of protection afforded to gig workers working through their platforms by purchasing appropriate personal accident and employer liability commercial insurance.

(j) Businesses should be guided and monitored to develop and regularly revise platform policies and algorithms directly impacting worker rights, including, without limitation, those controlling onboarding and offboarding, task assignment, piece rates, commission rates, compensation structures and payments, work hours, and incentives and penalties. Businesses should duly consider labor union or worker representative opinions and are required to publish and notify workers of such policies and algorithms. Businesses are required to agree to any negotiations requested by labor unions or worker representatives and furnish the necessary information and materials. Businesses should be guided to implement and improve worker grievance systems to ensure that worker complaints are addressed promptly and impartially.

Improving Efficiency and Services for Worker Rights Protections

(k) Develop innovative strategies to provide tailored job recommendations, career counseling, entrepreneurship training, and other services for gig workers. Industry wages and labor cost breakdowns should be promptly disclosed, and businesses and workers should be provided with consulting services for worker protections, taxation, and market regulation to facilitate job-seeking and recruitment efforts.

(l) Simplify the administration of social security to develop services specific to the gig economy, including services to facilitate social security contribution payments, social security record lookups, and benefit distribution and calculation. Support for social security benefits transfer and rollover, and overall service quality should be improved to ensure that all participants receive their entitled benefits.

(m) Implement job training models specific to gig workers to ensure equal access to training opportunities. Processes for the application and distribution at work sites of gig worker job training subsidies should be simplified, and additional financial support should be provided directly to businesses to assist in covering the costs of job training provided to eligible workers pursuant to law. Improve the job skill certification system and support eligible businesses carrying out legally mandated job skill assessments and certifications. Improve professional qualification assessment policies and simplify procedures for gig worker professional qualification assessment and recognition.

(n) Construct service centers and rest areas for gig workers in residential areas and commercial districts to address parking, charging, drinking water, and restroom availability issues and improve working and living conditions for gig workers.

(o) Ensure equal access to compulsory education for children of eligible gig workers within their residential areas. Provide workers with free or low-cost access to public cultural and recreational facilities and expand the availability of such products and services.

Collaborating to Improve Worker Rights Protections

(p) Protecting gig worker rights is important for maintaining a stable workforce and improving both social welfare and social governance. Local governments shall improve guidance, enforce obligations, and effectively implement worker protections. The Ministry of Human Resources and Social Security, the National Development and Reform Commission, the Ministry of Transportation, the Ministry of Emergency Management, the National Administration for Market Regulation, the National Healthcare Security Administration, the Supreme Court, the National Federation of Trade Unions, and other appropriate government agencies and organizations shall fulfill their obligations, enhance interagency cooperation, and incorporate worker protection into digital economy governance. This includes, without limitation, creating a reporting system for digital platform operators to disclose employment practices, improving joint incentive and disciplinary systems related to the protection of worker rights, and refining applicable policies and judicial interpretations.

(q) Labor unions shall improve membership coverage to include gig workers and broaden advocacy for worker rights, as well as the extent of services they provide. They shall improve ideological and political guidance for workers and guide them toward rational approaches to protect their legal rights. Businesses should be monitored to ensure that they fulfill their obligations to protect worker rights. Furthermore, labor unions should actively negotiate with industry associations and industry leaders or representatives to enter into industrial collective bargaining agreements and support the development of industry labor standards.

(r) Courts and dispute mediation and arbitration agencies shall improve their guidelines for addressing labor disputes, simplify arbitration and litigation procedures, recognize employment relationships between businesses and workers based on de facto employment status, and adjudicate labor disputes involving gig workers pursuant to applicable law. Mediators, legal aid organizations, and other professional private sector organizations should improve the accessibility, quality, and efficiency of dispute resolution, legal counsel, and legal aid services for gig workers.

(s) Human resources and social security regulators shall improve oversight of worker protections and order businesses to fulfill their obligations to protect gig worker rights. Critical issues, including unlawful wage payment delays and excessive overtime, must be addressed to protect worker rights pursuant to law. Transportation, emergency management, and market regulatory agencies shall work with industry regulators to standardize business practices and improve regulatory oversight, and shall promptly conduct regulatory interviews, issue warnings, investigate violations, and impose penalties against businesses that violate worker rights.

All appropriate local government agencies must comply with these guidelines, issue specific administrative rules, increase policy awareness, actively increase public awareness of the gig economy, enhance the public image of gig workers, and create an effective environment for the protection of worker rights.

 

Ministry of Human Resources and Social Security, National Development and Reform Commission, Ministry of Transportation,

Ministry of Emergency Management, National Administration for Market Regulation, National Healthcare Security Administration

The Supreme Court and National Federation of Trade Unions

July 16, 2021

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This article was translated to American English from the following government publication:

“人力资源社会保障部办公厅关于印发《新就业形态劳动者休息和劳动报酬权益保障指引》《新就业形态劳动者劳动规则公示指引》《新就业形态劳动者权益维护服务指南》的通知”

https://www.gov.cn/zhengce/zhengceku/202402/content_6933822.htm

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