On 12 December 2023, the Supreme People’s Court (SPC) released a draft Interpretation on Issues Concerning the Application of Law in Employment Disputes (II) (the Draft), seeking public consultation. Although the Draft is not final, it reflects the SPC’s views on relevant employment issues and the judicial trends in China. In this update, we highlight the key points.

The nature of share incentive disputes

The classification of share incentive disputes has been a contentious issue among courts across various regions. Some consider these disputes as employment-related, while others categorise them as contractual disputes.

The Draft appears to lean towards recognising share incentives as a form of remuneration, thus categorising disputes related to the grant of share incentives as employment disputes. In particular, the Draft stipulates that when an employer offers share incentives as a form of remuneration to an employee, any dispute that arises from the employee’s request for the employer to make payment under the share incentive or to compensate the employee for any loss related to the share incentive can be classified as an employment dispute. However, a dispute that arises from the exercise of shareholding rights will not be considered as an employment dispute, though the scope of such disputes is not clearly defined.

Limitation period for double salary claims due to failure to execute employment contract

If an employer neglects to establish a written employment contract with an employee for more than a month, the employee has the right to file a claim against the employer for double their salary for each month of employment. However, this claim is capped at a year from the start of employment.

Under PRC law, the limitation period to bring an employment claim depends on whether the claim constitutes a claim involving underpaid remuneration. Where the claim does not involve underpaid remuneration, a ‘general’ one-year limitation period applies which starts from the date a party becomes aware or should have become aware of their rights being infringed.

Where the claim involves underpaid remuneration, a ‘special’ statute of limitations applies such that the claim is not bound by the one-year limitation period; however, if the employment relationship ends, a one-year limitation period applies from the cessation of the employment.

The Draft now clearly provides that a claim for double salary due to the employer’s failure to establish a written employment contract does not constitute a claim for underpaid remuneration and therefore the general limitation period applies.

Apart from clarifying the nature of the claim and whether the general one-year limitation period applies, the Draft also provides clarity on when the one-year limitation period begins given that there are differing judicial views on the matter.

Courts in several regions tend to view the entirety of the payment owed to an employee as a single claim when calculating the limitation period, and consider the limitation period to run from the day the employee is no longer entitled to the double salary (i.e., the day after the conclusion of a written employment contract, or the day after one full year’s service). For example, if no written employment contract is concluded for more than one year, the limitation period begins to run the day after the first year of service is completed and an employee may bring a claim for a maximum of 11 months of double salary (from the second month up to one year’s service).

However, another view is that the limitation period begins the day after one full month from when the employer was supposed to conclude a written employment contract.

The Draft provides that the latter view prevails. This means it will no longer be possible to treat the entirety of the claim as a single claim. For any portion of the claim that has already exceeded the one-year general limitation period, the employee’s claim will be time barred.

Limitation period for unpaid overtime pay and compensation for untaken annual leave

While courts across various regions consider a claim for unpaid overtime pay as a claim for employment remuneration subject to the special limitation period, compensation for untaken annual leave is not usually viewed in the same way. Most courts tend to apply the general limitation period for compensation for untaken annual leave. As a result, many employers only need to compensate employees for untaken annual leave within the past two years, or three years in cases where the untaken annual leave can be carried over to the next year.

The Draft provides that if an employee asserts that the special limitation period for untaken annual leave and overtime should be applied, the court should support this claim. This indicates that both compensation for untaken annual leave and overtime pay will be considered as employment remuneration and, therefore, subject to the special limitation period. Since the compensation for each year’s untaken annual leave is no longer subject to a one-year limitation period, employers will therefore likely need to compensate employees for all untaken statutory annual leave accrued during their employment period.

Employment protection for employees who have reached retirement age

The prevailing view is that an employer can end the employment contract with an employee once the employee reaches the statutory retirement age, even if they have not started receiving pension insurance benefits, so long as the employer has complied with their obligations to make social insurance contributions. If the employee wishes to continue to work for the employer after they reach the statutory retirement age, parties may enter into a service agreement which is not governed by employment law, and can be freely negotiated.

The Draft now stipulates that if an employee has reached the statutory retirement age but has not yet started receiving basic pension insurance benefits and continues to work for an employer, the employee may continue to bring a claim over employment remuneration, working hours, rest and holiday, employment protection, occupational hazard prevention, and work injury insurance benefits in accordance with employment laws and regulations, and the court should support the employee’s claim.

In other words, the Draft strengthens the protection of employee rights in that employees who have reached retirement age but have not yet received pension insurance will continue to receive some key protections under employment law. If the Draft is implemented, employers will need to assess their approach as regards employees who have reached their retirement age.

Lawful unilateral adjustments to job positions

The Draft outlines a list of criteria for assessing whether an employer’s unilateral adjustments to job positions and work locations are lawful. In particular, any adjustment to a job position or work location is considered unlawful where it:

  • violates the employment contract or the employer’s policies;
  • is not driven by the employer’s objective needs for business and operation;
  • results in unfavourable changes to the employee’s salary or other employment conditions without providing necessary assistance or compensation to the employee;
  • results in a change to the job position which the employee objectively will be unable to fulfil;
  • involves discriminatory or insulting circumstances; or
  • violates laws or regulations.

The Draft further provides that if an employer unlawfully adjusts the job position or work location, the employee can request to terminate the employment contract and seek economic compensation, on the grounds of the employer’s failure to provide the necessary employment conditions.

Key Takeaways

The judicial interpretations issued by the SPC carry legal effect and can directly serve as the basis for court judgments, ensuring nationwide uniformity in court decisions on similar cases. Although the current Draft may undergo further revisions before it becomes effective, it provides employers with insight into the direction of judicial trends. Employers should continue to watch this space for amendments and updates to the Draft.


中国:最高法发布劳动争议最新司法解释草案

2023年12月12日,最高人民法院(“最高法”)发布了《关于审理劳动争议案件适用法律问题的解释(二)》的草案(“草案”),向社会公开征求意见。当前的草案虽然不是最终生效版本,但在一定程度上反映了最高法对相关雇佣问题的观点以及中国的司法趋势。我们在本次更新中整理了一些值得关注的事项。

股权激励纠纷的性质

各地法院有关股权激励争议的性质一直以来都存在着争议,有些地区认为其属于劳动争议,有些地区则认为其属于合同纠纷。

草案似乎倾向于认可股权激励的劳动报酬属性,将请求给付股权激励标的、赔偿股权激励损失的纠纷认定为劳动争议。草案规定,用人单位基于劳动关系以股权激励方式为劳动者发放劳动报酬,劳动者请求用人单位给付股权激励标的或者赔偿股权激励损失发生的纠纷属于劳动争议。有一个例外是,“因行使股权发生的纠纷” 不属于劳动争议,不过草案并没有明确界定此类行使股权纠纷的具体范围。

未签订劳动合同的二倍工资的仲裁时效

若用人单位自用工之日起超过一个月未与劳动者订立书面劳动合同,劳动者有权要求用人单位每月支付二倍的工资,但该二倍工资的期限不得超过自用工之日起一年。

根据中国法,提起劳动相关请求的时效取决于该请求是否涉及拖欠劳动报酬。当一项劳动争议涉及拖欠劳动报酬时,应适用期限为一年的“普通”时效,从当事人知道或者应当知道其权利被侵害之日起计算。

当一项劳动争议涉及拖欠报酬时,应适用“特殊”时效,不受一年普通时效期间限制;但劳动关系终止的,时效期间为自劳动关系终止之日起一年。

根据当前的这份草案,未签订书面劳动合同的二倍工资不属于劳动报酬,因此相关纠纷应当适用普通仲裁时效。

除了明确了二倍工资的性质以及一年普通时效的适用,草案还明确了该一年仲裁时效的起算时间,这可能可以统一当前不同地区的司法观点。

目前在实践中,有些地区倾向于将员工应得的所有二倍工资作为一个整体来计算时效,因此时效从员工不再有权获得二倍工资之日起计算(即,签订书面劳动合同次日,或用工满一年的次日)。例如,如用人单位超过一年都没有与员工签订书面劳动合同,二倍工资的时效自用工之日起满一年的次日开始计算,员工最高有权获得11个月(从实际用工之日起第二个月至一年)的二倍工资。

另一种观点是,仲裁时效应当自用人单位应当订立劳动合同之日起满一个月的次日起计算。

草案支持了第二种观点。这意味着所有的二倍工资将无法作为一个整体来主张;对于已经超过了一年的那部分二倍工资,员工的主张将受到时效限制。

加班费与未休年休假补偿的仲裁时效

加班费被视作劳动报酬因此适用特殊仲裁时效是各地实践中的通行观点,而未休年假补偿并非如此。多数法院认为未休年假补偿应适用普通仲裁时效。因此很多雇主只需对员工两年内或(在未休年假流转至下一年的情况下)三年内的未休年假进行补偿。

草案规定,劳动者主张用人单位支付未休年休假工资报酬、加班费的仲裁时效适用特殊仲裁时效的,人民法院应予支持。这意味着未休年休假补偿和加班费都将被视作劳动报酬适用特殊仲裁时效。由于每年的未休年休补偿不再受一年的时效限制,雇主可能因此需要对员工在职期间的所有未休法定年假进行补偿。

达到退休年龄员工的权益保护

当前实践的主流观点认为,只要员工达到了法定退休年龄,即使未享受养老保险待遇,用人单位在不存在社保缴纳过错的前提下可以终止双方的劳动合同。在此后,如果员工继续在用人单位处工作,双方可以签订不受劳动法管辖的服务协议,并自由约定协议条款。

草案现在规定,达到法定退休年龄但是尚未享受基本养老保险待遇的劳动者为用人单位提供劳动,劳动者请求参照适用劳动法律法规处理劳动报酬、工作时间、休息休假、劳动保护、职业危害防护以及工伤保险待遇等争议的,人民法院应予支持。

换言之,草案加强了对达到退休年龄但尚未享受养老保险的员工的权益保护,使得他们能够继续受到劳动法下的一些关键保护。若此草拟规定生效实施,许多雇主需要重新评估其与退休返聘员工的协议条款。

岗位调整的审查

草案列明了用人单位单方调整工作岗位、工作地点的审查标准。具体来说,符合以下情形的工作岗位、工作地点调整被认定为违法:

(一) 不符合劳动合同的约定或者用人单位规章制度规定的;

(二) 非出于用人单位生产经营客观需要的;

(三) 劳动者的工资及其他劳动条件存在不利变更且未提供必要协助或者补偿措施的;

(四) 劳动者客观上不能胜任调整后的工作岗位的;

(五) 存在歧视性、侮辱性等情形的;

(六) 违反法律、行政法规等规定的。

此外,草案还规定,用人单位违法调整工作岗位、工作地点,员工可以以用人单位不提供劳动条件为由,要求解除劳动合同并支付经济补偿。

要点总结

最高法发布的司法解释具有法律效力,可以直接作为法院的裁判依据,因此将统一全国范围内法院对类似案件的判决。当前发布的草案虽然在生效前还将继续修改,但给了雇主一些司法风向上的提示。各雇主应当持续关注该司法解释的修订与发布动态。