As we have been saying pretty much since we started this blog, tough times in China bring on tough enforcement measures against foreign companies doing business in China. What with the tariffs and all, these are tough times in China and we are seeing increased enforcement of China’s laws against foreigners in countless areas, including employment law. Foreign companies — especially American companies — are realizing this and in response they are seeking to clean up their employment practices with employer audits.
Our employer audits typically begin with our reviewing all HR-related documents but they often graduate to our going to the employer’s facility to interview key personnel and other employees on site. No matter what we do though, the goal is always the same: figure out what the employer needs to do to minimize employee legal issues and to thereby reduce the likelihood of lawsuits and government fines. We do this by crafting a course of action to remedy any issues/problems/concerns we find during our review. Such a course of action nearly always involves our revising existing employment documents and drafting new ones.
I attended a really good employment law seminar last week where a speaker mentioned that one of the best things about being an employment lawyer is being able to answer her client’s employment law questions. She then went over a number of frequently asked questions and provided quick answers. I too most enjoy being able to answer employment law questions and so in that spirit I below put forth some of the most commonly asked China employment law questions we get related to our China employer audits and provide short answers to each of them.
Question 1: Why do we need to do this now when none of our employees has ever filed a claim against us?
You need to know your potential regulatory/lawsuit risks/exposure and the only way to know those is to have someone assess the adequacy of your HR program. If problems are revealed during this process that need to be fixed immediately (which happens a lot), you can get on it quickly. But if you don’t have an employer audit, the chances are high that you will not become aware of a problem until it is too late (which also happens a lot). I should also note that many of our clients who have employees make claims against them in the last six months were getting claims for the first time.
Question 2: Can we limit the document review to just employment contracts?
You can if you want to, but you should not want to. If you just want us to review and revise your employment contracts, we will do so but that is not a China employer audit and just doing that is not going to be enough to truly minimize your employer risks. If your goal is to reduce risk we strongly recommend we comprehensively review all your employment-related documents, not just your employment contracts. If your employment documents consist of just employment contracts, I can tell you right now that you need more. See e.g., China Employer Rules and Regulations: A Must Have No Matter Your Size.
Question 3: We currently have an employee dispute. Can we have an audit conducted in parallel with that?
Absolutely, and all the more reason to have one. Your having employee problems now does not necessarily mean you are not complying with China employment laws, but it probably does mean there are important things in your HR program that need fixing. For example, it is very common for employees to bring claims seeking something they were promised in the employer rules and regulations (often referred to as the employee handbook) but not provided. In this sort of situation we start out asking if the employer knew it had promised the benefit on which it is being sued and if it ever wanted to promise the benefit on which it is being sued and if it wants to keep promising the benefit on which it is being sued. Much of the time, the employer did not even know because its rules and regulations are in Chinese only and were drafted by their first Chinese employee many years ago. Virtually always, the employer wants to remove or at least modify the promise. So yes, the short answer is that looking at all of your employee documents and considering how to revise them in light of an existing employee claim is always a good idea.
Question 4: What exactly do you do in an employer audit and what is the turnaround time?
The first thing we do in an employer audit is to request all of the employer’s written employment document used for their China office(s). At the same time, we ask the employer to advise us of any pending or imminent employee problems of which they are aware. Our lawyers then review all of the documents we receive from the employer and then we usually ask for more documents. If you have been following, you should at this point be asking why we need to ask for more documents when we previously asked for every document. The answer is that most of the time the employment documents we receive will mention other documents we did not receive. Much of the time the other documents do not even exist either because the employer did not know that they were referred to in their existing employment documents or because they forgot to get around to having them drafted. Needless to say, this is something that calls for remedying.
We then draft a memorandum providing the client with a general assessment of their HR situation, along with document-by-document comments and proposals on next steps. The more quickly we are provided with the documents we request, the more quickly we can complete our review, but generally speaking, it usually takes 2-4 weeks.
Question 5: We are just a small company. Do we really need an employer audit?
First off, the size of your WFOE does not matter in terms of whether you are complying with China’s employment laws or not. Second, though the odds of your facing an employee claim when you have ten employees will obviously be less than if you have 10,000 employees, the negative impact on your business will be greater the smaller you are. The need to avoid time consuming and costly labor arbitration and/or litigation is in many respects greater the smaller you are.
Think of an employer audit as a sort of wellness check for your HR program. Any company with employees can benefit from that.