With widespread use of WeChat in China (it is China’s leading multi-purpose messaging, social media and mobile payment app by far), both employers and employees need to be careful with what they do and say on there. Put simply, what you say or write on WeChat may be used against you in an employment dispute. There have been written Chinese employment decisions where an employer used evidence from WeChat (such as screenshots of an employee’s WeChat posts) to prove employee misconduct and to thereby justifying discipline/termination decisions (see here). And our China employment lawyers have been involved in many matters where WeChat communications were used to influence a settlement.
Let’s consider a fairly recent case in Ningbo City. One day after 10 pm, a supervisor sent a WeChat message to an employee working as a store manager requiring the store manager provide the current month’s store sales data within ten minutes. The employee was pregnant at the time and had gone to bed early that night and did not respond within the deadline. After the 10-minute ultimatum had passed, the supervisor notified the employee on WeChat that she was fired for failing to respond in time. The employee sought help from the local workers’ union which offered her legal aid and in short, the final outcome is that the employer and the employee reached a settlement where the employee received a generous amount of severance for the termination.
Also, note that the employee being terminated in the case above was pregnant. It is worth emphasizing (again) that female employees with a special status such as pregnancy are given heightened protection in China and terminations of such employees are almost always tricky and complicated. The employer should have thought long and hard before terminating the employee even if the employer had been justified in making the unilateral termination decision in the first place. Moreover, note that there are restrictions on arranging overtime for pregnant employees.
The moral of the story does not stop there though. If you are an employer in China, you should be careful with how you use WeChat with your employees. Just to give a few examples, many of which our China employment lawyers have seen, some frequently.
- Do not send an employee work outside normal work hours via WeChat that requires an immediate response or turnaround, because that sets you up for overtime claims/liabilities.
- Do not amend the terms of an employment contract via WeChat. You should either sign an amendment to the employment contract in hard copy or sign a new contract in hard copy. In fact, you should not negotiate with the employee regarding the amendment on WeChat in the first place. It is just too tricky to know what of what you do on WeChat will actually count for the contract and this is not usually going to be the sort of “paper trial” you are going to want showing up in a court in any event.
- If you constantly check in with a part-time employee via WeChat regarding work, you may be deemed to have converted that part-time employee to a full-time employee by making the employee work beyond the statutory maximum hours allowed for part-time employees. This conversion may expose you to all sorts of problems and risks.
- Do not issue employee discipline via WeChat. For example, if you issue a notice of suspension of employment, do it in hard copy and deliver the notice in person to the employee and have witnesses who can attest to the delivery. Sending something via WeChat will allow an employee to claim never to have received it or to claim not to have known it to be real or even not to have taken it seriously.
- If you need to express your concerns about an employee’s performance formal documentation of the employee’s performance issues and a corresponding improvement plan should be prepared. Just sending out a WeChat is likely not going to count before a court or other employment tribunal.
As a general matter, WeChat does not work well for record retention. Also, since WeChat is an instant chatting tool, people far too often fail to take the necessary time to think carefully before they hit send. As a China employer, you will almost always be held to a high standard and this high standard will apply even to something like WeChat. You should assume that whatever a company supervisor or higher up sends out via WeChat can and will be used against your company in a dispute. Sometimes what you do on WeChat will decide the case against you. Sometimes it will tip the evidence against you. Other times, it will “merely” make you look bad and cause the judge to want to rule against you, which in turn can lead the judge to rule against you. And if you think your ability to “retract” a WeChat message within a couple of minutes is going to save you, think again. First off, you may not always able to do so quickly enough. Second (and trust me on this one), there is a really good chance that whomever you sent the offending WeChat message will already have seen it and taken a screenshot and saved it. This is how many celebrity scandals start; someone posts something on WeChat and then deletes it within a minute, but it is already too late. Keep in mind also that WeChat messages are not secure and can easily be accessed by Chinese government authorities (and others).
Most importantly, nearly all WeChat communications/correspondence have not been reviewed by the real powers at your company nor approved by your China employment lawyer before they go out and potentially expose your company to regulatory/liability/lawsuit risks. Your company’s general rule should be to limit labor management via WeChat as much as possible.
What have you seen out there?