China Employment Lawyers

Employers should be very careful using WeChat to manage their employment affairs.

Consider this hypothetical. Employer amends its Rules and Regulations to require its employees forward or repurpose all Employer WeChat articles as the employee’s own “moments” on the employee’s personal WeChat account. The new Rules and Regulations also discipline employees who fail to meet the required minimum amount of  WeChat “forwards.” Employee several times fails to abide by this new rule and Employer terminates her for breaching Employer’s Rules and Regulations. Employee brings a labor arbitration claim for wrongful termination. Will Employee prevail?

The short answer is most likely yes, and in a labor arbitration case with facts similar to those above, the arbitrator sided with the employee.

Here are a few things to consider.

First, requiring an employee to conduct company business on the employee’s personal WeChat account is a non-starter. The company and its employees’ personal affairs should be kept separate. It is important to step back and think from a company culture perspective: do you really want to convey to your employees that you do not respect their privacy or their personal lives?

Second, WeChat and overtime exposure tend to go “hand-in-hand.” Assigning work to an employee via WeChat outside of normal working hours can subject the employer to overtime liabilities (even doing so within normal working hours can be tricky). Even if you are merely “assigning” work and not asking the employee to get on it right away, given the app’s real-time nature, the employee may feel compelled to do the work right after receiving the message anyway. Far too often, the employer initiates an audio/video chat on WeChat just to ask a quick work-related question and the employee feels he/she has to take it. Unless you make clear to your employees (in writing) that they are not expected to read or check or reply to work-related WeChat messages outside normal working hours, you are setting yourself up for overtime claims down the road. As most people spend even less time thinking things through with WeChat messages than with email, you really should think twice before contacting one of your employees on WeChat. If your assignment is not worth your company paying for employee overtime, you should wait until the next business day to send your request. Again, think from your’s company culture/image perspective. Most employers want their employees to have a work-life balance, and “bugging” them over WeChat after work defeats that and is not exactly the sort of company culture for which most companies want to be known.

Note that generally speaking you need to obtain the employee’s consent before requiring them to extend working hours. This applies to asking an employee to work overtime via WeChat as well.

Also, to revise the employee’s work duties, the best (safest) way to do this is to have the employee sign an amendment to the employment contract. Unilaterally amending the employer’s rules and regulations may be deemed by the Chinese authorities as an attempt to get around amending the employment contract. Though employer rules and regulations generally apply to all employees, this does not mean an employer can simply amend this document as it wishes when it wants to impose a new duty on all employees. Amending each employee’s contract may be required under certain circumstances, and if that is the case, merely amending the employer’s rules and regulations (even though the employer complies with the applicable law regarding such amendment) is not going to work.

Our China employment lawyers once had a case where the employer attempted to replace an employee-wide program with a less favorable program simply by publishing a new set of employer’s rules and regulations minus the employee-wide program. Even though the company gave the employees a chance to ask questions after they published the new employee rules, it had already angered every employee, and many key employees threatened to leave if the company did not revert to the old employee program.  The company had to spend a lot of time and money on attorney’s fees to “calm down” the employees, and it ended up having to re-negotiate with each employee and amend each employee’s contract anyway.

Bottom line: Despite all its brilliant features (mobile payment etc.), WeChat is not a good employer or labor management tool in China.