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  China
 
Appleton, Simon & Knight, John & Song, Lina & Xia, Qingjie, "Contrasting Paradigms: Segmentation & Competitiveness in the Formation of the Chinese Labour Market", Journal of Chinese Economic and Business Studies v. 2 no3 (September 2004) p. 185-285

Abstract:
This article argues that the current labor market in urban China is a paradigm of a “three tier” labor market (as opposed to a competitive labor market) by comparing wage functions across categories (“tiers”) of labor. The first tier consists of “non-retrenched urban workers,” workers that are employed and not laid off since 1992. The second tier consists of “re-employed urban workers,” workers who were laid off, but were employed when the survey was conducted (year 2000). The third tier consists of “rural-urban migrants,” workers who migrated from rural areas. The first section gives a historical background on the labor market reforms that China had implemented in the 1990s in an effort to create a more competitive labor market. The two most dramatic changes were the end of the lifetime employment system and the increased government permission of rural-urban migration. The second section describes the data (number of households, description of workers) and methods used (wage functions, panel data) to compare the three tiers of the labor market. It also explains econometric issues that may arise, such as sample selectivity bias. The third section analyzes the test results of the wage functions. The authors state that the findings suggest workers in urban China are rewarded differently according to what category they fit in, with the first tier having the highest wage premiums and the migrants having the lowest in absolute terms. The fourth section investigates whether certain characteristics (such as education, age, occupation, etc.) could explain these wage differences by standardizing them in the wage functions. The authors find that the results imply that non-retrenched urban workers (first tier) have a distinct wage advantage over the other two tiers. Though the article concludes that Chinese urban workers are currently in a segmented labor market, it expresses hope of emerging signs of competitiveness.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Immigration
Newsletter: Vol 4, Issue 2
 
Cooney, Sean, "Making Chinese Labor Law Work: the Prospects for Regulatory Innovation in the People's Republic of China", Fordham International Law Journal v. 30 (2007) p. 1050-1110

Abstract:
This Article examines the capacity of Chinese labor laws and various state and private institutions to ensure minimum labor standards, particularly in the area of wage and hour regulation. According to official Chinese statistics, some US $12 billion in workers' wages goes unpaid each year. The article finds that the Chinese regulatory framework is impeded by a failure to clarify key norms, a bureaucratic "command and control" approach to inspection and dispute resolution, and a narrow and ineffective range of tools for inducing compliance. However, the article also cites some encouraging evidence of regulatory experimentation, such as a draft Labor Contract Law and regional wage regulations in Guangdong Province, that may lead to a much more effective legal response. Relying on recent scholarly literature promoting "responsive," "reflexive," or "decentered" forms of regulation as superior alternatives to traditional "command and control" style rule-making, the article makes a number of recommendation, such as (1) clarification of key norms; (2) more effective sanctions, particularly for repeat offenders; (3) improving dispute resolution by, inter alia, expanding the remedies available to include interim injunctive relief; (4) trade union reform to permit limited right to strike over health and safety hazards.

Subjects: Case Studies: Country-Specific, China
Newsletter: Vol 6, Issue 10
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Cooney, Sean & Biddulph, Sarah & Kungang, Li & Zhu,Ying, "China’s New Labour Contract Law: Responding to the Growing Complexity of Labour Relations in the PRC", University of New South Wales Law Journal v. 30 no3 (2007) p. 786-801

Abstract:
This article provides a discussion and evaluation of China’s New Labour Contract Law. First, the article explains how the previous Labour Law of 1994 was inadequate in the increasingly complex and privatized nature of the Chinese labor market and how the new law was intended to provide a comprehensive framework for the formation, performance, modification and termination of labor contracts. Secondly, the article discusses the lobbying efforts of labor and business to shape the outcome of the new law. The article then evaluates the effectiveness of the law, including some of its more controversial provisions. For example, by limiting employers’ ability to change work rules governed by employment contracts, the law may have the unintended effect that employers will limit the scope of such agreements to escape regulation. Similarly, the compromise between labor and business lobbying groups over the responsibility of employers towards terminated workers has resulted in a two-tier system in which “regular” employees enjoy significant protections while “casual” employees have few protections. One of the most important aspects of the law, according to the author, is that labor contract agencies must now also provide contracts to their employees – of a minimum two years. The new law’s treatment of post-employment non-compete clauses is also controversial. Though the law restricts this pervasive practice to some extent, the law’s provisions on this subject rely largely on voluntary compliance by employers. This article concludes that while this new law is often an uncomfortable compromise between the demands of competing interests, overall it is an improvement in efforts to clarify the employment relationship and establish minimum labor protections for China’s large privat-sector workforce.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Employment Law, Health and Safety, Working Hours
Newsletter: Vol 7, Issue 3
 
Daubler, Wolfgang & Wang, Qian, "The New Chinese Employment Law", Comparative Labor Law & Policy Journal v. 30 no2 (Winter 2009) p. 395-408

Abstract:
The authors review provisions of China's Employment Contract Act and anticipate its consequences on employment structure, employee protections, labor unrest, and the role of unions in China. They note that the Act limits employer use of short-term contracts and temporary agencies, but not part-time employment. The law also expands dismissal protections and forbids employers from requiring deposits or withholding passports. Employers must hold collective “negotiations on equal footing” with employees or their representatives, including unions, to establish the terms of work. Further, the law permits collective agreements that set pay scales for an industrial sector or geographic area. The Act includes penalties for employer violations. While predicting that the law will reduce unrest, the authors also anticipate that parties are likely to use the law informally to reach settlements. They note the relative unpopularity of legal action in China, and unions’ hesitance to push confrontation with employers and Party officials. The authors also suggest that the law’s indeterminacy in important areas, such as what happens if negotiations break down or the grounds for mass lay-offs, encourages compromise.

Subjects: Case Studies: Country-Specific, China, Employment Law
Newsletter: Vol 11, Issue 2
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Diamond, Stephen F. , "Bridging the Divide: An Alternative Approach to International Labor Rights After the Battle of Seattle", Pepperdine Law Review v. 29 (2001) p. 115-146

Abstract:
In Bridging the Divide: An Alternative Approach to International Labor Rights After the Battle of Seattle, Professor Diamond presents a description and analysis of the conflicts at the WTO meetings in Seattle in 2000 and the subsequent debates over normalizing trade relations with China. The piece details the strategies by and conflicts between the major actors -- the AFL-CIO, the Clinton administration, and several leading labor rights NGOs. The piece argues that international labor rights activists should focus on the issue of economic development, and put issues such as living wage guarantees and reasonable hours and working conditions on the table at the WTO. He says that such an approach can both improve the economic well being of workers in the developing countries and sustain the economic welfare of those in the developed world.

Subjects: Case Studies: Country-Specific, Child Labor, China, Trade Conditionality, World Trade Organization (WTO)
Newsletter: Vol 4, Issue 2
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Diamond, Stephen F. , "The Race to the Bottom Returns: China's Challenge to the International Labor Movement", University of California Davis Journal of International Law and Policy v. 10 no39 (2003) p. 39-74

Abstract:
In The Race to the Bottom Returns, Professor Diamond explores the impact of China's integration into the world economy on labor relations in China and in the developed world. He begins by engaging with a long-simmering debate about whether there is a "race to the bottom" in labor standards--a flight of capital to the lowest labor cost countries. He rejects the simplistic accounts of the "race to the bottom" and says the real issue is "the ability of sophisticated multinational corporate capital to combine high-productivity technology with labor that is paid substantially less than that found in the developed world." Professor Diamond goes on to explore the ramifications of this new form of capital-labor combination. He shows how this new form of capitalism is a vast departure from the industrial relations era in which productivity and wages were linked by a variety of democratic political and economic institutions. The new era, he argues, rests upon authoritarian regimes such as the one that exists in China today. The article describes the authoritarian nature of the Chinese production system and its state-sponsored trade unions. He demonstrates that the economic success of China in recent decades depended upon state-sponsored repression of genuine trade unionism. He ends by criticizing those in the global labor movement who seek constructive engagement with existing Chinese institutions, arguing that it is more important to bring about democratic reform.

Subjects: Case Studies: Country-Specific, China, Labor Rights in General (Misc.)
Newsletter: Vol 3, Issue 12
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Diamond, Stephen F. , "The PetroChina Syndrome: Regulating Capital Martkets in the Anti-Globalization Era", Iowa Journal of Corporate Law v. 29 no41 (2003) p. 39-102

Abstract:
This piece begins by recounting the attempt by investment banks and the Chinese government to list an initial public offering of the giant Chinese oil company, PetroChina on the U.S. stock exchange, and the campaign by labor union activists and NGOs to block the listing on the basis of the company's use of forced labor in its operations in the Sudan and China's human rights violations. The campaign culminated in the controversial "Unger letter" that requires foreign companies seeking to list on U.S. exchanges to disclosure to potential investors their activities in countries that are involved in human rights violations. Professor Diamond describes the dramatic campaign that led to the "bombshell" letter and then asks the important question: does the injection of human and labor rights considerations into capital markets impedes the functioning of those markets? In answering that question, the author presents the objections that were raised to the Unger letter and demonstrates how the different types of objections fall into the different post-Cold War political camps of neo-liberalism, neo-mercantilism, national interest grouping, and new internationalism. The author then looks at the issue of injecting human rights concerns into capital markets from a different perspective. He says that we are witnessing the demise of the Keynsian industrial relations system in which wage increases and productivity increases go hand-in-hand; a system that has brought rising standards of living to the industrial working class and labor peace and stability to employers. Diamond claims that this industrial relations system and the macro-economic structures that supported it collapsed in the 1970s, so that subsequent reforms in currency regulations and capital markets permitted new levels of capital mobility that have undermined labor unions and working class living standards in the developed world. The demise of the industrial relations model also created a crisis in legitimacy. Without the wage-productivity bargain and a strong labor movement, many citizens in both the advanced and developing world no longer see the international global economic system as one that embodies what Clark Kerr calls "a sense of fair play." The growing sense of unfairness and the lack of consensus have fueled the anti-globalization movement all around the world.

Subjects: Case Studies: Company-Specific, Case Studies: Country-Specific, China, Forced Labor
Newsletter: Vol 4, Issue 1
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Goolsby, John H., "Is the Garment Industry Trying to Pull the Wool Over Your Eyes? The Need for Open Communication to Promote Labor Rights in China", Law & Inequality: Journal of Theory and Practice v. 19 no2 (Summer 2001) p. 193-227

Abstract:
This Note addresses the interplay between labor conditions in China, principles of national sovereignty, free-market labor theory, and global human rights. Section II offers a description of five possible approaches for addressing labor violations in China – relying on China's own municipal laws; advancing labor rights through Permanent Normal Trade Relations (PNTR) [formerly Most Favored Nation status]; applying business codes of conduct; implementing intergovernmental organizations' mechanisms for promoting compliance with treaties; and promoting greater awareness among Chinese workers of their own legal rights through communications media such as the Internet. Section III assesses the effectiveness of the various strategies by first looking at their limitations, and then discussing how those limitations might be overcome. The author argues that the unifying theme behind all the strategies for improving workers' rights in China must be a drive for more open communication; specifically, Chinese laborers must have greater access to information about their rights under international standards and the laws of their own country, they must be able to voice grievances effectively, and outsiders must have access to information concerning working conditions in Chinese factories. The Article concludes that a reduction in constraints on communication is necessary to advance each of these goals, and that the Internet holds unique promise for doing so. Thus for China to be open for business without trammeling workers' rights, it must also become open to the free flow of ideas.

Subjects: Case Studies: Country-Specific, China, Labor Rights in General (Misc.)
Newsletter: Vol 1, Issue 1
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Halegua, Aaron, "Getting Paid: Processing the Labor Disputes of China's Migrant Workers", Berkeley Journal of International Law v. 26 (2008) p. 254-336

Abstract:
There are more than 150 million inter-China migrant laborers. This population makes up a subclass of socially disenfranchised workers who cannot successfully manipulate the formal legal systems to redress complaints against their employers. The inaccessibility of redress is especially urgent because many unscrupulous employers routinely fail to pay their migrant workers: some reports estimate that as high as 70% of the inter-China migrant workforce has experienced this problem. This article explains the structure of the formal legal processes available to these workers, and explores why that system is not an effective means of resolving these wage claims. Informal mediation, the article argues, is a much more viable solution. The article goes on to explore and identify the key ingredients to the most effective informal mediation process for resolution of pay claims. These key ingredients are an informal structure easily accessible by the workers, run by informal mediators who have the backing of the state.

Subjects: Case Studies: Country-Specific, China, Employment Law, Labor Mobility, Undocumented Workers
Newsletter: Vol 8, Issue 1
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Harper, Paul, "New Governance and the Role of Public and Private Monitoring of Labor Conditions: Sweatshops and China Social Compliance for Textile and Apparel Industry/CSC9000T", Rutgers Law Record v. 38 no1 (2011) p. 49-73

Abstract:
In this article, the author analyzes the monitoring and enforcement of labor standards in China, as well as the actions of government and outside actors to strengthen the implementation of those standards. Part I analyzes implementation problems through the case of occupational safety and health (OSH) laws. While China has good OSH laws on paper, they are poorly applied because enforcing authorities accord economic prosperity priority over worker safety. In Part II, the author looks at external pressure being exerted upon China to improve enforcement of labor standards. A substantial share of the pressure comes from corporate trade groups and state actors, both of which are treated with suspicion by Chinese authorities who fear that monitoring efforts are fronts for foreign economic weapons. Finally, Part III looks at a new integrative linkage¯ labor standards model for the Chinese textile and apparel industry, posited and enforced by industry, rather than the state. Entitled CSC9000T, the model is promising because it is collaborative rather than adversarial in nature. The author warns that its effectiveness will be determined by how well it implements monitoring mechanisms independent of the Chinese state.

Subjects: Case Studies: Country-Specific, China, Corporate Accountability, Corporate Codes of Conduct
Newsletter: Vol 11, Issue 6
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Josephs, Hilary K., "Measuring Progress Under China’s Labor Laws: Goals, Processes, Outcomes", Comparative Labor Law & Policy Journal v. 30 no2 (2009) p. 373-394

Abstract:
It wasn’t until 1994 that China finally enacted a series of labor laws that essentially formed a labor code. In 2008, Congress’ Employment Contract Law (ECL) became effective. Some accomplishments of the ECL include the codification of the right to recover unpaid wages as a civil action for debt, a requirement that full-time employment contracts be signed or else a presumption of indefinite employment may be created, a limit on the maximum length of a probationary employment period, and increased protections for employees with temporary employment. The ECL, however, does not increase protections in other substantive areas of labor law. For example it places no real limitation on the ability of the government to shrink employment in the state sector, and does not alter the inequality between urban and rural populations. Furthermore, even though China, as a member of the International Labour Organization (ILO), is bound to provide its workers with freedom of association and the right to collective bargaining, the ECL does nothing to advance these rights. Chinese workers will be no more likely to successfully form independent unions than they were prior to the ECL’s enactment. Overall, the ECL does make some changes to increase labor protections, but it does not represent a radical substantive change from the structure created by the 1994 labor laws.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Employment Law, International Labour Organization (ILO)
Newsletter: Vol 9, Issue 2
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Killion, M. Ulric, "Post-WTO China: Quest for Human Right Safeguards in Sexual Harassment Against Working Women", Tulane Journal of International and Comparative Law v. 12 (Spring 2004) p. 201-235

Abstract:
In this article, the author discusses possible reasons why China has failed to provide safeguards against sexual harassment for women workers. The article starts with China’s first sexual harassment case, which was initiated and then lost by Ms.Tong in 2001, to illustrate the country’s "boys will be boys" mentality. The author then examines China’s human rights record before it became a member of the World Trade Organization (WTO). He shows that gender-based discrimination was rampant in China and that there were no laws that directly deal with sexual harassment. In the next section, the author suggests that WTO accession has not been a watershed event for women’s rights in China because the country has resisted linking international labor standards with its goal of becoming a successful member of the global economy and it has been reluctant to use corporate governance as a mechanism for social responsibility. The author then argues that Chinese culture, which is based on values in tradition, Confucianism, and nation-state sovereignty, results in a prioritization of socio - economic rights over civil and political rights, contributing to the denial of women’s rights. Next, the author shows that China’s Constitution and judiciary system fail to give victims of sexual harassment any cognizant legal rights. The author concludes that China must enact sexual harassment legislation if women workers are to have meaningful access to justice.

Subjects: Case Studies: Country-Specific, China, Women’s Rights, World Trade Organization (WTO)
Newsletter: Vol 3, Issue 11
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Lan, Na, "Is There New Hope in Labor Rights Protection for Chinese Migrant Workers?", Asian-Pacific Law and Policy Journal v. 10 no2 p. 482-518

Abstract:
This article examines the status of labor rights for Chinese migrant workers: rural Chinese residents who travel to China's major cities to work for wages that they send back to their families. It begins by noting that while the Chinese government has changed its official position from restricting worker migration to facilitating it, the jobs that migrants find in cities are still underpaid, overly long, unsafe, insecure, and fraught with anti-migrant discrimination. The article then points out that many Chinese workers' rights laws, including the recently enacted Labor Contract and Employment Promotion laws, are technically applicable to migrant workers. Finally, the article turns to the question of how these legal protections can be applied to migrant workers. Many migrant workers do not know about workplace protections or how to bring claims in court. As a solution, the author suggests stronger public interest legal services and enhanced trade union roles in the workplace. Finally, the author suggests that the Chinese government continue to push against anti-migrant discrimination, as well as reform social security so it is tied to individuals, rather than households because the latter tends to exclude migrant workers.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, China, Employment Law, Immigration
Newsletter: Vol 10, Issue 5
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Lu, Haina, "New Developments in China's Labor Dispute Resolution System: Better Protection for Workers' Rights?", Comparative Labor Law & Policy Journal v. 29 no3 (Spring 2008) p. 247-268

Abstract:
This article describes in detail China's second interpretation of its 1995 Labor Dispute Resolution (LDR) system, and then evaluates the implications of the second interpretation for workers' rights. The LDR, especially in the context of the increasingly market-oriented economy, initially complicated the resolution of labor disputes and still leaves all parties-workers, employers, labor law enforcement personnel and lawyers-unsatisfied. Although the LDR has been structurally weak and poorly implemented, the second interpretation does extend its jurisdiction and provide better protection for some fundamental rights for workers. The greatest concern is that rural migrant workers are mostly still not covered by the LDR system or lack the resources to act on aspects that apply to them. The author argues that presently the Chinese system needs not only technical improvements but respect for rule of law and a commitment to fundamental rights. Furthermore, since China has ratified the International Covenant on Economic, Social and Cultural Rights and 25 ILO conventions, it is obligated to protect and promote workers' rights contained in these international treaties and to remedy violations.

Subjects: Case Studies: Country-Specific, China, Contingent Work, International Labour Organization (ILO)
Newsletter: Vol 7, Issue 9
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Lu, Jiefeng , "Employment Discrimination In China: The Current Situation and Principle Challenges", Hamline Law Review v. 32 (2009) p. 133

Abstract:
This article examines the current status and recent trends of employment discrimination laws in China. The author argues social unrest following the Zhou Yichao event and Zhan Xianzhu’s lawsuit in Wuhu, Anhui Province prompted changes in China’s employment discrimination laws. In order to assess these changes, the author describes a number of different types of employment discrimination in China including gender, age, disability, height, migrant peasant status, attractiveness, and religion. The author then provides a brief analysis of employment discrimination statutes as well as the relief available under the Chinese Constitution. The author argues that despite the existence of Constitutional and statutory protections, employment discrimination remains common in China for a number of reasons. First, the the absence of a specific anti-discrimination employment law makes it impossible for employees to file lawsuits against discriminating employers. Second, there is uncertainty regarding the applicability of constitutional rights in litigation and their enforceability against private entities. Additionally, there is a lack of meaningful remedies for plaintiff. The author concludes that employment discrimination permeates workplaces in China, but Chinese society and employers have demonstrated a willingness to eliminate employment discrimination.

Subjects: Case Studies: Country-Specific, China, Employment Law
Newsletter: Vol 13, Issue 2
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Lu, Jiefeng, "Curb Your Enthusiasm: A Note on Employment Discrimination Lawsuits in China", Richmond Journal of Global Law and Business v. 10 no2 (Spring 2011) p. 211-226

Abstract:
This article is part of a forthcoming series that examines employment discrimination law in China. Despite increased attention to this issue, including a few recent high profile employment discrimination cases and several new laws prohibiting discrimination in the workplace, Lu argues that employment discrimination litigation remains politically sensitive and unpopular. The author introduces results from a survey of Chinese judges that demonstrate that employment discrimination cases comprise an extremely small percentage of the courts’ docket. She argues offers evidence of cultural and political issues that keep employment discrimination from entering the courts. This evidence includes the general unpopularity of litigation as a dispute resolution mechanism among Chinese, as well as the fact that the inconsistencies in Chinese labor law make it difficult to file an employment discrimination lawsuit. For example, despite the rampant discrimination that occurs during the hiring process, many workers are precluded from bringing a claim unless already in a contractual relationship with their employer. In conclusion, Lu argues that successfully deterring employment discrimination will require (1) remedying the inconsistent provisions in Chinese labor law and (2) encouraging citizens to utilize the court system to challenge discriminatory employment practices.

Subjects: Anti-Discrimination, Case Studies: Country-Specific, China, Employment Law, Workplace Discrimination
Newsletter: Vol 11, Issue 5
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Ogletree, Charles J. & de Silva-de Alwis, Rangita, "When Gender Differences Become a Trap: The Impact of China's Labor Law on Women, A Study in International Labor Standards and Their Effect on Working Women", Yale Journal of Law and Feminism v. 14 no69 (2002) p. 69-96

Abstract:
The article examines the protectionist provisions of the Chinese labor laws, and compares these provisions to historic gender-based employment discrimination in the United States. Since 1978, China has steadily moved away from an employment system known as the “iron rice bowl” system in which the State guaranteed lifetime employment for every worker at the salary determined by the State. Instead, in the past two decades, a legal system protecting women’s rights and interests has evolved which guarantees special, gender-specific rights to Chinese women under the Women’s Rights and Interests Law. The article argues that by accommodating the reproductive roles of the women, the current law stereotypes Chinese women and reinforces traditional roles. Moreover, the added responsibility of employers to provide special treatment to women acts as a disincentive to hire women. The article concludes by suggesting that the Chinese state should foster the greater social good in a way that does not disadvantage women.

Subjects: Case Studies: Country-Specific, China, Women’s Rights
Newsletter: Vol 2, Issue 1
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Pagnattaro, Marisa Anne, "Is Labor Really "Cheap" In China? Compliance with Labor and Employment Laws", San Diego International Law Journal v. 10 no2 (Spring 2009) p. 357-379

Abstract:
The author begins by surveying a range of new employment and labor laws in China that are having the effect of raising working conditions, increasing the transfer of knowledge from multinational companies to Chinese managers and workers, and increasing costs to employers in China. Importantly, the Labor Contract Law (LCL), which took effect in 2008, extends rights to employees across China who were hired in 2008 or later. The LCL requires written contracts with employees, a shortened maximum non-compete clause of two years, paid vacation leave, shorter probationary periods, increased restrictions on employer termination of employees, severance pay, and restrictions on mass layoffs. The author argues that the LCL has also emboldened the All-China Federation of Trade Unions to more actively represent the interests of employees, and organize workers at previously unorganized companies, such as Wal-Mart. The author proceeds to highlight the role of new employment discrimination and sexual harassment laws, which have especially benefitted female workers. The author then emphasizes regional governments’ increasing willingness to implement minimum wage laws that exceed the nation-wide minimum wage. Finally, the author discusses new workplace safety, worker privacy, and expedited employment and labor dispute arbitration that all favor workers. The author concludes that as workers’ rights improve in China, costs to employers will increase, and some foreign companies may rethink their choice to install or continue operations in China.

Subjects: Case Studies: Country-Specific, China, Comparative Labor Law
Newsletter: Vol 10, Issue 2
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Roberts, Crystal, "Far From A Harmonious Society: Employment Discrimination In China", Santa Clara Law Review v. 52 (2012) p. 1531

Abstract:
This Comment analyzes China’s anti-discrimination laws and proposes several solutions. Part I provides background information about employment discrimination practices in China and their historical basis. According to the author, women, migrant workers, and workers perceived to have disabilities are the most likely people to be victims of employment discrimination. Part II examines China’s efforts to combat employment discrimination laws and the obstacles that limit their effectiveness. In this part, the author argues the protections available to women under China’s Constitution, China’s Labor Law, the Law on the Protection and Interests of Women, the 2004 Law on Prevention and Treatment of Contagious Disease, and the Employment Promotion Law, remain limited due to lack of enforcement and the absence of independent trade unions. For instance, while the Labor Law gives workers rights against discrimination based on gender, nationality, race and religion, it does not provide a mechanism for calculating compensation for victims. Part III of this Comment details obstacles to Equal Employment Opportunities in China including a lack of access to enforcement mechanisms, the absence of clear standards of proof, China’s lax enforcement of its employment discrimination laws, and the lack of education and awareness in China concerning discrimination. In Part IV, the author proposes two measures for increasing the effectiveness of China’s employment discrimination laws: (1) enacting a law that exclusively addresses employment discrimination; and (2) allow the formation of independent trade unions.

Subjects: Case Studies: Country-Specific, China, Employment Law
Newsletter: Vol 13, Issue 2
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Rojas, Hugo, "Labor Law and Genetic Discrimination in Chile", Florida Journal of International Law v. 16 (2004) p. 561-581

Abstract:
Professor Rojas discusses (1) the effects that the Human Genome Project could have on a worker's privacy and discrimination in the workplace, and (2) how the legal system in Chile should react to these potential dangers. The author argues that unless greater legal protections are provided, employers could request employees and future applicants to undergo genetic testing, under the guise of seeking higher productivity. Rojas notes that currently, employers request medical records and testing when the employee will be subject to significant risks, such as working in mines at high altitudes. Rojas is concerned that if no further legislation is enacted in Chile, employees will be pressured to waive their genetic privacy to get a job, and that employers will then use the genetic information to discriminate against current and potential employees. The author contends that, although the Chilean Constitution and the Labor Code generally the dignity and privacy of every individual and forbid employment discrimination, the laws are not sufficient to protect workers from pressures that employers place on them to report genetic information as a condition of employment. Rojas also criticizes legislation that is currently proposed in the Chilean Congress concerning genetic research on the grounds that it does not adequately address labor issues. The author urges the legislature instead to approve explicit regulations punishing genetic discrimination and to set limits on the employer's right to genetic information.

Subjects: Case Studies: Country-Specific, China, Employee Privacy, Workplace Discrimination
Newsletter: Vol 4, Issue 9
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Rosen, Ellen Israel, "The Wal-Mart Effect: The World Trade Organization and The Race to the Bottom", Chapman Law Review v. 8 (Spring 2005) p. 261-282

Abstract:
This article discusses how the World Trade Organization's (WTO) new quota elimination policy negatively affects workers worldwide. Until January 2005, all textile and apparel trade was governed by a system of quotas in an effort to give developing countries access to major U.S. and European markets. The author argues that the new no-quota rule by the WTO will result in retailers, including Wal-Mart , moving to countries that can produce the largest volume of apparel at the lowest cost: namely, China and India . The author then looks at how Wal-Mart's business practice of using its power to pressure their suppliers to drive down prices is leading to harsh working conditions for American as well as Chinese workers, particularly women workers. The author concludes that Wal-Mart's style of competition, that involves driving down retail prices regardless of the human costs is leading to a "race to the bottom" in the garment industry.

Subjects: Case Studies: Company-Specific, China, India, Women’s Rights, World Trade Organization (WTO)
Newsletter: Vol 4, Issue 10
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Wang, Jovita T. , "Article 14 of China's New Labor Contract Law: Using Open-Term Contracts to Appropriately Balance Worker Protection and Employer Flexibility", Pacific Rim Law & Policy Journal v. 18 (April 2009) p. 433-462

Abstract:
This Comment begins by noting that China’s rapid growth and transition to a market economy has resulted in growing inequality and widespread labor abuse. In response to domestic and international pressure to address these issues, China enacted the 1994 Labor Law. As a result of continued labor abuses, the Chinese government enacted the Labor Contract Law (“LCL”) in 2008. This new law clarifies the requirements for a contractual employment relationship, stipulates penalties for violations for the law, and protects workers through encouragement of open-term contracts. Foreign companies and investors have expressed concern that Article 14 of the LCL, which limits employers’ ability to use fixed-term employment contracts and encourages open-term contracts, will be unfairly enforced against foreign employers and will increase costs by limiting the business sector’s ability to expand and contract. While these concerns are valid in light of the effect of similar labor laws in South Korea, the author explains that the Chinese law provides a clearer, more flexible set of standards than the South Korean laws. Further, enforcement of the new law has not not unfairly targeted foreign employers; it has been primarily enforced against domestic employers. The author concludes that the law and its clarifying regulations filled much-needed gaps left by the 1994 labor law and, if enforced appropriately, will aid China’s development.

Subjects: Case Studies: Country-Specific, China, Employment Law, Flexibilization, Labor Mobility
Newsletter: Vol 9, Issue 8
 
Xu, Feng, "Labor Law Developments in China: The Emergence of Temporary Staffing Agencies in China", Comparative Labor Law & Policy Journal v. 30 no2 (2009) p. 431-461

Abstract:
Xu’s article discusses the rise of the temporary staffing, or “labor dispatch,” industry in recent decades in China. Xu argues that these agencies are part and parcel of the government’s efforts to create a flexible labor market, to dismantle the “iron rice bowl” of lifelong employment in cities and to address the ensuing unemployment of urban dwellers and rural migrants, while also stimulating foreign direct investment. The labor dispatch agencies are owned and operated by a combination of local companies, transnational staffing companies, and state-owned enterprises. The 2007 Labor Contract Law regulated labor dispatch companies for the first time, thereby legitimating the industry and cementing the “triangular employment relationship” between the agencies, firms, and workers. This relationship has given firms the ability to evade the formation of contracts with workers, thereby increasing job insecurity, undermining wages and conditions, and generating more informal employment.

Subjects: Case Studies: Country-Specific, China, Contingent Work, Corporate Accountability, Labor Mobility
Newsletter: Vol 9, Issue 4
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Zhao, Yun, "China’s New Labor Dispute Resolution Law: A Catalyst for the Establishment of Harmonious Labor Relationship?", Comparative Labor Law & Policy Journal v. 30 no2 (Winter 2009) p. 409-430

Abstract:
It wasn’t until 1994 that China effectively adopted a labor code. In 2007, China added a series of laws aimed at improving and increasing the protection of workers’ rights. The new labor laws address problems that emerged from the 1994 laws. Whereas parties to a labor dispute were previously required to go through arbitration before reaching litigation, the parties can now choose to go straight to litigation. The laws also attempt to remedy the fact that the worker is the weaker party in most disputes. For example, in certain types of disputes, only the employee has the right to appeal an arbitration award. Also, labor arbitration is provided free of charge. Arbitration tribunals may shift the burden of proof from the worker to the employer in certain situations. Also, they have the option of awarding a worker an interim award before the final award is rendered. The limitation period for making an arbitration request is increased dramatically. The new laws also attempt to make the dispute resolution system more efficient by shortening the time by which the tribunal must render an award. The laws also provide for an increase in the number of mediation commissions. The author suggests that certain steps need to be taken in order to allow the new laws to be effectively used. Detailed procedural rules for labor arbitration should be created. Also, the quality and number of arbitrators should in increased. Finally, the legislature should modify existing law to provide that courts shall only review the procedural aspects of arbitration decisions, and not the substantive aspects as well.

Subjects: Arbitration, Case Studies: Country-Specific, China
Newsletter: Vol 9, Issue 3
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Zimmer, Michael J., "Unions and the Great Recession: Is Transnationalism the Answer?", Employee Rights and Employment Policy Journal v. 15 (2011) p. 123-158

Abstract:
This paper discusses how unions in different countries can create a more equal economic order in the wake of the Great Recession. In the first half, the author describes the public policy basis for unionism: that labor is not a commodity and that economic equality can be achieved through collective bargaining. The author then describes neoliberalism, and argues that neoliberalism is fundamentally at odds with unionism because it treats labor as a commodity and sees labor relations as a zero-sum game between capital and labor. To win in a labor dispute, the prevailing party must be able to leverage their economic position against their opponent’s. To illustrate this point, the author describes two strikes, one at a Motts Applesauce plant in New York State, and the other at four Honda plants in China. In China, the tight labor market and high demand for cars gave striking workers an economic advantage, while in New York, a low regional demand for labor and the manufacturer’s product enabled the employer to withstand the strike and ultimately prevail. From these case studies, the author determines that if unions are to maintain relevancy in the wake of the Great Recession, they must do so by influencing entire industries so that their leverage is not dependant on fluctuations in regional labor markets. Unions can do this by opposing globalization entirely or working to correct the aspects of globalization that are unfair. The author argues that unions also should organize entire employment sectors transnationally, and points to the success of the International Transport Workers' Federation and the United Auto Workers as examples of unions that are beginning to reach across national boundaries.

Subjects: China, Collective Bargaining, Labor Mobility, Outsourcing
Newsletter: Vol 12, Issue 5
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