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Who Will Represent China's Workers? Lawyers, Legal Aid, and the Enforcement of Labor Rights

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Who Will Represent China's Workers? Lawyers, Legal Aid, and the Enforcement of Labor Rights WHO WILL REPRESENT CHINA’S WORKERS? LAWYERS, LEGAL AID, AND THE ENFORCEMENT OF LABOR RIGHTS i Who Will Represent China’s Workers? Lawyers, Legal Aid, and the Enforcement of Labor Rights Aaron Halegua U.S.-ASIA LAW INSTITUTE NEW YORK UNIVERSITY SCHOOL OF LAW © 2016 Aaron Halegua This work is licensed under a Creative Commons Attribution- NonCommercial-NoDerivatives 4.0 International License. You are free to copy and redistribute the material in any medium or format pursuant to the following conditions. (1) Attribution: You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use. (2) Non-Commercial: You may not use the material for commercial purposes. (3) No Derivatives: If you remix, transform, or build upon the material, you may not distribute the modified material. To view a complete copy of the license, visit https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode. Cover Photo: “Profile of a Master Roofer” by Dan Zen is licensed under CC BY 2.0. About Us Aaron Halegua is a practicing lawyer and consultant. He is also a research fellow at the NYU School of Law’s U.S.-Asia Law Institute and its Center for Labor and Employment Law. His expertise includes labor and employment law, litigation and dispute resolution, corporate social responsibility and supply chains, and legal aid in the United States and China. In his decade of working on Chinese labor issues, he has consulted for Apple, the Ford Foundation, Asia Foundation, PILNet, SEIU, the International Labor Rights Forum, and the American Bar Association. He has spoken on Chinese labor issues throughout the United States, Europe, and Asia. His writings on China have appeared in the Washington Post, South China Morning Post, Berkeley Journal of International Law, Hong Kong Law Journal, and Harvard Law & Policy Review (Online), and he has been quoted in the New York Times and Economist. Aaron has an A.B. from Brown University and J.D. from Harvard Law School. More information about his work is available on his website: http://www.aaronhalegua.com. The U.S.-Asia Law Institute (USALI) of the NYU School of Law seeks to promote the rule of law and human rights in Asia, including both domestic and international law. The Institute, which is funded by institutional and individual grants, serves as a resource and partner to various Asian countries as they develop their legal systems. USALI is especially known as one of America’s preeminent research centers for the study of law in Mainland China and Taiwan and works to improve popular, professional and scholarly understanding at home and abroad through its publications and exchanges concerning comparative and international law. More information is available at: http://usali.org. Acknowledgements The author is grateful to the many people who provided support in the preparation of this report, whether by helping to arrange interviews, locate information, or comment on the manuscript. While each of them cannot be named here, the author wants to thank at least the following individuals: Ira Belkin, Ricky Blum, Jerome Cohen, Paul Dalton, Manfred Elfstrom, Cynthia Estlund, Susan Finder, Hualing Fu, Mary Gallagher, Seth Gurgel, Jamie Horsley, Leping Huang, Thomas Kellogg, Benjamin Liebman, Kevin Lin, Joan Liu, Sida Liu, Carl Minzner, Ross Perlin, Cessa Qian, Mark Selden, Fang Wang, Kan Wang, Xiaolei Yang, and Mingxin Ye. A special thanks is owed to Katherine Wilhelm and her colleagues at the Ford Foundation not only for making this study possible, but also for their critical contributions from its inception to completion. Table of Contents Executive Summary 1 3. Legal Aid through the Trade Union 30 I. Introduction 4 4. Pro Bono Legal Services 32 5. Barefoot Lawyers 33 II. Legal Issues Faced by Workers 6 6. Basic-Level Legal Workers 34 1. Labor Contracts 6 7. Law School Clinics 34 2. Labor Dispatch and Subcontracting 7 8. Bar Associations 35 3. Unpaid Wages (Wage Arrears) 7 9. Non-Governmental Organizations (NGOs) 35 4. Pensions and Social Insurance 8 Beijing 36 5. Workplace Injuries and Occupational Disease 8 Shanghai 37 6. Collecting Judgments 9 Jiangsu 37 7. Pregnancy Discrimination 9 Shenzhen 38 III. China’s Labor Dispute Resolution System 11 V. Assessing the Representation Gap 40 1. Mechanisms for Handling Labor Violations and Disputes 11 VI. Future Strategies 42 A. Administrative Enforcement Agency 11 1. Expanding Worker Education, Training, and Outreach 42 B. Labor Arbitration and Courts 12 2. Reducing Occupational Disease and Increasing C. Mediation 13 Legal Services for its Victims 42 2. The Growing Number and Diversity of Labor Disputes 14 3. Fostering Collective Dispute Resolution 3. Litigation Outcomes and the Need for Representation 15 and Collective Negotiation 43 IV. Legal Service Providers 19 4. Strengthening Anti-Retaliation Measures 44 1. Private Lawyers 19 5. Using Administrative Litigation 44 2. Government Legal Aid through the Ministry of Justice 20 6. Encouraging the Growth of a Plaintiffs’ Bar 45 A. National Level 20 7. Establishing Personal Liability for Employers and Imposing Criminal Sanctions 45 B. Local Practices 24 8. Engaging Employers to Reduce Workplace Injuries Beijing 24 and Labor Violations 47 Shanghai 25 VII. Conclusion 48 Jiangsu 26 Shenzhen 27 C. Shortcomings of the Legal Aid System 28 D. Recent Reforms 29 List of Figures Figure 1 Cases Resolved by LDACs (2004–2014) 14 Figure 2 LDAC Case Resolution Methods and Outcomes (2013) 16 Figure 3 National Legal Aid Statistics (2011–2014) 21 Figure 4 Legal Aid Budget Breakdown (2013) 22 Figure 5 Migrant Workers Receiving Legal Aid and Total Civil Legal Aid Cases (2005–2014) 23 Figure 6 Beijing Legal Aid Statistics (2011–2015) 25 Figure 7 Legal Aid Eligibility and Lawyer Stipends by City 28 Figure 8 Trade Union Legal Aid Statistics (2012) 31 Figure 9 Workers with Court Representation by City 40 Executive Summary China’s rapid economic and social changes over the last few There is now a consensus, it should be noted, that the political decades have fundamentally transformed labor relations in climate for those working on labor issues in China, including the country. As marketization has moved forward, working lawyers, NGOs, and academics, is now more tense than ever people—and particularly those migrating to the cities from the before.This was highlighted by the crackdown in December 2015, countryside—have encountered new forms of abuse and new legal in which public security authorities in Guangdong interrogated challenges. In response, China has made considerable progress in over 20 individuals affiliated with labor rights NGOs, detained legislating new legal protections for workers, facilitating access seven of them, charged four with crimes (convicting three thus to labor arbitration and courts, and expanding government- far), and ran a national media campaign announcing the various operated legal aid programs. Nonetheless, as in other countries, alleged wrongdoings of the NGO activists. The implications of there remains insufficient research concerning the precise scope this tightening environment and its chilling effect on many civil of workers’ current legal needs, the landscape of legal service society actors are also considered. providers, the nature or quality of those providers’ services, and the size of the “representation gap” between legal needs and Key Findings services. This report, commissioned by the Ford Foundation’s 1. The number and diversity of labor disputes is rising. China office, is an effort to better understand these issues and Strikes and other labor-related collective protests that never assist in developing appropriate responses. enter the formal legal system are increasing, with some sources After the Introduction, Section II describes seven prevalent reporting over 10,000 such incidents in 2015. Enforcement efforts work-related legal issues facing Chinese workers: (1) a lack by China’s labor inspectorate, although largely complaint-driven of written labor contracts; (2) the use of labor dispatch and and rarely resulting in the fining of the employer, recover more subcontracting arrangements; (3) unpaid wages; (4) employers’ and more backpay for workers each year. Similarly, the number of failure to make pension or social insurance contributions; labor disputes handled by either a mediation organization or filed (5) the prevalence of workplace injuries and occupational disease; at a labor dispute arbitration committee (LDAC) mushroomed (6) difficulties in collecting judgments; and (7) pregnancy from 875,000 in 2009 to 1.55 million in 2014, and increased discrimination. The list is not exhaustive but provides a sample another 10% in 2015 to 1.72 million. The courts handled 483,000 of the problems that workers face and for which they might seek labor dispute cases in 2015, a 32% increase from two years prior, legal help. Section III of the report then introduces China’s legal and an additional 162,000 contract disputes involving labor issues. mechanisms for addressing these issues, the growing number and Cases concerning unpaid wages and social insurance remain most variety of labor disputes, and how workers fare in this system. prevalent nationally, but some localities are seeing more disputes Section IV describes and evaluates the various providers of legal about termination, severance, overtime, and other issues. services for workers, including private lawyers, government- 2. Workers are often unsuccessful in litigation. Although sponsored legal aid, legal aid through the trade union, pro bono workers are increasingly filing cases at the LDACs and courts, they legal services, “barefoot lawyers,” basic-level legal workers, law often fail to achieve a successful outcome. Since 2007, workers school clinics, bar associations, and non-governmental organ- have become less likely to “totally win” and more likely to only izations (NGOs). Section V then discusses the representation “partially win” in labor arbitration.
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