A dirty secret in the education industry is the lengths some private schools will go to to avoid fulfilling pregnancy and maternity rights laws. Though these schools claim to be for children, when they fail to provide women with their legal right to maternity leave and benefits, they exemplify that they are only about the bottom line of profits.
Due to a language barrier, fewer social connections and an often inadequate understanding of Chinese Labor Law, international female employees are a particularly vulnerable group to such practices. That’s spoke with teachers who have first-hand experience of such practices and followed up with a lawyer who told us how to avoid being taken advantage of by such schools.
Cara Blitz, a pseudonym, is fighting with a “very well-known” international school in Ningbo, Zhejiang province. She is also running a WeChat group to help others find the information they need to challenge schools that illegally block or change an employee’s maternity leave. “The group is meant to inform and empower pregnant women as well as their partners. We have rights. Don’t settle for less,” Blitz writes in the group. “The law is on your side. The only way they win is if you roll over.”
Image via Wikimedia
Over 200 women have learned how to find and make complaints at labor bureaus thanks to the group. Chinese law explicitly states that foreigners are included in the national maternity law and this information is readily available for group members. Additional resources, such as birth plan contracts, ayi contracts, bilingual translations of laws and more are also available.
Blitz and other members share first-hand experiences of illegal “tricks” schools will use to get out of their legal responsibilities. For example, asking teachers to resign before their maternity leave starts, refusing to renew a contract until one year after a child’s birth or claiming the employee was supposed to inform the school of the pregnancy before signing a contract. They also share anecdotal stories with silver linings, like a woman who left China and the school after they denied maternity rights. “She hired a lawyer and won the case from abroad,” Blitz explains.
A member of the group, Laura Baucom, explains her battle. She met with her school’s general manager who is also the son of the founder and owner of the company. He listened attentively about how the school is blocking all her rights and agreed to give her the full benefits she is owed and even apologizes. Baucom explains it is the first time someone had “spoken to [her] like a human” at the school. Sadly, things don’t turn out the way the general manager said they would. “They sent me the agreement to sign and absolutely nothing that was discussed was included. Now, we are back to fighting with them. I have gotten some things, but we’re still working.”
Blitz is documenting all the dates and times the school has used tactics to deny her rights, such as HR ignoring written requests for the school to pay social insurance. The school retaliated by releasing a handbook outlining that foreign teachers can only receive four weeks of maternity leave. An expat Head of School falsely claimed that “Certain laws apply only to Chinese citizens. In the case of maternity leave, Chinese citizens pay into social insurance that covers their maternity leave, at a minimal rate of pay. This is not currently available to non-Chinese citizens.”
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Blitz decides to bring legal documentation explicitly stating that foreign employees are included, the Head of School refuses to listen and later says he is doing everything to help her. Blitz is still a few months away from the birth of her child when the school’s HR demands that she bring a lawyer to the school. After months of fighting, they finally agree to 128 days of maternity leave but reduce her salary to RMB4,000 per month. They also demand a birth permit to honor the maternity rights, which foreign women are not required to have to give birth. Additionally, HR refuses to pay her housing allowance and her contract bonus until Blitz returns to work after her maternity leave.
Blitz eventually returns to work after her maternity leave, but the bonus is still not paid and instead, the school demands she resigns to receive the bonus. Furthermore, Blitz is threatened with litigation if she “distributes slanderous statements regarding the school or its employees… which may damage the reputation of the school.”
Along with all of this, the school applies significant and callous stress to Blitz while she is working. Blitz needs to take time during work to breastfeed her child, but the school gives her a larger teaching load to cover what she is missing. “It is meant as punishment,” Blitz says. “They also wanted me to come back to work two weeks after my C-section, even though they knew my son was sick.” Blitz’s son was diagnosed with a congenital disease that often leads to death in newborns.
The stress of fighting for her wages and the time off work has taken a toll on Blitz and she admits to depression and suicidal thoughts. She is taking anti-depressants and therefore had to stop breastfeeding. However, that doesn’t stop Blitz from fighting.
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After months of fighting, she finally wins arbitration and receives her full wages. “During the case, I needed to prove that I was married and that China recognized our marriage. They nearly refused to award maternity benefits because the marriage certificate is in English. Luckily, I had three certificates and one of them had a Chinese embassy stamp of authentication.”
Steve Li of Shanghai’s Sino Par Law is a well-known attorney and often gives legal work advice to expats in the country. Li says, “The employer should pay social security for the employed foreign personnel.” Li notes the Interim Measures for Foreigners Employed in China to Participate in Social Insurance as a reference. “If an employer recruits foreigners, it shall register for social insurance within 30 days from the date of applying for the employment certificate and participate in the basic pension insurance for employees, employees’ basic medical insurance, work-related injury insurance, unemployment insurance and maternity insurance.” Though many schools say that it’s a greater financial burden on both the school and the employee as both must pay into the social insurance, teachers find that this becomes a big issue during maternity discussions and green card applications.
Next, Li addresses claims that foreigners aren’t covered in maternity law. “The Special Regulations on Labor Protection for Female Employees promulgated by the State Council stipulates that employers shall not reduce employees’ wages on the grounds of pregnancy, childbirth or breastfeeding. Foreigners are not excluded from the scope of application of this provision. Foreigners who are employed in accordance with the law are entitled to basic 98-day maternity leave.”
What if your school isn’t paying for social insurance? Li explains that, though the Social Security Department will not pay maternity leave allowances if neither the employer nor employee is contributing to the fund, the employer still needs to fulfill their obligation. “In this situation, the employer will not be exempt from the obligation to pay wages during maternity leave.”
Schools may fight hard to get teachers to not take their full maternity leave because, without support from social security, the cost of having to cover maternity leave is very high. Li notes that some cities have policies that allow for more maternity leave under certain circumstances but should not be less than the basic national allowance. “The number to call for further information on local policies is 12333.“
Li’s last piece of advice is in view of employee rights and the law being on the side of the employee. “If the employer fails to pay social insurance as required by law, the employee can require the employer to cover the losses. Take action such as reporting them to the labor bureau or suing to make sure wages are fully paid.”
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Here are some tips to avoid being caught in this sort of situation. Please note these tips are anecdotal and do not constitute legal advice.
Don’t work for schools that don’t pay social security or maternity.
In the That’s January 2022 issue, CEO of Teaching Nomad Brett Isis mentions that China’s job market is currently favorable for teachers as demand is high, but supply is low. If you know you’re going to start a family in the next couple of years, don’t work for schools that don’t fulfill their obligation on maternity leave. Of course, make sure you check the school’s policy with both the recruiter and the school. Ask to see teacher handbooks, read the work contract for the policy, ask for a real example pay stub with private information blacked out to check that social security is being paid and speak to teachers at the school about these policies during the interview stages. If a school refuses to provide this information, it’s a red flag. When you decline to work for that school, tell them why. It might not change the situation for you but if enough teachers (both male and female) complain, schools may change.
If you’re already working at a school that refuses to pay maternity benefits, get all of their statements of refusal on record.
Digital copies from official emails are the best records due to the timestamps. However, in writing with signatures on letterheads and stamps are also sufficient. Additionally, WeChat messages can be used as evidence in Chinese courts. If the school refuses to write down their statements and only wants to speak to you in person, do not accept a meeting unless they agree to it being recorded and that all present state their name and position at the school. They still might refuse, so try your best to take notes, record dates, times and, if possible, take a witness.
Keep and document all pay stubs along with costs you incur due to refusal to pay maternity benefits or allow maternity leave.
Some women have been advised that the school has to break the law first by not paying maternity wages before a teacher can sue. Keep evidence of the financial burden the school puts on mothers of newborns, from ayi costs to lawyer fees, as they may be included in the settlement.
File complaints at your local labor bureau and SAFEA.
Sometimes all that’s needed is complaints to offices that deal with the school’s ability to obtain work permits for foreign teachers and the labor bureau. In this case, several complaints from multiple teachers are better than just one teacher complaining. Unfortunately, some women have found that lower-level government workers are not informed about the application of maternity law in regards to foreigners. In this case, make the complaint in person and show the law to the workers. If complaints with these organizations are not successful, don’t be deterred. Judges in arbitration will ultimately determine that the national laws regarding maternity rights have precedence.
Ask your lawyer to send an official notice to your school warning them that, if reasonable discourse does not meet a satisfactory outcome, you will pursue your rights.
It is advisable to pursue all opportunities to resolve the issue out of court. If HR and the principal refuse to let a teacher talk to the school’s owners, this notice may be the only way to force their hand. Going down this route will reflect incredibly well on the teacher if all other opportunities for settling the matter are pursued. For some women, when complaints did not solve the issue, an official letter from a lawyer was enough.
Go to court.
If all else fails, go to court and sue for your rights. Chinese law is weighted heavily in favor of the employee. Some city government bureaus will even publish the news of these lawsuits on their official WeChat accounts when the cases are solved.
[Cover image via Pexels@Matilda Wormwood]