Who Will Represent China's Workers? Lawyers, Legal Aid, and the Enforcement of Labor Rights
Aaron Halegua, Who Will Represent China's Workers? Lawyers, Legal Aid, and the Enforcement of Labor Rights, New York University School of Law U.S., Asia Law Institute (Oct. 2016)
55 Pages Posted: 6 Oct 2016
Date Written: October 2016
In the past decade, China has made considerable progress in legislating new legal protections for workers, expanding access to arbitration and courts, and expanding the government-operated legal aid system. But how do they fare in this process? Are they able to find legal representation? This report explores the scope of workers’ current legal needs, trends in the mediation and litigation of labor disputes, the landscape of legal service providers, and the size of the “representation gap” between legal needs and services. The report is based on over 100 interviews, observations of legal proceedings, and extensive documentary research. An original analysis of over 30,000 court judgments was also conducted in collaboration with Legal Miner, a Chinese data analytics company.
After the Introduction, Section II describes seven prevalent work-related legal issues facing Chinese workers: (1) a lack of written labor contracts; (2) the use of labor dispatch and subcontracting arrangements; (3) unpaid wages; (4) employers’ failure to make pension or social insurance contributions; (5) the prevalence of workplace injuries and occupational disease; (6) difficulties in enforcing judgments; and (7) pregnancy discrimination. Section III of the report then introduces China’s legal mechanisms for addressing these issues, the growing number and variety of labor disputes, and how workers fare in this system. Section IV describes and evaluates the various providers of legal services for workers, including private lawyers, government-sponsored legal aid, legal aid through the trade union, pro bono legal services, “barefoot lawyers,” basic-level legal workers, law school clinics, bar associations, and non-governmental organizations (NGOs). Section V then discusses the representation gap in legal services that remains, including an original analysis that quantifies how many workers are unrepresented in court litigation. Section VI proposes a series of eight strategies to narrow the representation gap by either reducing the “demand” for services (decreasing labor violations the first place) or increasing the “supply” of quality legal services. Section VII concludes by identifying potential areas for further research.
Keywords: China, labor, migrant workers, mediation, law, law and society, rule of law, mediation, lawyers, dispute resolution, representation, NGO, barefoot lawyer
Suggested Citation: Suggested Citation