CHINA Law and Practice Contributed by: Linda Liang, Piao Liu, Chutian Wang and Xiangbo Lv, King & Wood Mallesons
Maternity leave Female employees who give birth in compliance with PRC birth control policies are entitled to 98 days of maternity leave, 15 days of which may be taken before delivery. The leave can be extended by an additional 15 days under special circumstances such as dystocia and multiple births. Extra maternity leave is granted by local regulations where the specific length varies from city to city. For example, in Beijing and Shanghai, the total length of maternity leave is 158 days, including a base 98-day period under national law and 60 days granted by local regulations. According to national law, female employees who suffer a miscarriage during the first four months of pregnancy shall be entitled to 15 days of maternity leave, and those who suffer a miscarriage after four months of pregnancy shall be entitled to 42 days of An employee is entitled to three days of marriage leave, according to the national law. Moreover, all legally married couples will be entitled to additional marriage leave granted by local regulations. Paternity leave Paternity leave for male employees is granted by local regulations only. For instance, paternity leave for male employees in Beijing and Shanghai is 15 days and ten days respectively. Childcare leave Childcare leave is granted by local regulations only. For instance, both Beijing and Shanghai have intro - duced childcare leave that entitles eligible parents to five days of fully paid leave each year until the child reaches three years of age. Elderly care leave Elderly care leave is also stipulated in local regulations only. For instance, in Beijing, an employee who is the only child in his/her family is entitled to no more than ten working days of fully paid elderly care leave per calendar year to take care of his/her parent(s) (includ - ing legal adoptive parents) who need nursing care due to illness, injury or disability. Shanghai currently does not have elderly care leave. maternity leave. Marriage leave
Bereavement leave According to the current law, when a parent, spouse or child of an employee of a state-owned enterprise dies, the employee is entitled to take one to three days of bereavement leave. Employers generally refer to this standard in providing bereavement leave to employees. Confidentiality and Non-Defamation An employer may formulate internal policies – or agree with employees in the employment contract or a sepa - rate confidentiality agreement – on relevant matters of confidentiality, including protection of the employer’s trade secrets and other confidential information. The scope of confidential information shall be defined in the agreement at the discretion of the employer. At present, there are no nationwide regulations requir - ing the payment of compensation for adhering to a confidentiality obligation. Therefore, in practice, employers need not pay their employees in exchange for their compliance with the confidentiality require - ments. If an employee violates the confidentiality requirements and causes economic losses to the employer, the employer can claim compensation against the employee based on the internal policy, relevant stipulations in the employment contract or the confidentiality agreement. Similarly, employers can set requirements on non- defamation for employees by formulating policies, or by stipulating relevant requirements in the employ - ment contract or a separate agreement, and can claim compensation for any employee violation and losses caused.
2. Restrictive Covenants 2.1 Non-Competes
A non-compete clause is a commonly seen post- termination restrictive covenant for employees so as to protect the confidential information of the employ - er. Under PRC employment laws, an employer can agree with an employee on non-compete obligations through stipulations in the employment contract or through a separate non-compete agreement. Key non-compete stipulations include the following.
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