In August 2020, a bank employee released a real-name statement on Weibo, claiming that he had suffered long-term mental torture from his leader, such as, he was ordered to stay at the pantry next to the elevator for three consecutive months, and he could only go out for dinner and go to the bathroom during working hours; if he disobeyed this order, the security personnel would force him to go back to the pantry. Following with this piece of news, the topic of “Power Harassment” (commonly known as “Workplace PUA”) becomes a hot topic again.
“职权骚扰” derived from its English phase “Power Harassment” (hereinafter referred to as “PH”). In Japan, PH happens frequently. However, in China, there is law or regulation has give a definition to PH.
According to the “Japan Power Harassment Prevention Act” (Note: actually refers to the “Regarding the Comprehensive Promotion of Labor Measures, and Relevant Laws on Improving the Stability of Employment and Enrichment of Professional Life” paragraph 2 to 7 in Article 30, and relevant revised content), to identify PH shall consider 3 elements: ① a superior relationship at work; ② beyond work needs and corresponding scope; and ③ the relevant employee’s working environment has suffered with negative effects. The “superior relationship at work” means that it is difficult for the victim to resist or refuse the infringer with a superior status. For example, the infringer occupies a high-level position, although the victim occupies the same level or lower level position, the victim needs the infringer’s cooperation in work. The Japanese law has listed 6 typical PH behaviors, such as, personal assault, mental assault, isolation, over-demanded, under-demanded, and personal infringement. The case in the beginning is a typical “isolation” PH behavior.
Regarding the similar behaviors as listed in the Japanese law, in China, the victim could consider to protect his rights by applying relevant provisions in the “Labor Law”, and the “Law on Administrative Penalties for Public Security”.
First, Article 96 of the “Labor Law” stipulates that where an employer has compelled employees to work by force, threat or by means of illegal restriction of personal freedom; or has insulted, physically punished, beaten, illegally searched or taken employees into custody, the public security organ may detain those liable persons for up to fifteen days, impose a fine or issue a warning to them; should the case be serious enough to constitute a crime, the liable persons shall be subject to criminal liability in accordance with the law.
Second, paragraph 5, Article 42 of the “Law on Administrative Penalties for Public Security” stipulates that a person has repeatedly dispatched pornographic, humiliating, intimidating or other information to disturb the normal life of another person, the public security organ may detain the person for not more than five days or be fined not more than CNY500; and if the circumstances are relatively serious, the person shall be detained for not less than five days but not more than ten days and may, in addition, be fined not more than CNY500.
For the rest PH behaviors, it is very difficult for the victim to claim for liabilities from the perspective of administrative or criminal punishment under the current Chinese legislation system. If a company’s internal rules and regulations have prescribed the punishment on PH, then it is possible for the employer to apply discipline punishment on those infringers. However, employers should be very caution on identifying a PH behavior and deciding the appropriate punishment methods, because it is very difficult to provide evidence in the relevant PH disputes.