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[Talk to my Lawyer]: Help! I'm a Teacher! What About These New Laws?

Unpacking the new policies affecting the education industry
2022-01-16 12:00:00
"Talk to My Lawyer" is an ongoing SmartShanghai column discussing legal matters in Shanghai. SmSh invites qualified lawyers from our directory to give us legal advice on a range of issues, including commercial law, property law, contract law, and keeping-us-out-of-jail law.

The legal framework governing China's education industry underwent tremendous changes in 2021. Given that the education industry is a huge employer of expats in Shanghai, I thought it might be good to cover how these changes might affect people working in said industry. If you are an educator, work in school administration, or know someone who might, read on.

As we know, several educational institutions have been closed and many training teachers have been laid off. This this due to China's most recent policy regulating the education industry - the "Double Reduction Policy".

So, what is the "Double Reduction Policy" exactly?

The goal of "Double Reduction" is "to effectively reduce the burden of excessive homework and off-campus training for students in compulsory education". To achieve this, on July 24, 2021, two major government bodies issued an administrative regulation: "Opinions on Further Reducing the Burden of Compulsory Education Students' Homework and Off-campus Training".

The regulation has imposed many restrictions on exactly these two things: students' homework and off-campus training.

Is extra-curricular tutoring as an expat in China no longer allowed?

Short answer: It depends on who you are tutoring and what you are tutoring.

This new policy is mainly impacting kids aged 6 to 15. (But there's a few caveats to this as well — see below.)

That's the ‘who'.

This is the ‘what': The new policy enacts new restrictions on certain subjects — English studies, of course, as well as mathematics and others — but elective subjects like music, sports, art are still permitted.

Here's a bit more detail on the specifics of these two classifications:

Training content is divided into two categories: "subject categories" and "quality categories". According to the Ministry of Education, "subject categories" are the following: English, Education on Morality and Rule of Law, Chinese Language, History, Geography, Mathematics, Physics, Chemistry, and Biology, among others. "Quality categories" include training in anything related to art, sports, and music.

So the English training center I work at...

... is directly impacted. Off-campus English training institutions are viewed as "subject training institutions". According to the new policy, "subject training institutions" are open to very strict restrictions, including not being allowed to make profits, not being allowed to absorb capital financing, restrictions on the duration of online training, and not being allowed to be conducted on holidays or weekends.

Existing "subject training institutions" will be registered as non-profit institutions and the amount they are allowed to charge for tuition fees has been greatly reduced.

In addition to that, the establishment of new "subject training institutions" has been halted for all age groups — not just the 6 to 15s.

So, yeah. Not only have the jobs for people working in this field been regulated out of existence, the facilities they would find employment at have been restructured away from even offering these positions.

Again, however, "quality education training courses", which include training in art, sports, music, are less restricted and we're seeing the industry attempting to shift into these areas.

You can still take an art class in English from a foreign teacher, working on your art skills as well as your conversational English...

So, huh. This is a big deal. ...What's the reason for this new policy?

This is indeed a big deal. As for the reasons behind it, there are many different interpretations and understandings. On the surface, the purpose of this new policy is to reduce school-age childrens' academic burdens and create a more relaxed and comfortable living environment for them.

However, many people believe that this new policy is also an attempt to reduce financial burden on parents and families, level the social playing field for kids in differing income brackets, and ease the pressure of competition for... well, for everyone.

What about online training?

To be precise, this new policy does not prohibit online training.

But, yeah, it imposes specific restrictions on class interval, time, and duration. Online training can not exceed 30 minutes. The interval between courses can not be less than 10 minutes. Classes have to be over by 9pm.

And, of course, training content is subject to the same restrictions as stated above. Online art classes, yes. Online English classes, no.

Also important to note: The new policy clearly prohibits foreigners located outside of China from conducting education and training for Chinese students. As such, cross-border training institutions, such as VIPKID, have announced that they will completely stop online courses.

Part of the new policy is meant to address and regulate workers in the industry. Moving forward, all teachers and trainers need Chinese-recognized teaching qualifications, a valid visa, and to be working in an institution that has been recognized by the government to adhere to the rules vis-a-vis training content.

Anything else?

Yeah, no more ads. Training centers can't advertise anymore. The policy clearly stipulates that education and training institutions and projects are prohibited from carrying out advertisements.

The purpose of this is to reign in the massive advertising campaigns of for-profit training centers, which have been viewed as causing parental anxiety. With the rise in demand for these sorts of services in the last 20 years or so, we've seen overwhelming and sometimes dubious advertising in this field — and no one's happy about it, so they're restricting it.

The school I was teaching at had to close because of this new law. Is this considered force majeure and does it give them the right to not pay my severance?

From parents looking for tuition refunds to employees looking for their salaries, generally speaking, the implementation of this new policy will not give employers the right to refuse payment of labor severance or refunds. They must satisfy the terms of the contract, whatever those terms were agreed upon.

Although the new policy may be controversially considered a "force majeure", it does not constitute a default under the labor law that would negate the responsibility of the employer to pay severance or damages, unless there is a clear agreement regarding this situation in the contract between the employers and employees.

How are general schools affected by all this?

Okay, so we've been discussing the second part of the new policy: "off-campus training".

Public schools are "campus training" facilities and are impacted by only the first part of the new policy — the "compulsory student homework" bit.

As such, schools are called to adjust and reduce the amount of homework for school-age students.

Students in first and second grades of primary schools can not have written homework assignments. (Other consolidation exercises can be allowed.)

Students in the third to sixth grades of primary schools cannot have more than 60 minutes of written assignments.

Junior high: 90 minutes.

The idea behind this is this thinking: the school controls class time. After-class time should not be more class work. And should be controlled by the parents. The policy has an emphasis on sports, music, and artistic activities for this time.

What about international schools?

Depends on how they are classified. Many international schools are private schools and therefore open to the restriction on "subject category" training institutions, specifically the provision that said institutions can not absorb capital financing.

The policy states that foreign capital is now not allowed through mergers and acquisitions, entrust operations, franchise agreements, or use variable interest entities. As a result, a large number of "subject category" education institutions will experience a rupture in their capital chain, and the large-scale and rapid development that was originally based on capital will disappear.

This is why a large number of training institutions, and even private schools are enacting layoffs, shrinking, and restructuring.

I'm a teacher in the US and got offered a job to teach online in China. Can I do that?

No. You can't. That's illegal. Your employer will face various punishments in China upon discovery and most definitely be shut down.

I want to hire a private teacher for my child to study Mandarin. Is this still possible?

This is based on several factors, including how old your child is and their nationality. The new policy is directed at Chinese students. Foreign residents doing language study is regarded as a life skill, more like the "quality categories" discussed above. Shouldn't be a problem.

For Chinese kids, however, depending on age and the factors discussed above, Mandarin training could fall under "subject category" classification and be subject to the restrictions outlined above.

So this policy, is this a draft or has it already been implemented?

This new policy has been implemented. This is the new normal. This is the brave new educational system. Under this new policy, various provinces and cities will also formulate more detailed and clear regulations and rules, so as to ensure that this new national policy can be better implemented in different regions.