China Employment Law: The Questions We Get

China employment lawyerHardly a day goes by without one of our China employment lawyers (usually me) getting a “quick” question from either or both an employee or an employer seeking a one-minute answer to what is usually at least a five hour question. For why pretty much every China employment law question is at least somewhat complicated, check out China Employment Law: Local and Not So Simple.

The following are probably the most common ones we get and I am putting them here along with our typical answers to get them more broadly seen than our individual email responses.

Example #1: I have worked at the same employer as in ______ (city/province) China for ______ years. I am considering leaving even though the school has offered me a new contract. Am I entitled to any end of service/redundancy pay? Does it matter how much notice I give?

Our Response: I am sorry but because we represent so many China employers we cannot help you at all without first running a conflict check to make sure we don’t represent your employer, But even if we do not, we cannot give you an answer unless and until we review all of the documents pertaining to your employment, particularly your employment contract and your employer rules and regulations (aka employee manual). Then we would need to check the local laws and regulations to see what they say and it may also make sense for us to check in with the local labor authorities as well.

 

Example #2: I’m looking for a lawyer. I hold a ______ (foreign) degree and have working in ______(city/province) China since ______. I have a valid working permit and a residence permit. I have been asking my employer to sign a contract but they kept refusing and now they no longer want my services. They say it is because my services are no longer needed but it is really because I caught them doing ________. Am I entitled to double wages for being employed without a written contract?

Our Response: I am sorry but because we represent so many China employers we cannot help you at all without first running a conflict check to make sure we don’t represent your employer, But even if we do not, we cannot give you an answer unless and until we review all of the documents (things like emails and your employer’s rules and regulations become very relevant here). Then we would need to check the local laws and regulations to see what they say and it may also make sense for us to check in with the local labor authorities as well.

 

Example #3: We just caught one of our employees taking kickbacks. I assume I can just fire him without any repercussions, right?

Our Response: Believe it or not, that would not be a good idea. See China Employee Terminations: Don’t Get Lazy to get some idea why this is the case. The last thing you want is to botch this such that this employee can sue you for back wages, plus penalties, plus — yes, I am not kidding — a return to his job at your company. For us to help you here we would first need to review all relevant employment documents (such as this person’s employment contract and your rules and regulations) and then review local laws and regulations and maybe even talk with the local labor authorities as well.

 

Example #4: How much time off do we need to give our employees for _______ holiday?

Our Response: Without our first looking at what your employment contracts and your employer rules and regulations and the local laws and regulations say, all I can say is that you do not want to get this wrong and you need to give at least whatever time off is required by China’s national laws.

 

Example #5: I just got fired from my job of ______ years and my employer never paid me any overtime. What should I do?

Our Response: I am sorry but because we represent so many China employers we cannot help you at all without first running a conflict check to make sure we don’t represent your employer, But even if we do not, we cannot give you an answer unless and until we review all of the documents (things like emails and your employer’s rules and regulations become very relevant here). Then we would need to check the local laws and regulations to see what they say and it may also make sense for us to check in with the local labor authorities as well. You also should consider whether you would be better off just moving on with your career instead of possibly getting bogged down in a dispute with your former employer. This is especially true if you are in an industry where word of employee contentiousness spreads quickly. I am not telling you what you should do here, but I am saying that these sorts of decisions can have lifetime significance and they should not be made quickly or out of anger and good counseling from a more objective third party is usually in order.

 

Example #6:  XYZ Chinese company wants to hire me starting next month and they say that they cannot give me a written contract right away because of _________. Is it safe for me to go ahead and take the job.

Our Response: It is generally not a good idea to fly halfway around the world to work for a company that claims an inability to abide by the law.

 

Are you getting the pattern? Oftentimes when we respond with something like the above, we get one of the following two responses, grossly summarized, to which we respond generally as noted in italics below:

  1. Thanks. No problem. Good luck.
  2. How do I go about retaining you. Let me explain….

But maybe a third to half the time we get a response like the following:

All I really need is about three minutes of your time on this and I do not need a complete answer, just a quick answer off the top of your head based on the law. This ought to be easy for you because you already wrote about this here [cite] on your blog.

My standard response to this is usually something like this:

Though we are familiar with the laws and practices in China’s major expat cities from our having provided China employment law counsel for countless clients in those cities, because the laws are so localized (sometimes down to the district within the city) and can change quickly and sometimes without notice, we always need to conduct at least some quick research to confirm the current laws and practices.

Also, and just as is true of all sorts of laws and pretty much everywhere in the world, there tends to be general rules on an issue also a slew of exceptions and even exceptions to the exceptions. At this point, we simply do not have nearly enough facts about your particular situation to provide you with an answer to your question. Take for example, example #1 above. I do not know why this employee is leaving or has left. Is it because she was caught stealing? Is it because she is a teacher who hit her students? Is it because her employer is experiencing massive financial difficulties? Is it because she just wasn’t good at her job? Is it because she could not get her work visa extended? And take example #2 above. I do not know what documents the employee has actually signed. Did she sign an employment contract without realizing it? Was she offered an employment contract but refused to sign? Has she ever had an employment contract with this company? I do not know her position in the company. I do not know what led the employer to refuse to sign a written employment contract. Was their a proposed employment contract in writing? And, if so, what did it say? I do not know how the termination was handled. I could go on and on.

For those who persist in seeking a quick answer to a specific China employment law question here goes: it depends.

This article was written by Grace Yang and published on China Law Blog. Original Post: http://www.chinalawblog.com/2017/04/china-employment-law-the-questions-we-get.html      

View the original article here.

Grace Yang

Grace focuses on international business and China law. Grace is admitted to practice law in the States of New York and Washington. Grace is our lead attorney on China labor and employment law.