China Law Help Answers Your Questions on Employment in China

Original Joey Knotts theBeijinger

advertisement

The COVID-19 era has been a mess for businesses – and the people employed by them. Even as we enter the recovery phase, many foreigners in Beijing, as well as those who have been stuck outside of China since the visa ban took effect, continue to face an onslaught of questions about their employment.

To gain some clarity on the subject, we talked with Sophie Mao of the China Law Help blog (chinalawhelp.com), a project of Chinabridge Law Firm, about the kinds of labor questions and disputes that foreigners generally face in China, as well as the questions they might have as a result of the pandemic.

What are the most common labor disputes that foreign employees face in China, and what can be done about them?
Besides some common labor disputes such as late payment of salary or failure to pay for social insurance for the employee (these are also common for Chinese employees), I have noticed there are two kinds of disputes which are common for foreign employees.

First, when foreign employees want to quit, sometimes the employer won’t cooperate by not issuing a release letter or canceling the work permit in time. In cases like this, I believe it’s a smart move to consult with an expert first, then try to negotiate with the employer.

Second, some foreigners don’t understand the law for foreigners working in China legally, and they end up work in China illegally, meaning they work in China without a suitable work permit. When there are any labor disputes, they can’t claim any protection granted by the labor law.

My advice is to do your homework beforehand. If you are found working illegally here, you not only can't get any protection provided by labor laws, but also could be deported and put on a blacklist, and then no one can help you.

advertisement

When a dispute can’t be solved through negotiation, what about arbitration?
If you can provide evidence, most issues could be resolved through arbitration. It’s inexpensive – either party can apply for labor arbitration with a fee of just RMB 10 – but it’s time-consuming.

Alternatively, you can try to complain to the local labor bureau or labor inspection authorities. Sometimes they can help. Of course, you should ask your Chinese friend to visit them with you.

The Supreme People’s Court recently published Guidelines about Lawfully and Properly Handling Civil Cases Related to the Coronavirus Epidemic. What are the most relevant parts of the guidelines that foreign employees in China should know?
In my opinion, there are two parts that are most relevant. First, COVID-19 and the related control and preventive measures qualify as force majeure, so if the employee can’t return to China to resume their job it is not their fault. In other words, even if the foreign employee didn’t come back to resume their job, it’s not a breach of contract.

Second, the employer is allowed to terminate the employment contract because the employee can’t perform their duties in the contract anymore. However, the employer needs to send 30 days’ notice to the employee or should pay the employee one month’s salary instead, and also have to pay severance, which equals one month's salary for each year the employee has worked for the employer. If the employee’s monthly salary is more than three times the local average salary of last year, three times the local average salary of last year will be okay.

Some foreigners may not be able to return to China to complete their contracts. Might this affect their future employment in the country?
I don’t think so. As I mentioned before, this is a force majeure situation and not their fault. Besides, even if a foreigner has an issue with their employer, it usually won’t affect their future employment in China, unless they did something illegal.

What further resources are available in English where foreigners can learn more about labor law in China?
Actually, most of the government websites at the central or local level have an English version. They will publish related laws and rules in their jurisdiction on the website. However, some websites are not always updated very quickly.

One thing that people should be aware of is that when doing their own research about laws and regulations, to understand the law literally is one thing, however, how to interpret and apply those laws is another thing entirely. That's the main reason I started our blog, to provide more nuanced insight into the legal issues that foreigners in China are concerned about, such as how to do business in China, how to work in China legally, etc.

You can find more detailed information about the law in China and how it stands to affect you via Mao's China Law Help blog.