What Rights Do You Have as an International Teacher in China?
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We are all currently holding our breath hoping that Beijing and China’s current good fortune as far as new COVID-19 cases go continues. Inter-provincial travel is back on and people are scrambling to claim what is left of summer. Given that international travel is still off the table, foreigners across China are planning vacations as far away from the cities and provinces that have held them captive through the first half of this year.
But do a quick tour of a few expat groups, particularly international teachers in China WeChat groups, and you will find something very alarming. International teachers – usually affiliated with training centers – are reporting that they are barred from leaving their provinces, or even the cities in which their schools are located. These teachers claim that they have been coerced into signing contracts that bar them from leaving their cities or provinces under penalty of contract termination. Others say they have had their salaries arbitrarily slashed and office hours increased.
"Teachers claim being coerced into signing contracts that bar them from leaving their cities or provinces under penalty of contract termination."
As a foreign employee in China, it can be rather difficult to know what actions by employers are sanctioned by law, and how many are fly-by-night tactics by unscrupulous employers. That covers everything from working without a permit to arbitrary changes effected on employment contracts without informing the teachers. So let's get down to the black and white of it.
We spoke to Attorney Steve Li, an expert in legislation, arbitration, and trade in China, to get some clarity on the issue.
First things first, working without a contract is a massive no-no. According to Chinese law, it is the duty of the employer to apply for a work permit for their employees. But should you be caught working without a valid permit, it won’t just be your employer held accountable. You could also be liable, with fines of up to RMB 20,000 and a jail stint of up to 15 days, or in the most drastic cases, deportation. The employer might be fined anything from RMB 10,000 to RMB 100,000 for each employee working illegally at their premises.
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Now, down to the burning question. Does your company have a right to restrict your movement under penalty of termination? Yes and no. Yes, if it is per government requirements such as a quarantine measure to help limit the spread of COVID-19. Certain companies around Beijing and across China have instituted this measure, prohibiting employees from leaving without explicit permission.
But what happens if the COVID-19 situation is under control before contracts with limited mobility clauses expire? In that case, a direction to obey the contract would be a contravention of your right of movement, and as such, you are free to challenge it, and challenging your employer’s decision to limit your movement isn’t enough to legally fire you.
"Only under very limited circumstances may the employer terminate the labor relationship with the employee"
Then there is the issue of reduced salaries and increased workloads. This period has been difficult for everyone and companies have indeed suffered great losses. Many workers have had their salaries slashed. However, these reduced salaries also come with reduced amounts of responsibility. What happens in cases where the boss decides to halve your salary while doubling your workload?
The employee may request the employer to correct this action based on Article 4 of the Labor Contract Law of China. This means the employee can challenge their employer’s decision to reduce their salary, and ask it to be reinstated to the previous amount.
The employee may apply for a court order requiring the employer to pay the full salary specified by the labor contract based on Article 30 of the Labor Contract of China.
The employee may report the employer’s breach of the labor contract to the local labor bureau based on Article 85 of the Labor Contract Law of China.
The employee may terminate the labor contract based on Article 38 of the Labor Contract Law of China and article 32 of the Labor Law of China.
Generally, if the employee works overtime, the employee is entitled to overtime pay based on article 44 of the Labor Law of China and articles 31, 62 and 85 of the Labor Contract Law of China.
Even with all of these clarifications, it is also important to take note of the most important fact:. What is good for the goose might not be what is good for the gander. Meaning, these rights and recourses may apply fully to Chinese employees but not fully to you. According to Li, “The application of those laws to foreigners are sometimes disputable, even the application of the Labor Contract Law of China towards foreigners might be challenged by some local judicial practice.”
Should you wish to pursue legal action against an employee, arbitration is always an option, and you do not have to worry about retaining a lawyer as you can choose to represent yourself at such hearings. A lawyer is not necessary for doing so as you are allowed to represent yourself and the court clerks will help you with the filing.
READ: Return of the Laowai? Europe and BLCU Lay Groundwork for Expat Re-Entry
This article originally appeared on our sister publication, beijingkids.
Images: Unsplash
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