Stuck Outside China: The Good, The Bad, and The Ugly

Stuck Outside China:  

The Good, The Bad, and The Ugly

Intro

Since the late March announcement of the suspension of entry to China for almost all non-Chinese citizens, foreigners on wechat have been split into two groups: those in China and those stuck outside. This geographic split leads to a split in labor market challenges. Those on the inside worry about what will happen as the economy opens back up, but many see opportunities as long as they can keep their work documents in order. For those on the outside the concern is when will they get back in and what will happen to their jobs. This essay will explore that last issue.

I use the classic 1966 Spaghetti Western, The Good, The Bad, and The Ugly to characterize job possibilities for those foreigners now stuck outside China but who still have jobs within.

The Good

In terms of the Good, there are two possible employment outcomes that I see for those stuck on the other side of the border from their employers. I call these substantial work and reasonable dismissal. The substantial work scenario is based on a renegotiation of the contract to allow the worker to do a near normal workload remotely. This is a plausible scenario but workers offered continuing online work should make sure to get a written contract amendment to redefine the terms of work and compensation as called for by Labor Contract Law (LCL) Article 35.

Reasonable dismissal is little more complicated than substantial work. It is clear enough that being unable to return to a job in China is a case where an act of government changes the objective conditions upon which a labor contract was based. As such this is a clear case where Force Majeure comes into play. As I have argued elsewhere, Force Majeure as a concept appears in LCL 40.3 (as well as in Labor Law Article 26.3). The requirement set out there is that the labor contract may be terminated when a conjunction of conditions coexist. Namely, (1) objective conditions upon which the labor contract was based change such that the contract can no longer be performed and, (2) no agreement is able to be reached between the employer and employee on how to adjust the contract so that it can be performed under the new prevailing conditions. The difference here with the substantial work scenario is that in the substantial work scenario, agreement on adjustment of the contract was achieved. When that does not happen the most appropriate remedy would be dismissal under LCL 40.3 which comes with one month notice, or pay in lieu of that notice, and statutory severance based on the standards in LCL 47 (roughly one half a month of pay for each six months one has been at the employer one is leaving).

Dismissal under LCL 40.3 seems reasonable, but there is a catch. People stuck outside of China cannot legally be fired under LCL 40. This is because the Notice on Improving the Handling of Issues in Labor Relationships During the Period for Protection and Control of Pneumonia from the Novel Coronavirus Infection mandates that “For employees … who are unable to provide normal labor as a result of government quarantine measures or other emergency measures, the enterprises shall pay their salaries for this period and must not end their labor contracts on the basis of articles 40 and 41 of the Labor Contract Law.” Those stuck outside of China are clearly unable to provide normal labor for any in-person job without a modification of their contracts. So, what can be done to legally enact a reasonable termination? LCL 36 allows that “[a]n employer and an employee may discharge the labor contract upon unanimity through consultation.” Thus when employer and employee can agree on the terms of discharge for a labor contract, ideally modeling them on LCL 40.3, then a mutual termination can be agreed under LCL 36. If you negotiate for a reasonable dismissal be flexible in your severance request and make sure to get the release documents you may need, and that the terms of the termination, including severance and documents, are specified in a written agreement.

The Bad

For those not lucky enough to have a substantial work or reasonable dismissal scenario, many will end up with some variation of the Bad. Both variations of the Bad involve minimal or no work and similar levels of pay. In one scenario, which is legally defensible, if the employee is not working or doing minimal work, then the employer is justified in only paying the employee at the living allowance standard. The living allowance standard is a percentage of the local minimum wage specified in the local wage payment rules. A second version of the Bad would be no work, no pay. The legal status of this unpaid leave is questionable, unlike minimal or no work and living allowance pay, but no work, no pay may be all that some employers offer, and it is better than the Ugly, as we shall soon see.

The Ugly

The Ugly option in our Sergio Leone inspired trichotomy is the axe. Unlike the graceful guillotine of separation soothed by the solace of severance in the Good variation of reasonable dismissal, this is a brutal hacking with the blunt blade that is LCL 39.2. This is firing the employee for serious violation of the employer rules. The most obvious serious violation of employer rules being absenteeism, and for those stuck outside of China, being absent from the workplace is a given. Since almost all government mandated epidemic control rest periods ended on 10 February, employers have the right to call employees back to work, even educators who are prohibited from doing offline teaching. In most cases, employers can ask that whatever other tasks are arranged be done from the work location or a reasonable replacement for it if circumstances require. Thus if employees do not return to work when ordered to, they can be dismissed under LCL 39.2. Since LCL 39 is the article which deals with dismissal for the subjective serious fault of the employee, those who are dismissed under it do not have severance rights and do not need to be given prior notice.

The question arises as to whether a dismissal under LCL 39.2 would be legal, given that the employee is blocked from returning by an act of government. There is a continuum of possibilities that make it clearer in cases at both extremes and muddled in the middle. On one end the employer told the employee to leave China and asked the employee not to return until after 28 March when entry was restricted. Here the employee has a strong case that the LCL 39.2 termination was not justified, and that it is an illegal termination. On the other end of the continuum, the employer did not ask the employee to leave China but did ask the employee to return prior to 28 March. In this case the employer’s justification for an LCL 39.2 termination would be very strong. Between those two extremes there are numerous permutations of being asked to leave, and/or to return, and dates being given or left unsaid, and time periods for return being reasonable or not. While employees might in some particular circumstances have cases that are strong enough to take to labor arbitration, the burden of filing and following up on the case, and doing so in China, will always be on the employee. Furthermore, in many cases the outcome will be unclear at best, and if the employee loses, in some cases she could be subject to counterclaims.

Conclusion

Sergio Leone’s masterpiece deconstructed the mythos of the Western centered on the struggle and eventual triumph of an unproblematic hero. It turned the Western of John Wayne upside down, with a trio of anti-heroes set in a violent critique of violence. Like the classic Western detached from and simplifying complex realities, the theoretical world posited in China’s labor laws can seem distant from the practical perspective of the foreign worker in China. The theoretical foundations of labor law in China are “the principles of lawfulness, fairness, equality, voluntariness, consensus through consultation, and good faith (LCL 3).” But for those who actually work in China, these lofty principles can seem as detached from the everyday culture of work and employer-employee relations as a simplistic, black-and-white John-Wayne-style hero seems from the critical chronotope of Leone’s masterwork. Here is hoping that in the Chinese employment standoff many are now facing, like Clint Eastwood (The Good) in the film, you come away with the gold and ride off into the sunset.

References

The Good, the Bad and the Ugly. Director Sergio Leone. United Artists, 1966. Film.

Your PPE: Pandemic Pay Explained, Force Majeure & Normal Labor

Labor Contract Law of the People’s Republic of China

http://english.www.gov.cn/archive/laws_regulations/2014/08/23/content_281474983042501.htm

中华人民共和国劳动合同法

http://www.gov.cn/flfg/2007-06/29/content_669394.htm

Labor Law or the People’s Republic of China

http://english.www.gov.cn/archive/laws_regulations/2014/08/23/content_281474983042473.htm

中华人民共和国劳动法

http://www.gov.cn/banshi/2005-05/25/content_905.htm

Notice on Improving the Handling of Issues in Labor Relationships During the Period for Protection and Control of Pneumonia from the Novel Coronavirus Infection

https://www.chinalawtranslate.com/en/notice-on-improving-the-handling-of-issues-in-labor-relationships-during-the-period-for-protection-and-control-of-pneumonia-from-the-novel-coronavirus-infection/

人力资源社会保障部办公厅关于妥善处理新型冠状病毒感染的肺炎疫情防控期间劳动关系问题的通知 人社厅明电[2020]5号

http://www.gov.cn/zhengce/zhengceku/2020-01/27/content_5472508.htm

The Dialogic Imagination : Four Essays. 1981. by M. M. Bakhtin (Author), Michael Holquist (Editor, Translator), Caryl Emerson (Translator).University of Texas Press Slavic Series

https://books.google.co.jp/books/about/The_dialogic_imagination.html?id=Pa1iAAAAMAAJ&redir_esc=y

Reliant-CN Wechat QR

Ask for more information about Reliant’s paid individual consultations and other fee based services.

欢迎垂询睿来付费个人咨询及其他付费服务。

Copyright Notice版权声明

This article is the author’s original, non-profit work product. The original author and publishing information must be retained in any reproductions. For commercial use, please contact the author: [e-mail].

本文为作者原创，非盈利性质的转载，须保留作者和原始发布地址。商业用途请联系[e-mail]。

How Reliant can help
We can help you get better results when in a China labor dispute. We offer nationwide strategy consulting, planning, translation, and editing services, as well as work permit processing and consulting, and we can act as an agent for many matters in Beijing.About Reliant
Reliant’s co-founders are Josh and Lee. Josh is a former Fullbright Scholar educated at Yale and Tsinghua University. He is a native English speaker who has been featured on Chinese language television programs for his Mandarin language abilities, and has lived and worked in China since 1999. A native of Beijing, Lee was educated at Renmin University and holds a Chinese Human Resources Professional certificate. As specialized labor consultants we know China labor laws and administrative regulations. We are not lawyers but we work with attorneys as needed.

WeChat: Reliant-CN

[e-mail]

Labor Contract Review

Labor Dispute Consulting

Work Permit Consulting