Wreck of The Old 37 or How not to quit your job

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“Take this job and shove it, I ain't workin' here no more,” starts the country classic. Though Take This Job and Shove It is mainly associated with Johnny Paycheck, it was written by David Allen Coe, who might best be described as a (beyond good and) evil genius. Though Coe wrote the song and got the writing credit, the musical glory went to Paycheck. This seems to have irritated Coe as three years after the release of Take This Job and Shove It, Coe released Take This Job and Shove It Too, which included the lyrical lamentation:  “Paycheck, you may be a thing of the past.” My point, besides being able bring up David Allen Coe and Friedrich Wilhelm Nietzsche in the same paragraph, is that quitting your job is a lot like writing a song about quitting your job:  it is better to get it right the first time and not be forced into an awkward take two too.

Among foreigners in China today, the conventional take on employment resignation is rooted in a sense of good faith. Though some might want to shout “you better not try to stand in my way, when I'm walkin' out the door;” most submit thankful, or even apologetic, written resignation notices 30 or more days in advance of their last day of work. This is understandable since both the notion of good faith and the 30 day prior written notice of resignation are part of the Labor Contract Law of the People’s Republic of China (LCL). The former is in Article 3, which reads in part:

“Labor contracts shall be concluded in adherence to the principles of lawfulness, fairness, equality, voluntariness, consensus through consultation, and good faith.”

While the latter is in Article 37, and reads:

“A worker may have the labor contract revoked by giving a written notification to the employing unit 30 days in advance. During the probation period, a worker may have the labor contract revoked by notifying the employing unit of his intention three days in advance.”

Simply giving a prior written notice that one wishes to leave a job seems reasonable and straight forward. What could go wrong? Actually, the most common issue we at Reliant see in labor disputes for foreigners in China is employers who do not want to let their employees resign. Threats, intimidation, illegal breach penalties, dubious damage claims, and withholding of release documents are all too common. When employees exercise good faith and employers do not, it only exacerbates the already intrinsic inequality between labor and capital that labor law supposedly exists to ameliorate. 

When both sides actually do act in good faith then termination of the labor relationship can be mutual. That does not mean that the termination conditions are ideal in every respect for all involved, but it does mean both sides can reach a coercion-free (in so much as that applies to capitalist labor relations) compromise, the consensus through consultation of LCL 3. There is also an appropriate provision in LCL for this type of mutual termination, namely LCL 36, which reads:

“An employing unit and a worker may revoke the labor contract if they reach consensus on the matter through consultation.”

The best resignations are mutual terminations, cooperative LCL 36 resignations. From this point of view it becomes a bit easier to see how the 30 days notice of LCL 37 is something of an aggressive stance. An LCL 37 resignation is unilateral. It is the worker informing the employer. The purpose of the 30 days, or 3 during the probationary period, is to give the employer time to fill or otherwise deal with the vacancy the worker’s departure will supposedly create. 

Since the purpose of LCL and labor laws and administrative rules in general is to protect the worker against the greater power of the employer, the necessity for LCL 37 is plain. But LCL 37 is not the most protective provision of LCL, and if you are in, or anticipate being in, a labor dispute where the other side has significant financial and linguistic advantages, it is only prudent to avail yourself of all the legal protection possible. That is where LCL 38, the full text of which appears below, comes in:

“A worker may have the labor contract revoked if the employing unit is found in any of the following circumstances:

(1) failing to provide occupational protection or working conditions as agreed upon in the labor contract;

(2) failing to pay labor remuneration on time and in full;

(3) failing to pay the social insurance premiums for the worker in accordance with law;

(4) having rules and regulations that are at variance with laws or regulations, thereby impairing the worker’s rights and interests;

(5) invalidating the labor contract as a result of one of the circumstances specified in the first paragraph of Article 26 of this Law; or

(6) other circumstances in which a worker may have the labor contract revoked as provided for by laws or administrative regulations.

If an employing unit forces a person to work by resorting to violence, intimidation or illegal restriction of personal freedom, or if it gives instructions in violation of rules and regulations or gives peremptory orders to the worker to perform hazardous operations, which endanger his personal safety, the latter may revoke the labor contract forthwith without notifying the employing unit of the matter in advance.”

Where LCL 37 gives the worker the right to terminate the contract without cause, but with reasonable notice, LCL 38 gives those workers who have cause the right to immediate resignation. In addition, an LCL 38 resignation brings with it the right for the worker to claim severance payment from the employer. (Although LCL 36 also conveys severance rights those are only in cases where it is the employer who first raises the possibility of termination, so that aspect of the provision is not relevant to the topic of resignation.)

The larger takeaway here is that if your resignation is, or might well become, entangled in a labor dispute, you are best served by resigning under LCL 38 and not LCL 37. This is because an LCL 38 resignation gives you leverage in dealing with the employer. This is mainly in the form of the severance claim though there are other aspects too. But most foreign workers we talk to are not interested in severance claims. They simply want to get their release documents and move on. In fact, many make a repeated point of not wanting to get money from their employers. But that is missing the point. Just as employers often use threats and, usually unfounded, financial claims in efforts to coerce employees, so employees need to defend themselves and incentivise legal and ethical behaviour on the part of employers though the use of legally substantiated financial claims.

If you initially resign by giving 30 days written notice and failing to cite LCL 38 or any LCL 38 cause for the resignation, you may wind up trying a take two resignation in an effort to get back leverage you needlessly neglected to claim at the outset of the labor dispute, maybe before you realized it would become a labor dispute. If your dispute does go to arbitration or court, depending on details, your updated resignation may not be seen as effective and you may be stuck with much less leverage to push for a favorable resolution than you could easily have had, had you not given an LCL 37 resignation in the first place.

But what does all this mean in practice? If I want to resign from my job what should I do? Well, if you haven’t already, go listen to some David Allen Coe (If That Ain’t Country … , or Spotlight are both good places to start), but since we are talking about your resignation and not Coe’s, below is a step by step guide for how to approach resignation as a foreigner working legally in China.

First, figure out what you want to do next after you leave the job. Do you already have another job in China? Do you want to go work elsewhere? Will you go travel for a while and not work? Did you win the lottery? Or lose your shirt in the futures market? There are many possibilities, you just need to be sure what you are planning on doing.

Second, figure out what specific documents you will need from your present employer to realize the goals you set or clarified in step one. This mainly applies to those who plan to immediately start another job in China, as they have to deal with the work permit system (more on this in other essays). Generally speaking this will mean getting a cancellation letter (Certificate of Cancellation of Foreigner’s Work Permit/外国人来华工作许可注销证明) and a release letter (Certificate of Labor Contract Termination/离职证明 or 解除劳动合同证明), though it can include other documents and related requirements that vary with local regulations and practices.

Third, discuss the possibility of ending your employment with your employer. Do not send a written resignation at this point or you may find yourself, like our anti-hero, David Allen Coe, having to come back for a second try, at a disadvantage for having to do so, and pissed off about what happened with Mr. Paycheck. This discussion is the point where you will know, or at least get a pretty clear sense of, whether things will become conflictual. Ideally they will not and your employer, while possibly disappointed, will express acceptance of your leaving and offer to cooperate in the process. Here you should also offer cooperation, and that can take many forms depending on the needs of the employer. If these discussions can reach a deal that is agreeable to both sides that deal should be put in writing. The written agreement should be fair minded and offer guarantees to both sides. In other words it should be made in good faith.

Fourth, if the discussions in step three do not lead to an agreement, if the tone is hostile, and/or if the employer resorts to threats, then you need to examine the possibilities for unilateral resignation. Ideally you find an LCL 38 cause for your resignation. It is only if you cannot find an LCL 38 cause, or perhaps if you are still in a one month probationary period, that you should consider a written LCL 37 resignation. In writing the resignation letter you need to be very careful to cite the law and make appropriate demands for documents, funds owed, and, if applicable, insurance repayment. You also need to take care in how the resignation/demand letter is delivered. This is all because this letter will form an important part of the evidence that structures your case moving forward. And before you send that letter you should have a plan for how you will handle your labor dispute.

Fifth, here you will either be following your labor dispute plan, mentioned just above in step four, or the agreement that you made with the employer, mentioned in step three. 

If you didn’t read this essay soon enough and were in a hurry with the Fast Mail you may find yourself rewriting your resignation from the Wreck of The Old 37 while thinking: "Paycheck, you may be a thing of the past.” 

References

Vernon Dalhart. Wreck of The Old 97

https://www.youtube.com/watch?v=dr3afP13L3k&ab_channel=cdbpdx

Johnny Paycheck. Take This Job and Shove It

https://www.youtube.com/watch?v=EPrSVkTRb24&ab_channel=Sorage55

David Allan Coe. Take This Job and Shove It Too

https://www.youtube.com/watch?v=OYQIrz-1LSo&ab_channel=chestnutmtnhillbilly

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

David Allan Coe. If That Ain't Country

https://www.youtube.com/watch?v=OhEHB0a7Uyg&ab_channel=bentleyks6

David Allan Coe. Spotlight

https://www.youtube.com/watch?v=MIZdDMIQM10&ab_channel=thewinner

Bonus Tracks I:  Key to the intermusicotextual close of  David Allen Coe’s If That Ain't Country

The Carter Family. I’m Thinking Tonight of My Blue Eyes

https://www.youtube.com/watch?v=q4tBmpRdZ94&ab_channel=bigjaw1

Roy Acuff. Great Speckled Bird

https://www.youtube.com/watch?v=rRbfQrKcVjg&ab_channel=AlexO

Hank Thompson. The Wild Side Of Life

https://www.youtube.com/watch?v=NFXB5cJDmp8&ab_channel=FromTheBasement

Kitty Wells. It Wasn't God Who Made Honky Tonk Angels

https://www.youtube.com/watch?v=tKleTa94dC8&ab_channel=manbehindthescreen

Bouns Tracks II:  The Past and Another Country

John Ferguson. Thrills That I Can't Forget

https://www.youtube.com/watch?v=lWAdasjovaA&ab_channel=TroyCarlyle

Los Invasores de Nuevo León. Mi Casa Nueva

https://www.youtube.com/watch?v=uuZyR_dkZQc&ab_channel=MexTunes

Recommended Reading

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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].

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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.

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