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The Top Six Questions Foreign Employees May Have
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As a foreigner working in China, you may encounter all kinds of legal issues. We are here in presenting the top six frequently asked questions and provide answers below:
1. Q: Employees can’t terminate their employment contract, otherwise they have to pay a penalty, correct?A：Incorrect, you can terminate the employment contract legally by sending a 30 day’s written notice without facing any penalty.According to Article 37 of the《Labor Contract Law of the PRC》: “An employee may terminate their employment contract if he/she informs the employer in writing 30 days in advance. During the probation period, an employee may terminate their employment contract if he/she informs the employer three days in advance.”Furthermore, according to related laws, the employer can’t ask employees to pay any penalty, unless:1. the employer has paid training fee for employee and the employee wants to leave before the agreed employment term is finished. Or2. the employee failed to abide by a non-compete agreement.However, if the employment contract provides that the employee has to pay any direct loss the employer suffers because of their earlier termination, some of the arbitrators or judges may claim the provisions are reasonable and would agree in favor of the employer, such as the recruitment fee, visa fee, etc.
2. Q: My employer refuse to provide me with the release letter as they claim they won’t accept my resignation.A: Incorrect. Though the employees are required to inform the employer of their intention to resign in writing 30 days in advance, they don’t need approval from the employer to resign.On the other side, according to Article 50 of the 《Labor Contract Law of the PRC》: “When terminating an employment contract, the employer shall issue a certification for the discharge or termination of the employment contract simultaneously and shall complete the procedures for the transfer of the worker's archives and social security relationship within 15 days.”
Article 89 of the《Labor Contract Law of the PRC》also specifies: “Where any employer is in violation of this Law because of failing to issue a certificate in written form for the discharge or termination of an employment contract to any employee, the labor administrative department shall order the employer to make a correction. If any damage occurs to the employee, the employer shall bear the liability for compensation.”In conclusion, it’s the employer’s statutory duty to provide the employees release letters and help to cancel their work permits, so they can apply for new work permits in time.3. Q: My employer told me that I can’t participate in the social security plan, as I am a foreigner. The social security plan is only available to Chinese people.A: It’s incorrect. Foreigners are required to participate in the social security plan, as long as they are working legally in China.Article 72 of the 《Labor Law of the PRC》specifies: “The employers and employees must participate in social insurance and pay social insurance premiums in accordance with the law.”In addition, Article 4 of 《Interim Measures for the Participation in Social Insurance of Foreigners Employed in China》specifies: “An employer hiring foreigners shall conduct social insurance registration for the foreigners concerned within 30 days from the date of completing the formalities for employment certificates for them.”
4. Q: The employer said they will hold my passport or work permit for management purposes, is it ok?A: No, it’s not OK at all, either the passport or the work permit is your personal identity card, no one is entitled to keep them. Article 9 of the《Labor Contract Law of the PRC》has made it very clear: “Where an employee is hired, the employer may not detain the identity card or other certificates thereof, nor may it require a guaranty or collect property from the worker under any other reason.”
5. Q: How can I make sure my employer has paid individual income tax for me properly?A: According to related tax laws, employers are the withholding agents for individual income tax of their employees. It means that the employers shall deduct the individual income tax in line with the law before they pay salary (after tax) to the employees. The good thing is, each taxpayer can check their tax record at the local tax bureau. You may take your original passport and pay a visit to the tax bureau in the district where your employer is located in and have your tax record printed out.
6. Q: I find that many of the provisions in my employment contract are not in line with the labor laws, and the employer said the signed contract is binding. What can I do?A: Generally speaking, a signed contract is binding, but this necessitates that its provisions are legal. So, if the provisions in your employment contract are illegal or not in line with related laws, the provisions or even the employment contract is not valid, thus is not binding at all.However, despite the fact that the provisions in the labor laws are very detailed, still there are some options for both of the party. So, our suggestion is: read through the employment contract before you sign it and make sure you understand each provision and make sure each of them is in line with the applicable labor laws.
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