Basics of Chinese Labor Law That Protect Us? Please Debate Me!

Hello Everyone,

I have been talking to Edgar Chan ("Edgar Law in a Minute"). I also read his articles.

Even after ten years in China, here is what I have learned.

Please, debate me and even prove me wrong with evidence.

1. Everyone who works in China is protected under Chinese Labor Law. This even includes us as expatriate workers.

2. The Chinese Labor Law will beat out anything on a contract if things ever go to court.

This includes even a signed contract.

3. Although the law is broken often, employment law states that it is very hard to terminate a worker, even for poor performance. I estimate that up to 95% of terminations and layoffs are not following the law.

4. In practice, most employers use employees to sign pieces of paper to terminate the contract. Never sign anything, unless it is spoken to a lawyer.

5. Probation is 60 days, at 80% of normal salary. Either side can end employment without penalty. No "visa fee breach."

6. In truth, all workers are entitled to the benefits. This includes:

a. Chinese social insurance (medical care, life insurance)
b. Severance pay (one month for every year worked, rounded up)
c. Pregnancy leave
d. There must be other benefits I am thinking of

7. The law entitles you to keep working there forever. If a worker is ever laid off or terminated, he is entitled to severance pay.

Most employers trick employees into signing resignation papers, on false pretexts such as saving their visa.

8. Essentially, the rule is the same:

a. Always realize we are protected under Chinese labor law
b. Refrain from doing the allowable terminations (absent without leave, workplace violence, signing resignation)
c. Never sign anything unless a lawyer says it is a good idea. This includes performance reports, resignation papers, etc. It just means you cannot collect your due severance, etc.
d. Always have a lawyer on hand. They are often only 20,000 RMB or so for a court case, and ensure rights.
e. Chinese employers short-change often. Watch out for tactics designed to get you to work but not pay you.

All very correct.  Just be aware that Shanghai has some unique exemptions to some parts of national labor law.

Also, be aware that in some cases, the person handling a complaint at the labor bureau or an arbitrator may not understand all the finer points of worker protection laws.  In those cases (the good news is that this is becoming more and more rare), the complaint may have to be escalated to the courts.

The main problem in China is that many workers are not familiar with the incredibly good protections offered by labor laws.  Quite a few small business owners may also not know them (and a certain number of businesses of all sized take advantage of their workers not knowing the laws).  Better education about labor laws and how to file labor bureau complaints would go a long way towards preventing violations.

In fact, I was talking to American co-workers today.

They said:

1. It all varies by province.

2. That the Entry-Exit Bureau people are the ones to ask. They give the real answer, and have no vested interest in giving poor answers.

In terms of labor laws, the Entry Exit Bureau just needs enough items in order to give you a res permit when you start.

All the rules over what labor-contract items are valid or enforcing a contact are via the Labor Bureau, and the standard parts of National Law are the same throught the Mainland, except for the special exemptions granted to Shanghai.

Individual companies will tell you all sorts of different things, but (except for Shanghai), no company, city, or province should try to uphold any contract provision that conflicts with National Labor Law.  Yes, your co-workers may have experienced some unusual contract terms and company policies, but (except for Shanghai) anything in conflict with National Labor Law is automatically not valid, and certain actions against against the Labor Law can get them some very expensive penalties - but only if the worker provides documentation of the violation to the local Labor Bureau.  In the rare case where the local Labor Bureau mistakenly believes that certain national rules don't apply in the province or to foreigners, a call to Edgar or some other qualified lawyer may be needed.

Think of the USA.  States may have different minimum wages, but all MUST be at least equal to the national wage.  A contract could be written saying a worker agrees to accept less than the national minimum wage, but that contract point would be invalid in any of the 50 states.

Thanks,

1. I am thinking about reporting my old employers. Among the wrong things I saw were:

a. Other co-workers were from Russia, Ukraine, and Central and South America. Can that even be legal, at a high school?


b. Every year, when people get laid off, they say "sign these papers that say you resign, or you lose your visa."

c. Unpaid severance, medical leave, unpaid overtime, etc.

2. Where to report them, in Beijing?

Obviously, native English speakers are greatly preferred for jobs involving English instruction, but you would need to ask Edgar if that's an absolute law or not.

Many companies commit labor violations against workers all over the world, even in China.  Many employees don't know what the law says or don't know where and how to complain.  When it happens for ending a contract, the first thing to do is to visit the local labor bureau and ask a few questions about the situation - BEFORE you sign anything.  Once you sign, your case can become far more complicated. If necessary, pretend you are about to vomit and run out of the room.  Of course, you can also contact Edgar or another lawyer.  Unlike the USA, quite a few lawyers will provide helpul info during a free consultation instead of automatically saying "You need to hire me now!" during a free consultation.