Chinese labor law – A users guide – Know your rights and defend them!
To all teachers in China: if you are getting ready to leave in a few weeks, or you are planning to return for another year, or you are contracted to start a new position in late July/August......
Please understand that Chinese Labor Law very strongly favors the employee. Some Chinese schools like to use the law the intimidate employees, and play on foreign teachers' misconceptions lack of knowledge about the law. However, employees claims are favored by the courts in the largest majority of cases. Do not be intimidated by the process. If you have good legal counsel, and patience, and you have a strong case, you will very likely prevail with the Arbitrator, and subsequent rounds of court hearings.
Like any other employer in China, schools are required to follow Chinese Labor Law. Several bad schools (HIKSVS, Tianjin; Wellington, Shanghai) in China have been discussed extensively on TES in the last few months, and there are many more reports on ISR (Wahaha; Haileybury; Guiyang Concord College Sino-Canadian, etc.).
If you know your rights, you can take action to protect them. Chinese Labor Law is quite robust and written to protect the employee.
These things are required according to the law.
1. Employees must have an employment contract, and be given a copy of their counter signed employment contract.
a. To be binding for a foreign employee, the contract must be in English.
b. This employment contract, in Chinese, must be submitted to the Bureau of Foreign Experts as part of the documentation required to obtain a work permit.
2. Foreign employees must receive their work permit.
3. If a company has a staff handbook, it must be provided to employees.
a. This needs to be provided through a two step 'democratization' process.
b. The staff handbook is not valid in the court if an employee cannot read the language (e.g. Chinese language handbook for non-Chinese speakers).
4. Employees must receive a payroll slip at time of payment.
When leaving the school.
1. Employers must provide the employee with a salary certificate
2. Employers must provide the employee with a leaving certificate
3. Employers must provide a recommendation letter for foreign staff
a. If the school does not provide this letter, the teacher can apply to the Labor Arbitrator to get this letter from the school.
Employees will be required to provide these documents to their new employer if moving to a different school in China.
Employment contracts
1. The wording of employment contracts is very critical for foreign staff. It is suggested that a lawyer review the contract for staff prior to signing.
2. Chinese law protects employees contract rights. The burden of proof lies entirely on the employer and labor arbitration is almost free of charge for employees in China.
3. When schools do not follow the law, contract terminations can be disputed as a ‘breach of contract’ with the Labor Arbitrator.
4. When schools do not have well written contracts and staff handbooks, it is very difficult for schools to defend their illegal actions to the Arbitrator.
Employee rights during ‘illegal’ termination disputes
1. The school is required to maintain accommodation and other contract benefits (e.g. medical coverage, utilities) when the teacher files a dispute with the Labor Arbitrator
2. The school is not allowed to cancel the employee’s work permit.
3. Teachers are advised to file their dispute immediately.
a. This can be facilitated by establishing a ready file of the required documentation on commencement of work in China.
b. Competent and fair legal counsel can be found by networking with local Chinese teaching colleagues, or by contacting the OP.
The legal process – background, context
1. All documentation will need to be translated into Chinese with a professional translation service (offer letters, contract, passport, work permit, residence permit, other correspondence)
a. It is very strongly recommended that teachers create a file with all of these documents as soon as they commence work with any school. This file should be updated with any subsequent HR communications.
b. Keep copies of electronic communications in location that is separate from the school's IT system. The school will most likely restrict access to the school email system and computers if an teacher is terminated.
c. Chinese courts will accept sound recordings. Teachers are encouraged to record meetings or conversations if they think the school is breaking the law.
2. All court hearings and outcomes will be in conducted in the Chinese language.
3. It is strongly recommended that foreign teachers engage the services of a competent employment and/or contract lawyer with experience in the local jurisdiction.
4. Lawyers fees (10,000 RMB and higher) will be based on the case details for the Arbitration Dispute and subsequent court hearings if either party appeals the arbitrator’s decision.
The legal process – Stages of litigation
Stage 1: Labor Arbitrator
Almost all employee-employer disputes will be initially filed with the Arbitrator. If not completed in the first hearing (3 hours), the Arbitrator will set a second hearing date to review additional evidence and argument.
Stage 2: District Court
If either party appeals the Arbitration decision, the case will move to the District Court. Initially, the judge may attempt to drive the parties to settlement based on the Arbitration hearing. If unsuccessful, the judge will reset the terms of the case and hear the case. If not completed in one hearing, the judge will set a second date. The judge has the option to send the case back to the Arbitrator, or to deliver the courts decision.
Stage 3: High Court
If either party appeals the District Court, the case will move to the High Court. In general, the High Court upholds the District Court decision. The High Court decision is final. There is no further appeal.
The legal process – Timeframes for each stage
1. Timelines
a. While disputes and appeals need to be heard within national timelines, actual timelines vary between local districts.
2. Using Tianjin as an example (days are work days) –
1. Labor Arbitration Court
a. Time from filing hearing: 30-45 days
b. Time for a follow-up hearing: 7 days
c. Time to issue a decision: 14-28 days
d. Time between decision and filing appeal: 15 days
2. District Court
a. Time between filing appeal and Court hearing: 30-90 days
b. Time for a follow-up hearing if Judge requests: 7-14 days
c. Time for the Judge to issue a decision: 15-60 days
d. Time between decision and filing appeal: 15 days
3. High Court
a. Time between filing appeal and High Court hearing: 90 days
b. Time for a follow-up hearing if the Judge requests: 7-28 days
c. Time of the Judge to issue a decision: <30 days
4. This decision is final, binding on all parties.
Enforcement of litigation outcomes
a. The school is required to abide by the direction of the court
b. If the school does not comply with the court’s decision, the court has the authority to deduct the settlement payment from the school’s bank account, to make the payment to the wronged party
c. Bad owners can be punished in a number of additional ways
1. For example, the court has the authority to withdraw an individual’s freedom of travel rights, preventing such individuals from using airlines or railways within China.
2. The court also has the authority to direct the Entry-Exit Administration to withdraw exit rights for such individuals, thereby preventing them from leaving China.
Additional avenues for protection of teacher’s rights
a. Illegal HR practice generally creates risks for investigation of bad schools by several other agencies
1. Labor Security Administration (LSA)
2. Bureau of Foreign Experts (BFE)
3. Social Insurance Administration (SIA)
b. Employment lawyers should be able to facilitate the filing of complaints with each of these agencies.
a. Complaints with the LSA and BFEE can be filed using the national hotline.
b. Complaints with the SIA will need to be filed with the teacher physically present.
Prosecution of legal claims
1. It is best to file disputes or claims while still in the country, when the work permit and residence permit are still current.
2. Lawyers will continue to prosecute the case once the teacher has left the country.
a. This requires the establishment of a Power of Attorney (PoA) agreement between the teacher and legal counsel.
b. A PoA is signed and executed in the local District Notary’s Office, and requires hiring an official translator to mediate the conversations.