As 2019 comes to an end, we want the best for our expat friends living here in Beijing, a city we’ve come to love and call our home. But before we jet back to our home countries, there are currently some of us dealing with less than savory labor disputes with employers.
As in any country around the world, there are companies in Beijing that will constantly try to nickel and dime their employees out of salary and benefits, banking on the notion that most expats are unfamiliar with Chinese labor laws.
Recently an expat reached out to inquire about his rights stating that the school he’s employed with has not paid his salary in full nor has the apartment, as promised in his contract, been furnished. He’s currently living without a kitchen or any furniture in the “ready to move in” apartment that was stated in his contract. He was in a bind. “Do I write a resignation letter to end the contract immediately or do I just tell the employer to hand in my release letter because I can’t work for him anymore?”
According to Josh Gordon, Managing Partner at Reliant Consulting, a legal employee who has not been paid on time has the right to resign and ask for severance based on the standard of the law.
Article 38
In the case of any of the following circumstances occurring to an employer, workers may discharge the labor contract:
(1) It fails to provide labor protection or work conditions as stipulated in the labor contract;
(2) It fails to pay the full amount of remunerations in a timely manner;
(3) It fails to pay social security premiums for the workers according to law;
(4) The bylaws thereof are inconsistent with any law or regulation and impair the rights and interests of the workers;
(5) A labor contract is invalid due to the circumstance referred to in Paragraph one of Article 26 of this Law; or
(6) Any other circumstance as prescribed by any law or administrative regulation under which the labor contract may be discharged.Where any worker is forced to work by violence, by threat or by illegally limiting his personal freedom, or is forced to perform dangerous operations which may endanger his personal safety under illicit commands or forces of the employer, the worker may immediately discharge the labor contract without informing the employer in advance.
Article 46
In the case of any of the following circumstances, employers shall make an economic compensation to the workers:
(1) Any worker discharges the labor contract according to Article 38 of this Law;
(2) Any employer intends to discharge the labor contract with the workers according to Article 36 of this Law and reaches consensus with the workers through consultations;
(3) The employer discharges the labor contract pursuant to Article 40 of this Law;
(4) The employer discharges the labor contract subject to the first Paragraph of Article 41 of this Law;
(5) The labor contract is a contract with a fixed period, which is terminated in accordance with Paragraph (1) of Article 44 of this Law, except that the worker disagrees to renew the contract even though the conditions offered by the employer are the same as or better than those stipulated in the current contract;
(6) The labor contract is terminated in accordance with Subparagraphs (4) and (5) of Article 44 of this Law; or
(7) Other circumstances as prescribed by laws and administrative regulations.
Article 47
The economic compensation shall be paid to workers according to the number of years he has worked for the employer by the rate of one month’s salary for each full year he worked. Any period of above six months but less than one year shall be deemed as one year. The economic compensations that are paid to a worker for any period of less than six months shall be one-half of his monthly salary.If the monthly salary of a worker is three times higher than the average monthly salary of workers as announced last year by the people’s government at the municipal level directly under the central government or at the level of districted city where the entity is situated, the rate for the economic compensations paid to him shall be three times the average monthly salary of workers and may not exceed 12 years of work.
Monthly salary as mentioned in this Article means the average monthly salary of the worker for the 12 months before the discharge or termination of the labor contract thereof.
Full employment rights can be found here.
Gordon’s advice – write the resignation letter and explain based on the provisions of law along with why you are quitting with no notice, and why you are owed severance.
“You might approach your employer and negotiate. And if that doesn’t work you could take the employer to labor arbitration (劳动仲裁) in the district where the employing company is registered to get release documents and severance (if owed). Arbitration is free, but you need someone with good Chinese to help if your own Chinese is not that good. Before going to arbitration you can negotiate with the employer. In negotiations be polite but firm and give the employer a choice between going to arbitration and just settling privately and signing a mutual termination agreement. You need to give the employer at least two options. One is your maximal claim and another gives them some advantage in exchange for which you also give the employer something they want. That could be paying lower severance or staying on the job longer. It could also be or include things like not reporting them for other kinds of violation for example not enrolling people in social insurance, or running a school without a license, or hiring teachers and listing them as managers.
To make any of this work, you need to show the employer that (1) the employer will lose the labor arbitration case, i.e. the law is on the employee’s side; and (2) the employee has the resources (time, language skills, money, ability to stay in the country) to follow up on a labor arbitration claim and to do any other sort of non-compliance reporting. That might mean sending some of the provision of the law to the employer in Chinese or writing a letter that outlines the case and cites the law,” says Gordon. “You can quit without advance notice because you are not paid on time or in full (LCL Art 38.2). You need to get your release documents within 15 days (LCL Artt. 50, 89). You should get severance pay (LCL Art 46) in an amount calculated by using LCL Art 47.
“If your employer has any other compliance violations that you know about (no social insurance, improper job titles, running a school without a license to run a school, not paying taxes), you can report him to the local authorities – not the PSB usually – for each one of those. So, tax to the tax bureau etc.
But to make him/her believe that you can and will do any of this you probably need a Chinese-speaking (and -reading, and -writing) friend. You probably also need to show him/her the provisions of law in Chinese, and convince him/her that you can stay in the country and go to labor arbitration if he/she doesn’t settle now.”
When faced with a difficult employment situation, it’s important to remember that you’re not alone and that China’s employment law is on your side – created to protect the rights of locals and expats alike.
Each case is different, but in general, it’s good to know what your rights are and what you’re legally allowed to demand from an employer who’s trying to snake their way out of paying you what you deserve.
To get in touch with Gordon and Reliant Consulting, message them on WeChat at Reliant-CN or contact Gordon directly at josh@reliant-cn.com.
Source: Josh Gordon
Photos: unsplash
