China’s employment law is a law that confuses many foreign investors or foreign employees in China. They feel that the legal provisions of the employment law are inconsistent with court decisions, and a same situation often leads to an opposite result. In my two decades as a Chinese lawyer and part-time labor arbitrator, I have often felt this confusion.
Answer: Assignment contract is a type of employment contract newly stipulated in the Employment Contract Law (not in the Labor Law), which is applicable to the completion of specific work task for a period of time. The purpose is to facilitate the employer to flexibly employ personnel for specific work projects. The law does notRead more about 28.Is my employer legal to sign an assignment contract with me?[…]
Answer: Article 82 of the Employment Contract Law stipulates that employer must sign a written employment contract with an employee within one month from the commencement date of the employment or from the date of a permanent employment contract is due to sign. In case of violation of this provision, the employer shall pay theRead more about 29.How does the law stipulate the obligation of employers to arrange for new employees to sign written employment contracts?[…]
Answer: The Employment Contract Law imposes punitive double-wage damages on those employer who fail to sign employment contracts with their employees due to the employer’s reasons. If an employee claims for the damages, the employer shall, in principle, pay the employee double-wage damages on a monthly or daily basis for the period during which theRead more about 30.How to calculate double-wage damages in the absence of a written employment contract?[…]
Answer: The period for computing double-wage damages is the same as that during which employers illegally fail to sign written employment contracts with their employees. Although the former is determined according to the latter, it is affected by three factors: the first is the type of liability for not signing an employment contract (including theRead more about 31.How do I calculate the compensation period for double-wage damages in the absence of a written employment contract?[…]
Answer: Employers who ought to have signed written employment contracts with their employees but did not are liable to pay the employees double-wage damages theoretically. However, the employer’s liability for compensation is restricted by the limitation of arbitration in practice (please refer to Is it too late for me to claim the double-wage damages?). ThereRead more about 32.What are the exceptions to employers¡¯ obligation for double-wage damages?[…]
Answer: The Labor Dispute Mediation and Arbitration Law stipulates that the time limit for filing employment arbitration is one year, which is the so-called limitation of labor dispute arbitration. That is to say, the period for which employees may claim double-wage damages should be one year before the date of applying for employment arbitration. TheRead more about 33.Is it too late for me to claim the double-wage damages?[…]
Answer: It is illegal for the employer to do so. Article 9 of the Employment Contract Law stipulates that employers shall not collect deposits or retain employees’ certificates (including professional qualification certificates). Article 84 stipulates that if the employer violates the provisions, it must return the deposit and certificate to the worker. The labor administrativeRead more about 34.Is it legal for the employer to collect my deposit and retain my certificate?[…]
Answer: Article 26 of the Employment Contract Law stipulates the circumstances for which an employment contract is invalid. If either party to the employment contract commits fraud, coercion, or vulnerability-advantage-taking, so that the other party signs the employment contract against its true intention, the employment contract shall be invalid. Any party can legally dissolve theRead more about 44.Is the employment contract I signed invalid?[…]
Answer: The Employment Contract Law set a new rule stipulating that if two consecutive fixed-term contracts have been signed and fulfilled, and both parties wish to continue the employment and the employee requests a permanent contract, the employer is obligated to sign a permanent employment contract with the employee.This rule, however, has led to conflictingRead more about 43.Should a permanent employment contract be signed after two fixed-term employment contracts?[…]
Answer: A permanent employment contract does not have a termination deadline, providing the highest employment security for employees. Employers are prohibited from terminating or dissolving employment relationships without legal reasons. According to the Employment Contract Law, an employer must sign a permanent employment contract with an employee under the following circumstances: The first circumstance isRead more about 42.Under what circumstances must employers sign permanent employment contracts with employees?[…]
