Foreign Employees in Shanghai Shall Learn to Protect Themselves

Recently, I took a labor arbitration case of an alien suing a local WOFE.

During this case, I got the chance to talk to labor arbitrator to learn more. I have to say that the legal practice is not so optimistic for foreign employees.

There are lots of legal risks when a foreigner chooses to work in China, especially Shanghai.

1. Arbitration court respects the free will of foreign employee and local employer, which means what the employee and employer concluded in the labor contract are the most important. If the labor contract cannot protect the alien, then the labor law may also not. Certain labor rules are complusive in order to protect the employee, however these complusive rules may only  applied to Chinese citizens. For example, the termination rules. The employer could set forth any kind of rules to terminating an alien, such as 30 days notice in advance. But the labor law does not allow employer to stipulate these rules to terminate a chinese citizens at its will.

Thus, the protection for alien working in China is not enough, foreign employee shall learn to protect themselves by labor contract.

2. The labor relation may be denied if the employer on your work permit is different from the employer that actually sign labor contract with you. When you sue the employer on the work permit, you don’t have real labor relation with this company and you cannot prove. Furthermore, this company may be a ghost company, don’t even have a real address. When you sue the real employer, they may say you’re not working for them due to they cannot apply the work permit for you.

 

My case may get a good result even the employer is not the employer on the work permit. My client has a cautious personality. She puts every detail agreed by both parites in the labor contract. Do you have a thorough labor contract to sign?

Posted in Contents, Labour Disputes, Termination and Revoke of the Labour Contract | Comments Off

Paternity Leave

Someone is asking about the Paternity leave. I have to say, paternity leave and extra maternity leave are only happened to Chinese citizen.

Paternity leave is only stipulated in local regulations of population and family planning to encourage Chinese citizen to get marry later and give birth later.

The benefits is different in different areas, in Shanghai, paternity leave is 3 days, but in Guang Dong, there is no paternity leave.

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Population and Family Planning Law of the People’s Republic of China

Jiang Zemin

President of the People’s Republic of China

December 29, 2001

Population and Family Planning Law of the People’s Republic of China

(Adopted at the 25th Meeting of the Standing Committee of the Ninth National People’s Congress on December 29, 2001) CONTINUE READING…

Posted in Regulations and Rules, Working Hours, Rest and Vacation | Comments Off

Social Insurance Law of the People’s Republic of China

(Adopted at the 17th meeting of the Standing Committee of the Eleventh National People’s Congress on October 28, 2010)

Contents

Chapter 1 General Provisions

Chapter 2 Basic Pension Insurance

Chapter 3 Basic Medical Insurance

Chapter 4 Work-related Injury Insurance

Chapter 5 Unemployment Insurance

Chapter 6 Maternity Insurance

Chapter 7 Collection and Payment of Social Insurance Premiums

Chapter 8 Social Insurance Funds

Chapter 9 Handling of Social Insurance

Chapter 10 Supervision of Social Insurance

Chapter 11 Legal Liabilities

Chapter 12 Supplementary Provisions

Chapter 1 General Provisions CONTINUE READING…

Posted in Insurance, Regulations and Rules | Comments Off

The Consequence of Breaking the Rules of Probation Time

According to Article 83 of  Labor Contract Law of the People’s Republic of China   ” If any employer stipulates the probation period with any worker in violations of this Law, it shall be ordered to make a correction by the labor administration department. If the illegally stipulated probation has been performed, the worker shall be paid compensation by the employer in light of the time worked on probation beyond the statutory probation period, at the rate of the worker’S monthly salary after probation.”

According to Labour contract Law, under the following circumstances, the employer should bear the compensation:

  • the agreed probation time is longer than the statutory length and it has been performed.

The rules of probation time are compulsive, there are consequences when the company breaks them.For example, if the employee and employer conclude a 1 year labour contract, the probation time of the employee should be no longer than 2 months. If the labour contract between them stipulate 4 months probation time, the employee could report it to labour administrative department; if the wrongful probation time is already performed, the employee could get a two month salary as compensation.

  • An employer stipulates more than one  probation period with a same worker and the probation time has been performed.
  • Probation period is stipulated in a labor contract with a period to complete the prescribed work or a labor contract with a fixed period of less than three months and it has been performed.
Posted in Probation Period | Comments Off

Overtime Salary

1. Official Holiday

Employees who work on official holiday could have triple salary, and the employer could not replace the triple salary with complementary rests.

2. Double Cease

Employees who work on double cease could have complementary rests. If the employees refuse to have complementary rests, the employer has to pay double salary.

3. Annual Leave

The chinese employer may offer longer annual leave to foreign employee, due to the foreigners are accustomed to the holiday system of their own country. It is lawful when employee benefits package is  better than compulsive law standard. Thus, extra annual leave is legal.

Usually, the employees could have triple salary than normal working day when they didn’t take the annual leave.

However, could they also have triple salary for working during the extra annual leave?

For example, the labor law said employee  A could have 5 days annual leave, but the employer offer 7 days, could the employee A asks triple salary for extra 2 days? The law is not certain about it. It’s better stipulate the compensation rules in labor contract for extra annual leave.

4.Normal Working Day

Employees who work extra time on working days could have complementary rests. If the employees refuse to have complementary rests, the employer has to pay 150% salary.

Posted in Wages, Working Hours, Rest and Vacation | Comments Off

Maternity Leave of Foreign Women in China (Q&A)

 – How many percent of my salary should I get for the maternity leave and during how long?
Every employee in China is entitled to maternity leave. However, about the salary of maternity leave, it depends.
In Shanghai, you may get nothing, in Guang Dong, you may get full salary. Labor law practice is totally different in different areas.
Maternity leave is 98 days, usually 15 days before giving birth and 83 days after it.
 – Who is paying it?
If you don’t have social insurance, your employer shall pay for it.
 – Is it correct that if i am older than 26 years old I can have one month more of maternity leave?
No, this is part of one child policy which only apply to chinese people.
 – Is it correct that I can have 6 more months off with 80% of my salary and my employer will take me when I am back?
I guess you talk about suckling leave, it’s about 6 months and a half, however, it’s not compulsive, which means you could apply for it, but your employer could refuse.
Posted in Working Hours, Rest and Vacation | Comments Off

Social Insurance in Shanghai

In this post, social insurances indicates  employment related social insurances only. (There are also other social insurances in China, which may be related to farmers or students.)

1. Defination of Social Insurance System

It is a social security system built by compulsive law to protect labourer when they are getting old, sick, unemployed, etc.

2. Types of Social insurance

Five types:  employment injury insurance, basic endowment  insurance, medical  insurance, unemployed insurance and maternity insurance.

3. Types of Workers

In Shanghai, with “hu kou”(户口), the policy divides workers into  local workers and migrant worker, and migrant worker could subdivide into City&Town migrant worker and rural migrant worker.

All kinds of  workers has at least three kinds of social insurance-employment injury insurance,  endowment insurance and medical insurance. Local worker and City & town migrant workers (16-45 years old ) may have other 2 kinds of social insurances that mentioned above.

4.The difference of different types of workers when paying social insurance

The Caculation of “Social insurance” could  be applied to the fomula:Payment base* percentage (provided by local government)

(1)Comprehensive Insurance

It’s a type of social insurance for migrant workers, especially for rural migrant workers. The employer shall pay all of it.

Payment base of Comprehensive Insurance=Shanghai employees’ average monthly income of last year * 60%=3896RMB(average monthly salary of year 2010)*60%=2338RMB

Percentage=12.5%

Thus, the comprehensive insurance =2338RMB*12.5%=293RMB

(2) City Social Insurance

Except for rural migrant workers, other kinds of worker may be covered by City social insurance or town social insurance. If the company is registered at a town of Shanghai, then the workers of it could only have town social insurance; and if the company is registered at downtown, then the workers shall have city social insurance.

The way of caculation:

First of all, payment base of city social insurance shall be limited to a range of :

Shanghai employees’ average monthly income of last year * 60%  ~Shanghai employees’  average monthly income of last year* 300%

( It is from 2338 RMB to 11688RMB between  April 1st 2011 and March 31st 2012  )

Secondly, Payment base shall also be equal to your actual average monthly income of last year

Thirdly, following are the percentage employer and employee shall pay for city social insurance.

Social Insurance Paid by Employer Paid by employee
Endowment Insurance 22% 8%
Medical Insurance 12% 2%
Unemployed Insurance 2% 1%
Maternity Insurance 0.5%  -
Employment Injury Insurance  0.5%  -

(3)Town Social Insurance

Payment base=Shanghai employees’ average monthly income of last year * 60%=2338RMB

Percentage=25%( Employer 25%, Employee o%)

Posted in Insurance | 1 Comment »

Prevent Legal Risks During Recruitment

Someone emailed me to ask about the recruitment, then I realise I need to write something about it, because this is a very important part before concluding a labour contract, lots of potential legal risks, but few rules or regulations.

Risk 1: Vague Recruitment Requirements on Recruitment Advertisement

          Recruitment Requirements are something the employer could count on when it wants to fire an employee during probation period. Thus, the employer needs:

          1) to detail the common requirements on recruitment ad, such as good health, honest, education, working experience, working time, etc.

          2) to detail the specific requirements of the position, such as certain certificate or certain working experience.

         3) let the interviewee sign the “recruitment requirement” and keep it.

Risk 2: Providing Fake Information

        Providing fake information is a dangerous thing to do, no matter for employer or employee, which may lead to invalidation of the labour contract and compensation. Thus, as an employer, you shall:

       1) print the resume and make sure the interviewee sign on it;

       2) prepare a registration form to let the interviewee fill it in. The form may include the basic personal information and  the information you want to know from the interviewee, but it is not showed on resume.

       3) tell the truth of your company, for example, don’t exaggerate the scale of your company;

Risk 3: Discrimination

        No discrimination about age, gender, nation, deformity, non infectious virus carrirer…

       Even you have discrimination about something, don’t show it on your recruitment ad or your interview, otherwise, you might be sued for it.

Risk 4:  Didn’t Do Health Test

          If you hire someone with some disease, you may have to pay the sick leave wage  for their treatment period.

         However, pregany or non infectious virus carrier shall not be considered as not healthy.

Risk 5: Forget to Promulgate Employee handbook

        How to prove you have promulgated your employee handbook? Prepare a signature page at the end of employee handbook and let the employee sign on it.

What’s the purpose of letting the interviewee or employee sign on the documents mentioned above?

Saving the evidence, you shall know the employer is liable for providing evidences  in China when labour disputes arising.

Posted in Recruitment | Comments Off

Something You Should Know about Hiring and Firing an Ayi

  • Is hiring or firing an Ayi (Someone who do your cleaning, cooking or baby sitting)  bound to Labour Rules?

            No,  the relation between the family and its Ayi is not a labour relation. CONTINUE READING…

Posted in Basic Concepts, Contents | Comments Off
 

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