Employment Law in China

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CEO is also the legal representative of your scivolo gonfiabile company, so cancelling the labor contract with CEO is more complicated.

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  Obstacle Course Bounce House 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?

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.

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…

(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…

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 Inflatable Obstacle Course 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.

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 Insane Inflatable 5k 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.

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 Deluxe Mechanical Bull 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 east jump 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.

(3)Town Social Insurance

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

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