10 things you didn’t know about China Labor Law
Chinese Labor Law has undergone changes in the last few decades. In 1995, a comprehensive description of employer/worker obligations and rights was created. In 2008, changes were made to rules regarding collective bargaining. In February, 2016, an even newer change was made: foreign students who graduate in China will be allowed to work there.
For those who plan to work in China after graduation, there a few things that you should know:
- Workers need to be at least 18 years old, and in good health.
- Should have professional skills that will make employing them of benefit to Chinese industry
- Cannot have any criminal record.
- Must have a clearly defined employer.
- Must have a valid passport or other travel document in lieu of a passport.
On the other side of that, there are certain people who cannot work in China, or will need special permission:
- Foreigners who do not have residence permits must have special permission from the Chinese Ministry of Human Resources and Social Security.
- Foreigners who are undergraduates or interns also will need special permission to hold jobs other than those specified by an internship.
- Families of people who have work permits must obtain their own work permits separate from that held by the primary worker.
To work in China, foreigners need to be invited by an employer who will deal with many of the necessary permits. The employer will need to take a completed contract, along with the workers travel documentation, to the local labor administration. Work permits are often issued only for a specific area within which where the employee will be working.
Workers in China, both native and foreign, have rights granted to them by Chinese Labor Law.
There are 10 things that you should know about Chinese Labor Law:
- There will not be any discrimination based on country of origin, race or gender.
- Workers are to be paid in currency, and their pay is to be given to them.
- A labor contract between an employer and employee is considered to be mutually binding. The Chinese labor law spells out what is expected on both sides. An employee cannot just leave a job without giving thirty days’ notice, nor can an employer terminate employment without similar notice unless there are mitigating circumstances. On the employee’s side one example of this might be a non-work-related illness or injury that made him or her unable to continue in the previous position. (Work related injuries or illnesses are treated differently.) On the employer’s side, if the company is becoming bankrupt, then the employer might be forced into terminating the jobs of all or many employees in order to keep the company alive. There are additional rules that apply to these circumstances.
- Under the Employment Contracts Law, the employment relationship begins when the employee starts work. The Law requires a written employment contract to be entered into when such a relationship is established. However, if the employment relationship is established before a written contract is entered into, then the parties have one month to work on an employment agreement.
If no written contract is signed by the “one-month” deadline, the employer has to pay double salary to the employee, counting from the first day of the second month. After a year without a written contract, the employer must pay double salary from the second month to the end of the first year of employment and the contract is also deemed to be a labor contract without fixed term from the first day of the second year.
- The Chinese work week is to be no more than 44 hours long, and employees must have at least one day per week off. All workers have Chinese national holidays off. The exception to this is in times of crisis where workers might be needed to help out – during a tsunami, for example. Workers might also be asked to work extra if the company has an unusually large workload, but the company is expected to make suitable adjustments for those times.
- There are some minimum employment terms and conditions set down by law that employers have to observe. Employers should not violate the minimum employment terms and conditions provided by laws and regulations. More specifically, there are minimum conditions for local wages (set by local governments), holidays (5 to 15 days/year according to the service years), terms included in the employment contracts, payment of social security premiums and measures for the prevention of occupational risks. Laws set a maximum limit for overtime work (3 hours/day and 36 hours/month), probation (0-6 months according to the term of employment contract) and use of dispatched employees (in proportion 10% of the formal employees).
- Minimum wage in China varies from province to province, with Shanghai being the highest at 2020 Yuan per month (a Yuan is valued at .15 USD, or at .16 EU), and 850 Yuan being the lowest. However, living expenses in Shanghai are approximately half the cost of living in Chicago, Illinois, in the United States, for example.
- Women are restricted from doing certain types of heavy work, including work that is underground or some types of work high up in the air, and there are regulations regarding menstrual cycles, pregnancy and maternity leave. Otherwise, they are to be given equal work and equal pay.
- Maternity leave lasts for 98 consecutive days, and it may start 15 days before the delivery. 15 additional days are granted for difficult labour and 15 more days for each child in case of multiple births. Local regulations may stipulate for additional days off. For example, Beijing and Shanghai provide for an extra 30 days of maternity leave for a late birth, i.e. after 24 years old. Female employees who have a miscarriage are entitled to 15 or 42 days of maternity leave according to whether the miscarriage happened before or after the first 4 months of their pregnancy respectively.
- Part-time workers can be dismissed at will and without compensation, which is not allowed with the termination of full-time employees. Dispatched workers are entitled to equal pay for equal work even in the accepting unit.
Of special note for foreign workers:
- You should always be prepared to allow your work permit to be inspected.
- If you wish to change employer, extend your stay or change permission you must have permission from the proper authorities.
- Foreigners and employers who forge documents, buy or sell permits, or in any way falsely use or create documents, the labor department will revoke permits, confiscate illegal earnings and impose a fine between 10,000 and 15,000 yuan. If a crime is involved, they will also be remanded to the appropriate legal authorities.
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