Facing some difficulties at work? Are you an expat in China and need some advice on working in China? We’ve sat down with experts over at Joint-Win Partners and put together a Q&A to wrap your head around the basics of the Chinese employment laws. If you’re looking for more insight, you’re invited to attend Joint-Win Partners’ legal clinic on May 16 where in-depth advice will be shared for both employees and employers.
What documentation do I need to legally work in China?
You need two permits. The Alien Employment Permit (AEP, the brown book) or the Foreign Expert Certificate (FEC, the blue book) and the Residence Permit on your passport. Note that after 4/1/2017, a new type of work permit is in effect as substitution of both AEP and FEC. For the purpose of this Q&A, we still use AEP in all examples.
My 1-year AEP is expiring soon. What do I do?
If you have come to the agreement with your employer that you will continue working with them, your employer has 30 days before the expiration of your AEP to apply for an extension. If you have decided you will no longer be working with them, then you must either find another employer to sponsor your new AEP, or change immigration status.
I have a 3-year employment contract but my AEP only lasts for a year. What should I do?
You must get your employer to renew your AEP before it expires. If this is not done, you may have a case against your employer for your economic loss from not being able to work due to the late or non-application. Note that your employer cannot terminate the contract on the grounds that your AEP is expiring.
Can I sign an open-ended contract?
You may choose to enter into an open-ended employment contract with your company, but do note that the maximum effective period for any such contract is 5 years.
My AEP starts on Aug 1 but the start date on my contract with the employer is on July 1. Can I start working on July 1?
No. The start date on your AEP is the very first day you’re allowed to start working legally at your employer. To be safe, do not report for work at the office before this date. Officials from the Entry-Exit Bureau are known to run random checks at companies, and if you’re found at company premises before your start date, you may be deemed to be illegally working, for which there may be severe consequences for both your company and yourself (see below).
Besides my full time job, can I work part-time as well?
No. You are only allowed to legally work at the company sponsoring your AEP, and any part-time job with any other company is technically illegal.
I have found a job with another employer. Can I continue using the old AEP?
No. Once again, you are only allowed to legally work at the company sponsoring your AEP. If you are leaving on amicable terms with your former employer (the ideal scenario), they may agree to assign your AEP to your new employer. If not, your former employer needs to unregister your permit before your new employer applies for a new one on your behalf. Note that you must stop working until the new AEP is issued.
What are the consequences of illegally working?
a. A fine of 5,000 to 20,000 yuan;
b. Detention 5-15 days together with a fine of 5K-20K, or
For employers who hire illegal employees:
a. A fine of 10,000 to 100,000 yuan, and
b. Confiscation of earnings from illegal hiring
Can my employer fire me for no cause?
This depends on how your employment contract is worded. For your employer to be able to legally fire you without cause, your contract must explicitly empower your employer to do so. If your contract is silent on termination, Chinese labour law kicks in, which requires one of the five following conditions to be present before employment can be legally terminated.
1. Through negotiation where both parties agree to terminate;
2. You’re sick or injured and cannot perform the duty; or unfit to be reassigned to another position;
3. If you are not capable of performing your current duties, your employer needs to train or reassign you to another position, but if you are still unable to perform in the new position, then your employer has legal grounds to terminate your contract;
4.The circumstances under which your contract was signed have materially altered, leading to the impossibility of contract execution, and negotiations between you and your employer prove to be fruitless;
5. Your employer is insolvent or filing for bankruptcy.
My employer has unilaterally terminated my contract. What should I do?
You have several options. You may go to arbitration to plead for compensation, or the continuation of the contract. You could also opt to sue your employer in court, either after arbitration has failed, or as a direct measure. Speak to your lawyer for the best option in your particular circumstance.
Want more employment-related legal advice?
Sign up for this legal clinic!
Want to learn more about employment laws in China? Whether you’re an employee or employer, this legal clinic held by Joint-Win partners will help you. Sign up for the free session below!
May 16 (Tue)
Who should attend:
1. Employees seeking arbitration or litigation in labour disputes
2. Human resources executives
3. Students seeking employment in China
What you’ll learn:
1. Work legalities
2. How to sign an employment contract
3. What to do if you are terminated
4. Remedies for terminations
Registration deadline: May 14 (Sun) 6pm
Everybody must register beforehand, no show-ups allowed on the day.
To enter, you must bring your business card/ student card.
Rm 2307, Cloud Nine Plaza, 1118 West Yan’an Road
延安西路1118号 (近江苏路) 龙之梦大厦 2307室
About the speaker
Licensed attorney Bruce Fan in New York with the following practice areas: real estate litigation and corporate compliance. He heads up the international department at Joint-Win Partners, a full-service legal firm in Shanghai. Fluent in Chinese, English and Spanish, Bruce represents foreigners in Shanghai in labor disputes, assets management, corporate share structures and foreign investments.