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My Company Didn’t Pay Me, What Can I Do?

Sophie Mao LegalTips 2023-01-12
收录于合集
##employment law 24 个
#personal issues 97 个
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We got a lot of inquires recently: “My school didn’t pay me for two months, what can I do?”
Now, let us to explain what you should pay attention to:

1. Firstly you need to decide: should I stay or leave?
Generally speaking, an employee’s salary will be paid before 15th of the following month. It means that when you find you can’t get your previous month’s salary, you have already worked up to 15 days the following month. This means you could be owed a full month’s salary plus the days worked from the current month. What should you do now, stay with the company/ school or leave the company/school, this is an issue!

If this is just a temporary situation, such as cash flow problems because of any emergency, you can choose to stay with them. Otherwise, you may consider finding a new job and leaving.

If you are worried about not getting your salary and choose to stay, then you are making the wrong decision. If the company is in financial difficulty, the longer you stay, probably the more you will lose.

If for some reason, you didn’t get the salary, staying with the employer won’t increase your chances of getting paid, to be honest.  In other words, quitting is not a good reason for any employer to refuse to pay you. No situation is an excuse for not paying salary, as long as you did the job properly.
 
2. Transfer your job smoothly is your priority if you decide to leave.

For most foreigners working in China, the most difficult part of getting a new job is the transferring of paperwork and visa. Some employers feel reluctant to issue a release letter and cancel the work permit even when the employee has informed them of their intention to resign in line with the law.  Transferring job smoothly sometimes becomes the biggest concern for foreigners working in China.
 
So, try your best to maintain a good relationship and negotiate with your employer to transfer your job is a wise move.

We can see some consultants encourage foreigners to use Article. 38 of the (labor contract law of the PRC) as an argument to quit and ask for compensation later, we really think this is not a good idea

The reason we never mention Article.38 to foreigners is: unlike Chinese, foreigners need to go through more procedures (complicated and time sensitive) and to continue to work in China legally you need to have your work permit and visa, so we don’t want to complicate the issues while time is essential. So be careful if you want to use Article.38!

3. What about the salary unpaid?
Another important reason for employees unwilling to quit is that they are worried once they quit, there can’t claim the unpaid salary.

According to related laws, the time limit for hearing a labor dispute is one year, which means you can claim your salary your ex-employer owes you any time within one year. Once you settle in your new position, you can consult with your lawyer to file a labor arbitration.

Then another question comes: How can I prove the amount of the unpaid salary?
Usually, you don’t have to worry about that. For a case like this, all you have to do is to prove that you had a labor contract with them show the agreed salary，so a signed labor contract is enough.
You don’t have to prove that you have not been paid in full.  It’s the employer’s duty to prove that they have make all the required salary payments. 
If the amount you received is more than the amount written in the contract, then you have to prove it, such as the bank slip or payroll statement. 

As we said previously, the most important thing is to transfer your work permit and visa to the new company on time. You don’t have to be worried about unpaid salary, technically, you don’t have to do anything before quitting, such as asking the previous employer to write a promise to pay you, or to ask them to provide a financial statement regarding how much they are supposed to pay. 

The purpose of the labor law is to provide employees a legal way to get unpaid salary as the law will force them to do it and you don’t need to worry.

Related provision in <Labor Contract Law of the PRC>

Article 85 In the case of any of the following circumstances occurring to any employer, it shall be ordered by the labor administrative department to pay the remunerations, overtime remunerations or economic compensations within a time limit. If the remuneration is lower than the local minimum salary, the employer shall pay the shortfall. If payment is not made within the time limit, the employer shall be ordered to pay an extra compensation to the worker at a rate of not less than 50 percent and not more than 100 percent of the payable amount:
(1)It fails to timely pay a worker full remuneration as stipulated in the labor contract or prescribed by the state;
(2)It pays a worker the salary that is lower than the local minimum salary;
(3)It arranges overtime work but not pays overtime remunerations; or
(4)It discharges or terminates a labor contract without paying the worker the economic compensation in accordance with this Law.
In Chinese:
第八十五条　用人单位有下列情形之一的，由劳动行政部门责令限期支付劳动报酬、加班费或者经济补偿；劳动报酬低于当地最低工资标准的，应当支付其差额部分；逾期不支付的，责令用人单位按应付金额百分之五十以上百分之一百以下的标准向劳动者加付赔偿金：
　　（一）未按照劳动合同的约定或者国家规定及时足额支付劳动者劳动报酬的；　　
 （二）低于当地最低工资标准支付劳动者工资的；
　 （三）安排加班不支付加班费的；
（四）解除或者终止劳动合同，未依照本法规定向劳动者支付经济补偿的。　　


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