Labor Law Protection, Illegal Termination, and Employer Disputes

Original Julian Expat Services SH 2021-10-12

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Do you feel unprotected by the Labor Law? Have you been illegally terminated? Do you have a dispute with your employer?

Please refer to our related article:

Legal Way to Recover Unpaid Wages (in China)

Accelerated by the COVID-19 virus, we have seen many more cases where there's a dispute between employees and employers. Many employers either took advantage of the epidemic or are unable to follow through with the contract due to business impact. As a foreign employee, what should we do in this situation to make sure we receive the full protection under the law?

You can go seek assistance from the Labor inspection team（劳动监察大队) or the Labor dispute arbitration committee (劳动争议仲裁委员会) in your city’s district or county if your contract has been terminated. If your contract has not been terminated then this does not apply.

Labor inspection is an administrative punishment procedure for labor disputes. It has administrative punishment powers but cannot organize mediation between the two parties. Labor arbitration or labor litigation is a judicial process for labor disputes. It does not have administrative punishment powers, but it can organize mediation between both parties.

How to file a complaint with the labor inspection department

1) In-person: If one's wages or labor remuneration is not paid, it is necessary to safeguard rights when it involves tangible benefits. Report the case in person, and the Labor inspection team will generally accept it, but how the bureau deals with it is as per specific provisions of the labor law.

2) Group of colleagues: The problem of arrears of employees' wages or non-payment of remuneration often involves large groups. To attract the attention of relevant departments, the scene of many people gathering for salary may be understandable, but since labor inspection is approached, it is necessary to select three or five representatives to complain according to the law by the prescribed procedures.

3) Written Complain: If the employee is introverted and involves deep issues, some people take the form of written complaints. The advantage of a written complaint is to avoid inefficiencies and to make the issue clear.

4) By calling on 12333: If you encounter infringement or illegal behavior, call this number directly, the problem may be solved in a timely manner. Ensure you/your friend can speak Chinese.

Prepare evidence and actively cooperate with the investigation. As a law enforcement agency, labor inspection must also act by the law. As a complainant, it's not just a matter of a visit, a letter, and a phone call. Evidence must be gathered and provided before the complaint. After the complaint is accepted, we must actively provide clues to help the labor inspection department handle it properly.

How to write a report letter to the labor inspection team

Many people have found behaviors in violation of the relevant provisions of the labor law around them and want to report to the labor inspection department, but they do not know how to write the report letter. Let us help you here.

Report materials should include the following

(1) Name, gender, age, occupation, ID/passport number, Company/school, home address, and contact information of the reporter

(2) Name of the employer being reported, the name of the person being reported, the detailed address (address), the registration authority for industry and commerce, the name, title, and telephone number of the legal representative

(3) The time, place, content, process, number of people involved, amount of money, etc. of the reported incident

(4) Evidence supporting the report

(5) The reporter's signature and the time of reporting

What are the consequences of the company being complained by employees to the Labor Bureau?

1. It depends on what has been complained to the Labor Inspection Bureau; the Labor Inspection Bureau is under the bureau of human resources and social security（人力资源和社会保障局). If the illegal act is serious and the payment is not made after the due date, the Human Resources and Social Security Bureau may order the employer to pay compensation to the employee at the standard of 50% to 100%; Yes, criminal liability may be investigated in accordance with the law, and the crime of non-payment of labor remuneration may be suspected.

2. The penalties that the company may face when employees go to the labor bureau:

1) [Legal Liability for Illegal Rules and Regulations]

If the employer's rules and regulations that directly involve the workers' vital interests violate laws and regulations, the labor administrative department shall order corrections and give warnings; those who cause damage to the workers shall be liable for compensation.

2) [Legal liability for lack of mandatory clauses and not providing the text of the labor contract]

If the text of the labor contract provided by the employer does not contain the necessary provisions of the labor contract stipulated in this law or the employer has not delivered the text of the labor contract to the employee, The labor administrative department shall order correction; if it causes damage to the workers, it shall bear the liability for compensation.

3) [Legal liability for not entering into a written labor contract]

If the employer has not concluded a written labor contract with the employee for more than one month and less than one year since the date of employment, the employee shall be paid twice the monthly salary.

Where an employer violates the provisions of this law and does not enter into a non-fixed-term labor contract with the employee, it shall pay the employee twice the monthly salary from the date when the non-fixed-term labor contract shall be concluded.

4) [Legal liability for probation period in violation of law]

If the employer violates the provisions of this law and agrees with the employee on the probation period, the labor administrative department shall order correction; if the probation period in violation of the law has been fulfilled, the employer shall expire the probation period with the employee and pay the monthly salary as per the standard, and compensation is paid to the workers according to the period that has been fulfilled beyond the statutory probation period.

5) [Legal liability for detaining employee's identity documents]

If an employer violates the provisions of this law and detains employee's resident identity card or other documents, the labor administrative department shall order the employee to return the employee within a time limit, and shall be punished in accordance with relevant laws and regulations.

If an employer violates the provisions of this law and collects property from a worker under a guarantee or other name, the labor administrative department shall order the worker to return the worker within a time limit and impose a fine of 500 to 2,000 yuan per person; if it causes damage, it shall be liable for compensation.

If an employee terminates or completes a labor contract according to law, and the employer detains the employee's files or other items, he shall be punished in accordance with the provisions of the preceding paragraph.

6) [Legal liability for failing to pay labor remuneration, economic compensation, etc.]

If the employer has any of the following circumstances, the labor administrative department shall order payment of labor remuneration, overtime pay, or economic compensation within a time limit; if labor compensation is lower than the local minimum wage standard, The difference shall be paid; if the payment is not made within the time limit, the employer shall be ordered to pay compensation to the worker in the following situations according to the standard of 50% to 100%:

(1) Failure to pay labor compensation in full and on time in accordance with the stipulations of the labor contract or state regulations

(2) Paying workers' wages below the local minimum wage standard

(3) Arranging overtime without paying overtime fees

(4) Terminating or breaking a labor contract, failing to pay economic compensation to the employees in accordance with these regulations

7) [Legal liability for entering into an invalid labor contract]

If a labor contract is confirmed to be invalid in accordance with the provisions of Article 26 of this Law and causes damage to the other party, the party at fault shall be liable for compensation.

8) [Legal liability for breach or termination of a labor contract]

If an employer terminates or breaches a labor contract in violation of the provisions of this law, it shall pay compensation to the employee in accordance with twice the economic compensation standard stipulated in Article 47 of this law.

9) [Legal liability for infringing upon the personal rights and interests of workers]

If the employer has any of the following circumstances, administrative penalties shall be imposed according to law; if it constitutes a crime, criminal liability shall be investigated according to law; if it causes damage to workers, it shall be liable for compensation:

(1) Forced labor by means of violence, threats or illegal restrictions on personal freedom

(2) Commanding illegally or forcing risky operations to endanger the personal safety of workers

(3) Insulting, corporal punishment, assault, illegal search or detention of workers

(4) Poor working conditions and serious environmental pollution that cause serious damage to the physical and mental health of workers

10) [Legal liability for not issuing a written certification for termination or termination]

The employer, who did not issue a written certification for termination or termination of the labor contract to the employee violates the provisions of this Law, and the labor administrative department shall order correction.

Authors:

Are you looking for more useful tips for your life in China? Get in touch with contributors for a consultation and follow us in our WeChat Group to receive the latest news.

Julian (WeChat: julian_beijing) is based in Shanghai but often travels for work and runs a company that works with individuals and organizations doing business between the US, China, and Africa. He has been based in China for a number of years.

Ikky (WeChat: ikky888) is an R&D Manager working in Shanghai. He has been living in China for over 11 years.

Jatin (known by the nickname "Prince Jatin") (WeChat: jatinsoni) is a Multicloud DevOps Engineer working in Shanghai. He has been living in China for over eight years and owns three Indian community WeChat groups known for "Helping Indians" with their specific inquiries

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