Concluding employment contracts in China

The Employment Contract Law, which is of fundamental importance to China’s labour law regime, doesn’t distinguish non-local employees from local employees. Theoretically, non-local employees should be availed of the same protection, under the Employment Contract Law and other employment-related laws and regulations, as local employees.

However, the local practice in Shanghai is the opposite. Even if non-local employees can be availed of protection under the Employment Contract Law, it’s difficult for non-local senior management to be reinstated by the employer upon an unfair dismissal. This article analyzes this dilemma and gives some tips for non-local senior management who are concluding their employment contracts.

A foreign employee cannot enjoy the protection of relevant labour laws and regulations except for such basic labour rights as minimum salary, labour health and safety, and working hours, in accordance with article 2 of the Opinions of Shanghai High People’s Court of Several Issues in the Trial of Labour Dispute Cases. The opinions are not a formal source of law or regulation formulated through the legitimate procedures by a competent authority in accordance with the Legislation Law. However, it has been widely applied to labour disputes between foreigners and their employers by the courts and labour arbitration committees in Shanghai.

Zoe Zhu is a partner at Boss & Young in Shanghai