The Rules for the Administration of Employment of Foreigners in China, promulgated by former Labor Ministry, Public Security Ministry and Ministry of Foreign Affairs, is an old provision since 1996 without any revision. Recently with the internationalization of the employment market in China, there are more and more foreign labor disputes in new style. From the judgment of legitimate employment by focusing on working permit, to the application of severance payment to foreigners, and the judicial view of discretion clause on termination criteria of foreigners, all these typical issues require a conclusion from judicial practice.

This article picks Mr. Zhou v. Company A (case no. (2015) Hu Er Zhong Min San (Min) Zhong Zi No. 7) from Shanghai 2nd Intermediate Court as a lead to analyze the above issues based on practical experience and researches into other cases.

I. Case Analysis

1. Facts

In the employment contract executed between Company A and Mr. Zhou, it is agreed concerning their mutual termination rights and obligations that, within the duration of the contract, any Party shall notify the other in writing before terminating the contract, otherwise the defaulting Party shall pay the other two-month compensation in lieu of notice.  Within the duration, if the project which Party B (namely Mr. Zhou) is involved in ends or terminates, the employment contract will be terminated with it, provided a written notification to Party B in thirty days. Later in the performance of the employment contract, both Parties had inconsistence through negotiation upon the adjustment of position and Company A then sent written notification to Mr. Zhou to terminate the employment relationship while asking him to coordinate with cancellation procedure of working permit. Mr. Zhou took the issue to  court.

2. Claims of the Employee

Although Mr. Zhou recognized such termination clause as above in the employment contract, he insisted that such stipulation was invalid since it conflicted with legitimate criteria for employer’s unilateral termination. He claimed for the severance payment, wages in lieu of notice and asked Company A to issue the certificate of employment separation.

3. Defense of the Company

Company A argued that since the company project was finishing, the Company had previously held a conference with all staff in the project and announced to transfer them to other projects, while maintaining workplace, position and remuneration and awarding thanking bonus to coordinative staff.  Later, the Company conducted two rounds of talks with Mr. Zhou but he finally rejected the arrangement and got absent from work then.  The Company’s transfer arrangement was reasonable and made known one month in advance. As a foreign employee, the termination rights and obligations for Mr. Zhou shall be subject to the employment contract.

4. Judgment and Reasons

The courts of first and second instance both thought Rules for the Administration of Employment of Foreigners in China stipulates that for foreign employees in China, their salary shall not be lower than local minimum salary standard, and their working time, holidays, labor safety and hygiene, and social securities shall be subject to corresponding national regulations, which is an exhaustive listing stipulation in the law.  Other labor rights and obligations apart from the aforementioned can be stipulated by mutual employment contracts or other agreements.

Hence for foreign labor-related disputes, except for the above policy and mutual written stipulation, it lacks proof if anyone asks to apply national labor standard and remuneration.  In this case, their employment contract only stipulated that within the duration, if the project which Mr. Zhou was involved in ended or terminated, the employment contract would be terminated with it, provided a written notification to Party B in thirty days.  There was no content regarding severance payment, and thus courts did not support the claim for it.

II. Extended Analysis

1. The Legitimacy of Foreign Employment

Legitimate employment refers to circumstances when the foreign employee and domestic employer have accordingly conducted each procedure for domestic employment (mainly the “work permit”), and maintained employment relationship as declared; on the contrary, illegitimate employment refers to circumstances when the foreign employee and domestic employer have not accordingly conducted each procedure for domestic employment, or maintained employment relationship as declared.

To determine legitimacy in employment, there are two factors in need of clarification: one is the procedures when establishing employment relationship, the other is the procedures during maintaining such relationship. Legitimate employment can’t be established without either of them.  Main factors of illegitimate employment may include but are not limited to: working out of registered region (including long-term cross-regional work in the name of business trip); working other than registered position; working for multiple employers while out of conformance with legal conditions; part-time working foreign students without applying for filling in the residence permit; other illegal circumstances.

In addition, according to the Judicial Explanation IV on Labor-Related Disputes issued by the Supreme Court, if an employment contract is signed with domestic employer without obtaining working certificates, the courts will not support any Party’s claim for confirmation of employment relationship. In this regard, the “Employment Permit” is a pre-condition for the discussion of foreign employment, and also a major consideration factor in judicial practice to judge whether there exists employment relationship. 

2. Discretionary Clauses in Foreign Employment Contract

In reference to the statement of the court in the above case, Article 22 and 23 in Rules for the Administration of Employment of Foreigners in China regulate that for foreign employees in China, their salary, working time, holidays, labor safety and hygiene, and social insurance shall be subject to corresponding national regulations.  Other items can be stipulated by mutual employment contracts or other agreements. Moreover, Shanghai Labor Bureau states in Opinions on Implementing Rules for the Administration of Employment of Foreigners in China that, it shall be stipulated in the employment contracts regarding the hiring duration, position, remuneration, insurance, working time, termination criteria and breach liability between employers and their approved foreign employees.  Among these items, the termination criteria and breach liability has caused many disputes in practice due to its relevance to the employment termination.  

In judicial practice, two intermediate courts used to hold different opinions regarding this issue. According to our research, the judicial approach of the Shanghai 1st Intermediate Court and other inferior courts in its jurisdiction regarding the discretionary clauses normally would be based on the above laws and regulations, while the Shanghai 2nd Intermediate court has specified in White Paper of Labor Disputes Trials of Year 2010 that based on the general judicial doctrine for application of law, the new and superior law (i.e. the Employment Contract law) would prevail, and if the discretionary clause regarding labor standard stipulated by the employer and foreign employee contradicts with the compulsory stipulations in the law, it will be deemed invalid.

It is also noteworthy that the attitudes of Shanghai 2nd Intermediate court and other inferior courts in its jurisdiction towards such issue have also changed in recent years. In many cases (including the above Company A’s case decided in 2015), these courts do not deny the legitimacy and validity of such “termination-at-will” clause.  Thus, currently the judicial practice in Shanghai tends to recognize the validity of discretionary clauses in foreign employment contract, unless it is related to remuneration, working time, holidays, labor safety and hygiene, and social insurance.

3. Severance Payment for Foreign Employees?

As we have discussed previously, the two intermediate courts in Shanghai differs in their judicial opinions in labor disputes trials for foreign employees. Shanghai 1st Intermediate Court holds the view that due to the existence of Opinions on Implementing Rules for the Administration of Employment of Foreigners in China, it will be hard for the employment to completely apply on foreign employees, and therefore the court will not support severance payment claim for foreign employees, unless otherwise stipulated for the applicable law or severance payment in the employment contract.

However, the some cases trialed by Shanghai 2nd Intermediate Court used to have different opinions towards this issue: it once ruled to grant severance payment to foreign employees without related stipulation, e.g. (2010) Hu Er Zhong Min San (Min) Zhong Zi No. 2271 and 2187, but recently Shanghai 2nd Intermediate Court tends to have the same handling attitude as Shanghai 1st Intermediate Court, i.e. no severance payment for foreign employees unless there is special stipulations in the employment contract. 

III. Conclusion and Suggestion

To conclude, it is apparent that there is certain particularity in the employment of foreign employees, the change and diversity of judicial opinions on this issue also caused major uncertainty on the outcome of such cases, both of which has increased the difficulties for the employer in the management of foreign employees.

Thus, we would suggest that in the management of foreign employment, the employer should ensure the legitimacy and compliance of relevant procedure during the employees’ work period to prevent the legal risks of illegitimate employment. In addition, from the perspective of flexible employment, the employer could also consider to specify the termination condition and separation compensation in the employment contract clearly, in order to avoid further labor disputes.