| 1. Insist on signing ONLY an English-language copy. If the prospective
employer balks at this and explains that it is illegal to only sign an
English version, you should try to convince them that that is not true.
In China, you can be legally employed with signing an English-only version.
But, if they insist, it is OK to sign a Chinese version, but DO NOT sign
a Chinese-language contract without simultaneously signing a purported
English-language copy. When signing the Chinese version, you should add
a note near your signature that you do not understand Chinese and as a
result are unaware of the contents of that version. The fact that the
company provided the translation should influence a judge to lean in your
favor with any discrepancy between the two versions.
2. Make sure the language (the version you understand) in your employment
contract is WATER-TIGHT. The employment contracts that I have seen from
my expatriate clients are so poorly written it feels like I have to cup
the contract with two hands for fear that it may slip through my fingers.
Make sure someone who passed high school with a “C” average
can read the contract through one time and understand it. It should be
written in clear, basic English which can easily be translated into Chinese
by an average-skilled translator, yet still have enough sophistication
that a lawyer or judge can feel secure when reviewing.
3. Memorialize all subsequent amendments and insist an authorized company
representative sign it. Often times, the employer wil lpromise to sign
it but use delay tactics. Do not be lulled into putting this off. A signed
writing is almost necessary for a China judge to enforce an employer’s
promise.
4. If a promise is not delivered, make a written demand with a time-certain
a reply must be received (should be 10 days or less). The establishment
of the date a written demand made is crucial to enforcing your rights
within the China Labor Arbitration system.
If you cannot settle the dispute with your employer, then you can file
a petition with the Labor Arbitration Bureau. It sounds like a scary place
to be, but it can be surprisingly pleasant, even for a foreigner.
But before you can have your case heard, you must have these things:
1. Signed and notarized Labor Arbitration Petition(notarized by the Shanghai
notary office);
2. Alien Employment Permit (it looks like a passport which your employer
must give you in order for you to legally work in China)
3. Labor Contract (whichever versions were signed must be submitted).
You will submit these to a clerk of the court. This is not a simple,
perfunctory step. The clerk (through the Review Committee) actually has
the power to refuse your petition for either procedural or substantive
reasons. If the clerk accepts your petition, then it will set a preliminary
hearing date about two weeks later. This date is important because the
judge must issue a decision within about three months of that date.
Most expats believe that pursuing a case in court requires thousands
of dollars in legal fees and expenses (especially in litigious countries
like the U.S.).This is not the situation here. First, a lawyer can pursue
your case on contingency which means you don’t pay unless you receive
money from the employer. You will need to expend some money up-front for
translation and notarization fees, but it is relatively cheap ($500 is
about average). But, if you receive a favorable judgment, it is possible
for the court to award these fees to you in addition to the disputed amount
(as long as there is no counter-claim, then it is highly improbable for
the court to award expenses to the defendant).
If you don’t want to stay in China to battle in court, don’t
worry, you don’t have to. The court will hear your case despite
your absence in the country as long as you have a licensed China lawyer
representing you. But you have to first sign, in-person, some documents
with the Notary office.
The best advice I can give is to make sure the contract cannot be interpreted
in more than one way which is the way you understand it to mean. If the
employer violates an unambiguous promise, the judicial process should
be swift and rewarding.
Adam Ehrlich
adam.ehrlich@concord-lawyers.sh.cn
www.concordcolaw.com
|
Living
and working in a foreign country can be a daunting endeavor - the native
language is not your own and you are thousands of miles/kilometers away
from your family/friends. So, I think it's natural for an expatriate to
look to and depend on its Shanghai employer as a source of comfort and
assistance. It is reasonable to believe that your Shanghai employer understands
your vulnerable situation and will shield you from predators that feed
off the naive that venture into Shanghai from foreign lands. But, when
the employer is actually one of the predators, your Shanghai adventure
may soon be over.
