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 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.
So how could you avoid problems with your employer and what do
you do now if you have one? If you are contemplating signing or
have signed a contract, here are a few tips…
- 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.
- 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.
- 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.
- 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:
- Signed and notarized Labor Arbitration Petition(notarized
by the Shanghai notary office);
- Alien Employment Permit (it looks like a passport which your
employer must give you in order for you to legally work in China)
- 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
Article taken from: http://www.shanghaiexpat.com/Article1103677.phtml
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