Practicing Area
Dismissal
Dismissal lies in the heart of security in employment. In Chinese employment law, dismissal can be either legal or illegal. Only legal dismissal is effective and it must satisfy one of the conditions prescribed by law. Any illegal dismissal will be ineffective and the dismissed has the right to claim reinstatement, while the employer must make full payment for the period between dismissal and the order of reinstatement, although the dismissed employee may chose to accept the breach of contract and make alternative claim for compensation. How the degree of unfairness will be reflected in the amount of compensation is not clearly stipulated.
Redundancy
Redundancy is regulated by both substantive and procedural requirement. Employers are required to proof the satisfaction of substantive condition and report to labor administration bureau. Restructuring and some other substantial reason are recognized as legal reason for redundancy by the newly enacted Chinese employment contract law. Fixed term employee and employee of indefinite duration are treated in different order in redundancy.
Pay and overtime
Minimum wage standards are different throughout Chinese provinces. Shanghai minimum wage standard is adjusted yearly by Shanghai government. Aside this, pay level is largely fixed by market force, especially in enterprise without trade union organization. However, overtime premium is strictly stipulated by statute and not negotiable between the contracting parties. To work on statutory holiday, the daily pay will be tripled.
Part-timer
Part-timer is defined as an employee who normally works less than four hours a day and 24 hours a week. This is a kind of flexible form of employment relationship. Unlike full timer, it can be oral contract; the worker may be employed by more than one employer; the relationship may be unilaterally terminated without notice and the employer will not risk any compensation claim.
Workplace rules and regulations
Stipulating workplace rules and regulations is no more the prerogative of employers, but a kind obligation. To make sure its legality, it must be ascertained through democratic negotiation with employee. However, their importance can never be over emphasized, as they will frequently be relied upon to justify dismissal. Only serious breaching of legal workplace rules and regulations may be legal and any illegal dismissal will risk the challenge of employee claiming reinstatement.
Non-competition
Non-competition clause is only applicable to employees holding employer's confidence. The duration of non-competition should be less than two years and the obligatory employee must be compensated after the termination of employment contract, to bring the non-competition clause into effect. The scope, territory, and duration of non-competition will be made based on negotiation by the contracting party with the only restrict that it must be legal.
Anti-discrimination
Sex discrimination concerning pregnancy is the most developed part of Chinese anti-discrimination law in the employment field. Pregnant woman has the right to fully paid and any dismissal during pregnancy and maternity for stipulated duration shall be illegal and void. Whether the employer's knowledge of pregnancy before dismissal is an essential element is not stipulated. Clearly, however, the reason the dismissed has been employed is irrelevant.
Other areas
Transfer of undertakings and restructuring, health safety and industrial injury, occupational pension and social security, etc.
