1. Q: Employees can’t terminate their employment contract, otherwise they have to pay a penalty, correct?
A：Incorrect, you can terminate the employment contract legally by sending a 30 day’s written notice without facing any penalty.
According to Article 37 of the《Labor Contract Law of the PRC》: “An employee may terminate their employment contract if he/she informs the employer in writing 30 days in advance. During the probation period, an employee may terminate their employment contract if he/she informs the employer three days in advance.”
Furthermore, according to related laws, the employer can’t ask employees to pay any penalty, unless:
1. the employer has paid training fee for employee and the employee wants to leave before the agreed employment term is finished. Or
2. the employee failed to abide by a non-compete agreement.
However, if the employment contract provides that the employee has to pay any direct loss the employer suffers because of their earlier termination, some of the arbitrators or judges may claim the provisions are reasonable and would agree in favor of the employer, such as the recruitment fee, visa fee, etc.
2. Q: My employer refuse to provide me with the release letter as they claim they won’t accept my resignation.
A: Incorrect. Though the employees are required to inform the employer of their intention to resign in writing 30 days in advance, they don’t need approval from the employer to resign.
On the other side, according to Article 50 of the 《Labor Contract Law of the PRC》: “When terminating an employment contract, the employer shall issue a certification for the discharge or termination of the employment contract simultaneously and shall complete the procedures for the transfer of the worker’s archives and social security relationship within 15 days.”
Article 89 of the《Labor Contract Law of the PRC》also specifies: “Where any employer is in violation of this Law because of failing to issue a certificate in written form for the discharge or termination of an employment contract to any employee, the labor administrative department shall order the employer to make a correction. If any damage occurs to the employee, the employer shall bear the liability for compensation.”
In conclusion, it’s the employer’s statutory duty to provide the employees release letters and help to cancel their work permits, so they can apply for new work permits in time.
3. Q: My employer told me that I can’t participate in the social security plan, as I am a foreigner. The social security plan is only available to Chinese people.
A: It’s incorrect. Foreigners are required to participate in the social security plan, as long as they are working legally in China.
Article 72 of the 《Labor Law of the PRC》specifies: “The employers and employees must participate in social insurance and pay social insurance premiums in accordance with the law.”
In addition, Article 4 of 《Interim Measures for the Participation in Social Insurance of Foreigners Employed in China》specifies: “An employer hiring foreigners shall conduct social insurance registration for the foreigners concerned within 30 days from the date of completing the formalities for employment certificates for them.”