China Employment Contracts. The Basics On Probation.

There is some truth to an old expression about China employees, “once hired, never fired.” Terminating a Chinese employee is rarely going to be easy, but if that employee is on probation, you do have a better chance of not getting sued for doing so.

China does allow probationary periods for Chinese employees, but only if done right. The maximum term of the probationary period depends on the term of the employment contract. If the employment contract is for between three months and one year, the probationary period can be for up to one month. If the employment contract is for between one year and three years, the probationary period can be for up to two months. For fixed-term employment contracts of three years or more, and for employment contracts with no fixed term, the probationary period can be for up to six months.

If the employment contract terminates upon completion of an agreed assignment or if the employment contract is for less than three months, there can be no probationary period.

An employee may be subject to only one probationary period with the same employer and this holds true even if the employee leaves that employer and then rejoins it.

Any probationary period must be set forth in the employment contract. If an employer enters into a separate agreement with its employee for a probationary period, the probationary agreement will be void and there will be no probationary period and the employer will be deemed to have entered into a fixed-term contract with the employee. This is done to prevent an employer who becomes unhappy with its employee from putting that employee on probation after the hiring.

My firm’s China lawyers draft all China employment contracts in Chinese as the official language (and in English as a translation for our clients) because we have heard instances of Chinese courts refusing to recognize English language employment contracts after finding that the Chinese employee did not fully understand them. We consider English language employment contracts in China to be the equivalent of a Chinese language employment contract in the United States; they make no sense at all.

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