A Non-Compete Agreement is a contract where one party agrees not to compete with the other. These agreements reduce the likelihood of someone using information you provide them to compete against you. Non-compete agreements are fairly common between Western companies and their more important employees and it is common for those Western companies to want similar such agreements with their China-based employees.
In China, non-compete (竞业限制) agreements between an employer and an employee are generally limited to senior management, senior technicians and other personnel with confidentiality obligations. China allows for non-compete agreements that prohibit high level employees from working for another company that competes with the employer.
China limits these non-compete provisions to two years or less after termination of the labor contract and it also requires the employer compensate the employee to maintain the non-compete requirement. There are a number of things to which an employer with a non-compete agreement should pay attention, but in this post we focus only on non-compete compensation. The most important thing employers must know about non-compete compensation in China is that the employer is required to pay this compensation after the employee leaves the company and a failure to do so means the employee ceases to be bound by his or her agreement not to compete.
Pursuant to the Judicial Interpretation IV of the Supreme People’s Court on Several Issues Concerning the Application of Law in Hearing Labor Dispute Cases (“Judicial Interpretation IV”), if there is an agreement between an employer and an employee regarding post-employment compensation for a non-compete provision, their agreement prevails. If the agreement is silent on the amount of post-employment compensation for the non-compete provision, the employer must pay the employee compensation at 30% of the employee’s average monthly salary in the 12 months before termination, or the local minimum wage, whichever is higher.
Before Judicial Interpretation IV, there was no statutory guidance (other than Labor Contract Law which does not say much) on the standard of non-compete compensation and locales dealt with this issue by coming up with their own rules. For example, Shanghai used to hold that if there was no agreement on the amount of post-employment compensation, the employer had to pay the employee 20% to 50% of the employee’s last monthly salary. In Jiangsu, the rule was different: the annual non-compete compensation had to be at least one third of the annual salary the employee received from the employer over the 12 months before leaving employment. Though Judicial Interpretation IV is supposed to supersede all the local rules, it is nonetheless advisable to check with the relevant authorities to figure out exactly what their standard as we still occasionally find local differences.
A literal reading of Judicial Interpretation IV would mean that even if the amount of compensation agreed to in a non-compete agreement between an employer and an employee is less than the local minimum wage, it is nevertheless valid and enforceable, because the 30% rule applies only when the non-compete agreement does not specify the compensation. But ex-employees could also argue that any amount less than the minimum wage is unfair and against public policy and thus should not be enforced. Some municipalities faced with this argument, including Shanghai have upheld the “freedom to contract” and ruled against the poorly paid ex-employee.
China employee non-compete agreements are legally complicated and foreign companies constantly get burned by them. For example, if you as an employer agree to a non-compete for, say two years (the maximum non-compete period you can impose under Chinese law), you must pay your ex-employee for two years after he or she leaves, and this is true even if you no longer care about the employee competing with you; otherwise you are in breach of your contract with what has now become your ex-employee. In our experience, about half the time foreign employers are better off not using a post-employment non-compete at all. The trick is figuring out which half your company falls in.
Another key to China employee non-competition agreements is to draft the non-compete provisions (in Chinese, of course) in a clear and easy-to-understand manner so that your employee cannot claim confusion and so that the specified non-compete compensation will not trigger a default compensation rate.