Expat Employees Suing Their China Employers: Good Luck with That

Pretty much every day since COVID started, one of our law firm’s China lawyers will get an email from a distraught or angry or shocked expat regarding their Chinese employer not paying them. This is happening even though the number of expats in China is in a straight-line decline, with many expats leaving China and few going there. The below is a typical such email:

I have been working in China for 2 years in a ______ company called _______! All legal including a work permit. However when I had to leave China to take care of my mother in Brazil, my employer fired me and never paid me for my final two months of work.

Since then, they have ignored my texts and phone calls. I left all my valuables and documents in my house in China, eventually to return there. The company sent someone to my house to pick up my stuff and they sent all of that to me but I noticed that all of the documents which link to the company were not among them.

I have contacted the embassy for help but they too have not responded and everyone tells me there is nothing they can do. I really need this money and so I think I need a lawyer. I will forward you the emails I sent the embassy for further advice if necessary.

Thanks a lot. Awaiting to hear from you.

Our response to this email was typical as well:

I am sorry, but we do not take on cases representing foreign employees in China mostly because they border on hopeless and because it is usually a bad idea for foreigners even to bring such cases. Chinese companies have all the power and if you challenge one they often will get you arrested for something/anything (real or not) and then you will get tossed in jail for 30 days and then you will get deported. We do not want to put that risk on anyone. So even if your lawsuit can be handled remotely, your suing will likely mean you will never be able to return to China.

More importantly, the chances of you winning this lawsuit as a foreigner are so slim as to usually also not warrant spending the time or money. And if you do sue, the chances of anyone hiring you in China ever again will drop as well. We do not want to take someone’s money on a case that we do not think can be won.

If you nonetheless wish to pursue your employment claims against _________, I would urge you to use a good local Chinese plaintiff’s side employment lawyer for this.

My advice is for you to leave China (if you are still there) as soon as possible and not return for a long time, if ever. I say this because you are likely already viewed as a thorn in the side of this Chinese company and that is not a good position to be in. If you must stay in China, you will need to get your old employer to transfer your work permit to your new employer and that will likely be difficult, but maybe that will be possible if you agree in writing to release all claims you might have against them. I suggest you retain a local lawyer to help you with this as well.

No matter how you proceed, I wish you the best of luck

What should an expat employee do in China to prevent this sort of situation? Number one, have a really good employment contract that might convince your employer that it would be better off just paying you than risk a lawsuit — our China employment lawyers do this sort of work, just not the hopeless kind. If your employer really wants to retain you, it may even be possible for you to get your last month’s salary upfront (sort of like landlords do with rent). Also, if your employer stops paying you or starts mistreating you or starts experiencing financial problems, go immediately to a local lawyer for possible solutions.

Most importantly, know your risks when you sign up and if things start looking really bad, oftentimes the best solution (but not always) is to go the airport and get the heck out.

What are you seeing out there?