For the last week or so, our China lawyers have been inundated by requests from employers in China for help in dealing with the many employment law issues created by the coronavirus has created. Just yesterday, our lead China employment lawyer, Grace Yang, wrote about that in Coronavirus and What China Employers Should be Doing (and Not Doing) Now. Our China lawyers have also been getting a ton of requests from employees in China seeking help as well. These are coming via email, Linkedin, and Facebook and well over half involve employees put on unpaid leave due to the coronavirus. The below email is an amalgamation of some I received today and it is pretty typical:
Hi. I’m a foreign English teacher in _________ province. The government order for my province is that all non essential businesses must stay closed until February 9 and my school is closed until February 15 at least, but they are talking about making us teach online. My annual leave was scheduled for January 31 to February 3. I know they can’t legally make me use the three days from 31-February 2, but what about the last day? Can they make me use my annual leave to cover this?A lawyer also told me the wage payment cycle law might also not apply until the END of the current cycle, which for us would be January 31 (plus the extended CNY holiday). In this case, would they have to pay us full salary for the extra mandated closed days (Feb 3-9)? He also said that they might have to pay us for a full wage payment cycle (so for us until the end of February) before being able to pay minimum wage. Can you please set us straight on this?
I have friends at another school who have not been paid for weeks and now their school has also stopped paying their apartment rent as well. We all know this isn’t legal, but can they get away with this? What should we do? Thanks.
My response to these requests is usually somewhat like the below:
You should probably leave China. Now.
You are in a country overcome by a deadly virus and news reports here in the United States make clear it isn’t coping well with that. The official numbers of those with the coronavirus are not even close to the real numbers. China’s medical facilities are stretched thin and there is a shortage of masks and gloves and various other things needed to fight the virus. You are a foreigner in China with a job that does not pay particularly well. To put it bluntly, this means you are a low priority for medical care and for being flown back to your home country. If I were you I would prioritize my health and wellbeing over a day or two of vacation, or, a few hundred dollars in the case of the other teachers for whom you write.
As for your particular situation, it’s complicated and for our China employment lawyers to be able to give you sound advice we would need to review your employment contract and your employer’s rules and regulations and then research the local and provincial laws and also all relevant coronavirus employment updates. We might want to speak with the local employment law authorities as well. Our doing these things would not be cheap and all it would do is tell you what your legal rights are. This would allow you to tell your school what your legal rights are, but not much else. The problem is that your telling your school your legal rights is far more likely to get you fired and then deported than it is to get you vacation time or money. You need to think about what you will do if you are fired and how that might impact you getting your next job?
And if you choose to sue your school for violating your legal rights will mean you will have to pay a lawyer and pay a filing fee and then wait many months for any sort of judgment — this assumes the Chinese courts where you will be functioning again soon. And even if you do get a monetary judgment against your school, this is not the same thing as getting paid on that judgment. So again, I urge you to think about your overall wellbeing and your overall future and I again posit that leaving China is likely going to be the best thing you can do for yourself. Leaving now will allow you to look for work elsewhere and I have to believe potential employers will understand why you left. In my experience, it is nearly always better to leave a country experiencing big trouble and decide from the safety of afar when and if it makes sense for you to return than it is to stay in the hope things will get better.
Many airlines last week announced they would be ending flights to and from China within weeks and today many of those same airlines announced that their final flights will be even sooner. There is no clear end in sight to coronavirus’s spread in China. With every passing day it will become more difficult for foreigners to leave China. For this reason and for the reasons set forth above, I now believe it makes sense for most foreigners to leave China now, if possible.
What are your thoughts? What are you seeing out there?
UPDATES: I got a long and interesting email from a friend in response to this post. This friend has lived in China for more than a decade but he left there about a week ago. His email thanked me for this post and then went on to say how he believes many involved with China are unwilling to admit the realities of what is going on out of loyalty to China or just wanting to be tough. He said he left China because he began to worry about his own safety and his leaving should not be viewed as anything more than that. And yet he believes many are staying in China to send the message that they like China and want to stand by China and he thinks “this is silly” and these people will — “I fear” soon see the error of their ways.
I also have been told by multiple people that this post should have included Hong Kong because of the nurses’ strike there and because Hong Kong is taking its coronavirus orders straight from the CCP. Yes, probably true.
I also am hearing that this post should have mentioned the recent study positing that there have been more than 75,000 coronavirus cases in Wuhan alone. I just assumed nobody really believed China’s numbers and so I did not think citations would be necessary.
IF YOU WANT TO PARTICIPATE IN A LIVELY DISCUSSION ON THE ABOVE (OR JUST OBSERVE ONE), I URGE YOU TO GO HERE ON LINKEDIN.
