Hello,
Just reading up on SAFEA contracts and am trying to determine if my contract is even valid! I am employed by a fairly well known international school in China. My contract is written in plain English but has a few ambiguous statements such as, "If you leave employment of _____, you may be subject to prorating or loss of benefits including, but not limited to, salary, displacement allowance, savings contributions, housing and airfare."
May be? Dear lord how lame am I that I signed such a contract.
Now though, looking at SAFEA regulations I'm wondering if I was supposed to sign a SAFEA contract in addition to the one written in English provided by my employer.
I am on a two year contract but given many irregularities in promises made and actual circumstances, I plan to leave at the ned of this year.
Trying to figure out what my legal standing is with regard to possibly having my school try to make me pay back any expenses or generally acting negatively toward me.
Suggestions, comments, helpful advice are all most welcome.
China Employment Contract - SAFEA
Response
Long post ahead (actually most of my posts are long).
Chinese contracts for FEs (Foreign Experts) are actually two parts. The first part is the boiler plate, copy straight from the ministry. Its essentially a template, says how much you will be paid and the general conditions such as the IS/employer will introduce you to the cultural (legal) aspects of working in China. Its pretty short and pretty bland, about two pages. The second part of the contract is the "addendum" though it can go by several names and is the part that "looks" most like a contract an IT would be familiar with.
None of that really matters for an IT. Essentially the contract language will give the IS legal grounds to keep any money they havent already dispersed/paid to you, and allow them to avoid providing any benefits like return airfare, etc. Why? Because the IS can refuse and force you to use the legal system to get it. They are betting that you dont have the resources or the time to do that, and you cant just file a complaint and get the money.
If your smart you will not leave until you get your final salary dispersement for the year (meaning you might have to wait through the summer). If your IS was smart they probably have a clause/term/policy that allows them to hold your summer salary or a months salary or something until you actually return the following year.
If you leave there is very, very, very, very little an IS can do to collect any money from you. The cost and low probability of success (at least for westerners) is very prohibitive. The IS would have to file a civil suit against you in a location with jurisdiction, then they have to locate you to serve you. The typical standard in such cases is that the IS/employer has to prove that they actually suffered real economic damages. Thats very difficult to do. Even if they win they have to collect. They can send you a copy of the judgment or order or findings but if you throw it away and just refuse to pay then have to go through another costly and lengthy process of domesticating the judgement. Its not worth it to them.
Real World negative consequences are a poor/bad reference in addition to breaking contract. If this is a respected IS you will likely have to ghost the year. If its an IS with a poor/abusive reputation you can likely explain it away, turn it into a learning experience that had made you a stronger IT.
You arent lame, clauses and terms such as those that you described are common and non-negotiable, an IS isnt going to remove it just for you, even if you had asked. They will just say the contract language can not be modified, you either accept the contract as presented or reject the offer. ISs will negotiate compensation, contact obligations, and a few other factors, but not the legalese.
Legal standing wise:
1) Are you actually a foreign expert? Few ISs actually give you the little booklet. There are two types of employment permits. "Work" permits that are generally classified as those for unskilled workers and "Foreign Experts License" for skilled well experts. If your IS only applied for and received a work permit for you, then the SAFEA regulations dont apply to you, only the general labor regulations.
2) The shortest and easiest route of making a wages or workers claim for abuse by an employer is to file a claim with the Labor Arbitration Committee for your region. These are largely informal hearings that last less then a day and you dont need an attorney.
If youre unsatisfied with that result your next option of appeal is to file suite with the arbitration court. You will need an attorney for this.
3) These venues specifically hear labor/employment disputes your final route of appeal would be the intermediate peoples court. You may also file civil suite in the peoples court directly as a general civil compliant and skip the labor arbitration routes.
4) It is not uncommon for employers and ISs to file criminal complaints when labor cases are filed. These can get risky for you, and you could be barred from leaving the country while under investigation.
The practical issue is whether your intent is to stay or leave China. if you stay use the legal process, at least at the committee level. Many ISs will make a deal, just to avoid the loss of face and status. If your leaving read your contract and policies and make a plan that maximizes your income, even if it means just not showing up next year.
Chinese contracts for FEs (Foreign Experts) are actually two parts. The first part is the boiler plate, copy straight from the ministry. Its essentially a template, says how much you will be paid and the general conditions such as the IS/employer will introduce you to the cultural (legal) aspects of working in China. Its pretty short and pretty bland, about two pages. The second part of the contract is the "addendum" though it can go by several names and is the part that "looks" most like a contract an IT would be familiar with.
None of that really matters for an IT. Essentially the contract language will give the IS legal grounds to keep any money they havent already dispersed/paid to you, and allow them to avoid providing any benefits like return airfare, etc. Why? Because the IS can refuse and force you to use the legal system to get it. They are betting that you dont have the resources or the time to do that, and you cant just file a complaint and get the money.
If your smart you will not leave until you get your final salary dispersement for the year (meaning you might have to wait through the summer). If your IS was smart they probably have a clause/term/policy that allows them to hold your summer salary or a months salary or something until you actually return the following year.
If you leave there is very, very, very, very little an IS can do to collect any money from you. The cost and low probability of success (at least for westerners) is very prohibitive. The IS would have to file a civil suit against you in a location with jurisdiction, then they have to locate you to serve you. The typical standard in such cases is that the IS/employer has to prove that they actually suffered real economic damages. Thats very difficult to do. Even if they win they have to collect. They can send you a copy of the judgment or order or findings but if you throw it away and just refuse to pay then have to go through another costly and lengthy process of domesticating the judgement. Its not worth it to them.
Real World negative consequences are a poor/bad reference in addition to breaking contract. If this is a respected IS you will likely have to ghost the year. If its an IS with a poor/abusive reputation you can likely explain it away, turn it into a learning experience that had made you a stronger IT.
You arent lame, clauses and terms such as those that you described are common and non-negotiable, an IS isnt going to remove it just for you, even if you had asked. They will just say the contract language can not be modified, you either accept the contract as presented or reject the offer. ISs will negotiate compensation, contact obligations, and a few other factors, but not the legalese.
Legal standing wise:
1) Are you actually a foreign expert? Few ISs actually give you the little booklet. There are two types of employment permits. "Work" permits that are generally classified as those for unskilled workers and "Foreign Experts License" for skilled well experts. If your IS only applied for and received a work permit for you, then the SAFEA regulations dont apply to you, only the general labor regulations.
2) The shortest and easiest route of making a wages or workers claim for abuse by an employer is to file a claim with the Labor Arbitration Committee for your region. These are largely informal hearings that last less then a day and you dont need an attorney.
If youre unsatisfied with that result your next option of appeal is to file suite with the arbitration court. You will need an attorney for this.
3) These venues specifically hear labor/employment disputes your final route of appeal would be the intermediate peoples court. You may also file civil suite in the peoples court directly as a general civil compliant and skip the labor arbitration routes.
4) It is not uncommon for employers and ISs to file criminal complaints when labor cases are filed. These can get risky for you, and you could be barred from leaving the country while under investigation.
The practical issue is whether your intent is to stay or leave China. if you stay use the legal process, at least at the committee level. Many ISs will make a deal, just to avoid the loss of face and status. If your leaving read your contract and policies and make a plan that maximizes your income, even if it means just not showing up next year.
Re: China Employment Contract - SAFEA
Thank you for the detailed reply! I found the SAFEA document. I guess that is indeed in place.
I'll defintely stay until the end of the school year. I am due a final paymen in August that I reckon I won't get if I am not actually coming back?
I'll defintely stay until the end of the school year. I am due a final paymen in August that I reckon I won't get if I am not actually coming back?
Re: China Employment Contract - SAFEA
I could do that but I would have to sign the contract saying I will return. I'm trying to be an upstanding sort and not sign a contract I don't intend to fufill. :/ Thus, I'll probably just not get that payment.
Reply
@wt2015
I dont see how you can claim youre an upstanding individual, you have already stated that you signed a 2 year contract and are going to leave after this first year thus breaking the contract. Im sure you have reasons, but what would justify not getting paid for the year?
You worked all your duty days int he year and your IS annualized your salary over 12/13 months, so that August salary dispersal is for work you performed. If you want to let them keep it, thats your choice, but doing so doesnt make you a more noble IT or person.
I dont see how you can claim youre an upstanding individual, you have already stated that you signed a 2 year contract and are going to leave after this first year thus breaking the contract. Im sure you have reasons, but what would justify not getting paid for the year?
You worked all your duty days int he year and your IS annualized your salary over 12/13 months, so that August salary dispersal is for work you performed. If you want to let them keep it, thats your choice, but doing so doesnt make you a more noble IT or person.