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China Part-time Employees: The 101
As a China employer, you should you have a written employment contract with your part-time employees, even though Chinese labor laws do not require it, for the reasons set forth below.
First, the rules in your locale (e.g., Shanghai) may require you to have a written contract if your part-time employee requests one, so you may as well be prepared. Being able to present a contract to your potential hiree shows you are prepared and know how things work in China. If your employee becomes convinced that you (a foreign employee) don’t know how Chinese employment laws work, you could be setting yourself up for future problems. Chinese employees file more grievances against foreign employers than their Chinese counterparts, especially against those they perceive as not understanding China.
Second, a written contract can be used to make your part-time employee’s work responsibilities and obligations clear. Performance issues are more likely to arise when your employee is unclear on what he or she has been hired to do.
Third, written contracts are the best way for you to protect your confidential information, trade secrets and intellectual property from exposure by your employee, part-time or otherwise. A written contract and an enforceable damages clause written to deter your part-time employee from stealing your IP, trade secrets or confidential information can go a long way towards preventing your employee from taking these things to his or her next employer.
But if it’s not done right, a written employment contract can actually backfire. For example, under China’s Labor Contract Law, a part-time employee can work no more than four hours a day and no more than 24 hours in a week and most municipalities enforce this. So if your contract with one of your part-time employees provides that he or she must work 35 hours a week, you are at risk of converting that employee to a full-time employee. And that now full-time employee could sue you for all the unpaid social insurance benefits you were supposed to pay but never did and the labor bureau almost certainly will also fine you for having failed to make mandatory social insurance contributions. Or even worse, it can suddenly become incredibly difficult or even impossible for you to terminate your employee because not only did your bad contract convert your employee to a full-time worker but it also was an open-term contract. See China Employment Contracts: Ten Things To Consider.
If you have any part-time employees or if you plan to hire any part-time employees, you also probably should add a section to your rules and regulations regarding such employees. The reason for this is simple: China-based employers must provide all of its employees with a copy of the employer rules and regulations and all of its employee will be subject to these rules and regulations. If you don’t make clear that certain company benefits are not available to your part-time employees, you are setting up your part-time employees to believe and then to argue that they are entitled to those benefits because your rules and regulations essentially say that they are. You also should make sure that your rules and regulations do not opt your part-time employees out of any mandatory benefits to which they are entitled, such as work-related injury insurance. Lastly, you should be sure to to follow all of the formalities and make all of the filings required by your local labor authorities.
Bottom line: Part-time employees have their own special issues in China and you ignore them at your peril.
We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.
Source: http://www.chinalawblog.com/2016/09/china-part-time-employees-the-101.html
