China Employment Contracts: Do Not Try This At Home

Had a conversation the other day with the in-house counsel for a relatively small American company. This lawyer thanked me for the China Law Blog and said that he had used it to write his company’s employee contracts. I was stunned by this statement and to avoid me saying something I might later regret, I immediately changed the subject.

I have by now calmed down just barely enough to write this post.

Here is a list of the crazy risks this lawyer took by writing his company’s own China employment contracts, even though he clearly is not himself a China lawyer, nor does he have any real experience with China law:

1. He speaks no Chinese so whatever he wrote would need to be translated into Chinese (I am going to assume that he at least did this). Unless he hired an experienced Chinese employment lawyer to do the translation, the odds that the translation will actually work are about 10,000 to 1.

2. I wish that I had asked him whether he also drafted the Rules and Regulations for his company’s China employees. A China employment contract without Rules and Regulations is of virtually no value for a company. I’m betting that he did not.

3. Did his employment contract and Rules and Regulations include provisions regarding the FCPA, China anti-corruption laws, expense reimbursements, education reimbursements, housing reimbursements, overtime, vacations, bonuses, trade secrets, non-competes, etc.? If they did, what in the world made this lawyer think that he knew how any of these are supposed to work in China?

4. Did he check with the local labor bureau to determine its position on various employment law matters? These labor bureaus are all over the map on countless employment issues and the positions of these labor bureaus truly matters. I am virtually certain he did not.

One of our China-based lawyers, Grace Yang, spends several hours each week keeping up to date with China’s employment laws and regulations and maintaining strong contacts with local labor bureaus throughout China. She has conveyed a small portion of that knowledge via the following China employment law posts:

• Paying Your Non-Chinese Employees In Your China WFOE: Splitting The Salary, Part 1
• Paying Your Non-Chinese Employees In Your China WFOE: Splitting The Salary Part 2
• China’s Forty Hour Work Week Is Mandatory. Except When It’s Not.
• China’s Forty Hour Work Week Is Mandatory. Except When It’s Not. Part II.
• China’s Forty Hour Work Week Is Mandatory. Except When It’s Not. Part III.
• China Part-Time Employee Rules
• China Employment Offer Letters: Be Careful.
• China Employee Probation: Don’t Let It Slip Away
• China Non-Competes. Oh, Oh, The Price You’ll Pay
• China Employee Leaving Employment Early. Forget About Payment In Lieu Of Notice
• Your China Expat Employee Contract. It Depends….
• China Employee Vacations: Don’t Stop Them. Just Don’t.

Please understand that your reading all of the above posts will not give you the knowledge you need to draft a China employee contract, just as reading a medical book or two does not qualify you to perform surgery.