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Rules of layoffs under the chinese labor contract law

作者:匿名 日期:2021/06/28



A few days ago, I received a phone call from a friend. His company needs to lower the HR cost and optimise the staff efficiency. He has been working on the budget for the layoffs and asked me the following questions:


Q

Is there a proportional requirement for layoffs?

Yes, there is.

Article 41 of Chinese Labor Contract Law: If any of the following circumstances makes it necessary to reduce the workforce by 20 persons or more, or less than 20 persons but accounting for 10% or more of the total number of employees of the Employer, the Employer may only do so after it has explained the situation to the labor union or to all of its employees 30 days in advance, has considered the opinions of the labor union or the employees, and has submitted its workforce layoff plan to the labor administrative department:
1. restructuring pursuant to the Enterprise Bankruptcy Law;
2. serious difficulties in production and/or business operation;
3. the enterprise switches production, introduces significant technological innovation or adjusts its business model, and still needs to reduce its workforce after amending the labor contracts; or
4. a material change in the objective economic conditions relied upon at the time of conclusion of the labor contracts renders it impossible for the parties to perform.

The employer is required to go through certain legal procedure for the termination of the labor contract with the laid-off staff, pay economic compensation to the laid-off staff in accordance with relevant regulations, and issue a layoff employee certificate.

The feature of economic layoffs is that a written agreement with the employees is NOT required. Otherwise, the layoff procedure is unnecessary (will explain in the question below).

Q

Is it necessary to meet the proportional requirement after reaching written agreements with the employees?

No, it is not.

Article 36 An Employer and an employee may terminate their labor contract if they so agree after negotiation.

Signing the "Labor Contract Termination Agreement" is NOT a  "layoff". If the company has a small number of employees, it is recommended to conduct one-one meeting with employees to reach consensus, rather than resort to economic layoffs.

Q

What is the amount of economic compensation for the termination of labor contract?

It is a bit complicated to explain the rules in detail here. The amount depends on the seniority, the monthly salary, the average salary of the city etc. It is better to talk with a lawyer for a case by case consultation. 

But in general, the rules are as follows:

Article 47 An employee shall be paid financial compensation based on the number of years he has worked for the Employer at the rate of one month's wages for each full year worked. Any period of not less than six months but less than one year shall be counted as one year. The financial compensation payable to a worker for any period of less than six months shall be one-half of his monthly wage.

If the monthly wage of a worker is three times greater than the average monthly wage in the previous year for employees as announced by the government at the municipal level directly under the central government or at the city-with-district level where the Employer is located, the rate for the financial compensations paid to him shall be three times the average monthly wage of employees and shall be for not more than 12 years of work.

The term "monthly wage" as mentioned in this Article refers to the worker's average wage for the 12 months prior to cancellation or termination of his labor contract.

Article 87 If an Employer cancels or terminates a labor contract in violation of this Law, it shall pay the employee double the amount of damages provided for in Article 47 hereof.

Article 40 An Employer may cancel the labor contract under any of the following circumstances by giving the employee 30 days' prior written notice or one month's wages in lieu of notice:

1. where the employee is unable to resume his original work nor engage in other work arranged for him by the Employer after the expiration of the prescribed medical treatment period for an illness or non-work-related injury;

2. where the employee is incompetent and remains incompetent after training or adjustment of his position; or

3. a material change in the objective circumstances relied upon at the time of conclusion of the labor contract renders it impossible for the parties to perform and, after consultation, the Employer and the employee are unable to reach an agreement on amending the labor contract.

Summary

Economic layoffs usually happen in urgent senarios. When there is a large number of employees, the employer is unable agree on the economic compensation with the  employees one by one in a short period of time. In such case, the company will conduct economic layoffs  procedures in order to avoid the potential risk of paying the employees the double the amount of damages .


But for small businesses enterprises, it is feasible to communicate with the employees one by one and reach a written termination agreement on the amount of compensation. Not only can this minimize the risk of labor arbitration and litigation, but also can it resolve the company's internal personnel issues in a most efficient way.

Registered PRC lawyer

Sabrina Zhou

Shanghai Guoyu Law Firm

Sabrina specializes in foreign direct investment, M&A, outbound investment, and general corporate. 

She has represented numerous international clients and large domestic companies in various M&A and foreign direct investment deals, providing legal services and overall solutions covering deal structure initiation, participation of key deal decision making, negotiation, draft and implementation of transaction documentation, as well as company operation.

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