Hiring Employees, Contractors, and Freelancers in China
The China Market Entry Handbook
19
Comprehensive Working Hours
System
The Comprehensive Working Hour
System refers to the comprehensive
calculation of working hours based on
the cycle of weeks, months, quarters,
years, or other predetermined amount
of time, but the average working hours
and the average weekly working hours
shall be the same as the standard
working hours.
Under a Comprehensive Working Hour
System, employers and employees
can set the number of working hours
worked per cycle according to PRC
Labor Law before statutory overtime
payments are invoked. Note, when
overtime payments are invoked, the
standard rates according to PRC Labor
Law is applied.
Enterprises in China can implement a
Comprehensive Working Hour System
for the following types of employees:
• Employees in transportation,
railway, post and
telecommunications, water
transportation, aviation, fishery
and other industries who need
to work continuously due to the
special nature of their work;
• Employees in industries restricted
by seasons and natural conditions,
such as geology and resource
exploration, construction, salt
production, sugar production, and
tourism; and
• Other employees who are suitable
for the implementation of the
comprehensive working hours
system.
A Comprehensive Working Hour
System must be approved by the
local Labor Bureau before they can be
utilized and may need to be renewed
annually.
Flexible Working Hours System
The Flexible Working Hours System
refers to that employees can choose
the specific work scheduleflexibly
and autonomously on the premise of
completing the prescribed work tasks
or fixed working hours, instead of the
unified fixed commuting time system.
Under this Flexible Working Hours
System, if the employee worked on the
weekend for the tasks, overtime pay
can be avoided.
Enterprises in China can implement a
Flexible Working Hour System for the
following types of employees:
• Senior management personnel,
field personnel, sales personnel,
on-duty personnel and other
employees who cannot be
measured by standard working
hours system due to the special
nature of their work;
• Long-distance transportation
personnel, taxi drivers, loading and
unloading personnel of railways,
ports, warehouses, and employees
who need mobile operations due
to the special nature of their work;
and
• Other personnel suitable for a
Flexible Working Hours System to
due to production characteristics,
special needs of work, or scope of
duties.
A Flexible Working Hours System must
be approved by the local labor bureau
before they can be utilized and may
need to be renewed annually.
Probation period
According to Article 19 of Labor
Contract Law of the PRC, the probation
period terms of a labor contract are
limited as follows:
• If the fixed term of the labor
contract is more than 3 months
but less than 1 years, the probation
period shall not exceed 1 month;
• If the fixed term of the labor
contract is more than 1 year but
less than 3 years, the probation
period shall not exceed 2 months;
• If the fixed term of the labor
contract is more than 3 years or is a
non-fixed-term labor contacts, the
probation period shall not exceed
6 months.
• During the probation period, the
employer shall not terminate
the labor contract unless the
employee falls under the following
circumstances:
• The employee is found not to meet
the conditions for employment
during the probationary period
or the employee satisfied the
criteria for immediate termination
outlined in Article 39 of the Labor
Law of the PRC;
• The employee cannot perform his
duties due to illness or injury, or,
determined to be unqualified after
training or adjusting the job.
• Employers may not stipulate a
probation period for fixed-term
labor contracts with a term of less
than 3 months and Task-based
labor contacts.
Confidentiality obligations and
non-competition clauses
Article 23 of the Labor Contract Law of
the PRC stipulates that an employer
and the employee may agree in the
labor contract on confidentiality
obligations and non-competition
clauses to protect the employer’s
business secrets and confidential
matters related to intellectual property
rights.
For employees who are obligated to
keep confidential information, the
employer may agree with the employee
to provide the employee a monthly
payment within the non-competition
period.
According to the Shanghai Higher
People's Court of Labor Judicial
Interpretation, if the labor contract
provides a non-competition clause
but did not provide details on the
compensation amount to the
employee, the employee can claim
non-competition compensation
through negotiation with the employer
during the non-competition period.
If an agreement through negotiation
fails, the non-competition payment to
the employee typically falls be between
20-50% of the worker’s previous normal
wages for a period of no more than
2 years. If the employee violates the
agreement, they shall pay the employer
damages in accordance with the
agreement.
The persons subject to restrictions on
confidentiality and non-competition
shall be limited to:
• Senior management;
• Senior technical personnel; and
• Other personnel with
confidentiality obligations to the
employer.
The confidentiality obligations and
non-competition period shall not
exceed two years.