Employee Probation in China
1. How long is the employee probation period in China?
The probation period depends on the term of employment contract. The detailed rules are as follows:
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Term of the Contract
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Probation Period
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3 months≤term of contract < 1 year
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≤1 month
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1 year≤term of contract < 3 years
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≤2 month
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3 years≤term of contract
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≤6 month
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Open ended contract
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≤6 month
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2.
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Under what kind of situation probation period is not allowed?
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According to the Labour Contract Law of the PRC, no probation period is allowed for the following three types of employment arrangement:
(1)
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employment of a part-time employee
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(2)
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employment with a term of less than three months
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(3)
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employment whose term is based solely on the employee completing an agreed assignment.
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3.
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Is it ok to extend or set a new probation period for the same employee?
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An employer may agree on only one probation period with the same employee. In other words, you may not extend or set another probation period for the same employee after the expiration of the period. Even though the extended probation period will not exceed the statutory maximum, the extension of the agreed probation period may be deemed as another agreement on probation period, thus violating the mandatory provision.
4.
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Probation period should be included in the term of the employment contract or not?
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The probation period is deemed to be part of the employment period in accordance with the Labour Contract Law of the PRC. It must be set forth in the employment contract. A separate probation agreement will be void and there will be no probation period.
5.
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Can the employer unilaterally terminate an employee on probation without cause?
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According to the Labour Contract Law of the PRC, the employer may unilaterally terminate an employee that does not satisfy the recruitment requirements during the probation period. But the employer must prove the employee failed to meet the requirements. A well-documented discharge with detailed explanation for why the employee does not meet the expectations will significantly reduce the risks of later being sued for wrongful termination.
6.
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Can an employee on probation unilaterally terminate employment without cause?
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During the probation period, an employee may unilaterally terminate his or her employment with three days?notice, without need for giving any reason or cause, in accordance with the Labour Contract Law of the PRC.
7.
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Is it legal to buy social insurances for the employee after the expiration of his or her probation period?
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The employer shall buy social insurance for the employee from the commencement date of the employment in accordance the law of the PRC.
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