Working Abroad – Should I sue my employer?
Working in China as a foreign national is a great experience for many. However, when employment issues arise, it can quickly become a nightmare. Over the years, I have noticed that the misunderstandings and questions are recurring. Thus, I created this series “Working Abroad in China” which explores and discusses some key matters foreign employees should know. As an employment law firm, we frequently get approached by foreign employees requesting to sue their employer. Should a foreign national sue his employer when a dispute occurs?
The answer is: likely not.
Let me elaborate
My law firm[NG1] rarely takes foreign employees’ cases. It is not a question of whether or not we want to, simply that most times, it is not worth it for the employee. We sometimes do a few hours of consulting to prepare an employee for an important discussion with its employer or to address key concerns. However, litigation cases representing foreign employees are rare. The main reason is generally financial; when calculating the legal, translation and notarization fees, only to cite a few of the related costs, it usually amounts to an expensive sum. More often than not, the remaining amount after all the expenses is not enough for the time and risk involved in labor arbitration and/or litigation. In simpler cases, Chinese employees can get away with representing themselves, however without knowledge of Mandarin, foreign nationals do not have this option and need to rely on law firms. Below is a simplified way to evaluate if legal actions are worth it:
(Winning amount x chance of winning) – lawyer’s fee – other fees
We understand that a disagreement or dispute with an employer in a foreign country can be emotionally demanding. Below are two tips for these situations:
(1) Calm down and stay level-headed. It can be very stressful and there can be serious consequences. However, nurturing anxiety or anger will not solve the matter. As stated before, go straight to the sources and determine the facts[NG2] . Ask yourself if you are in the right and if you have evidence. If so, can you realistically do something about it? In some cases, it is worth it to book an hour or two with an experienced employment lawyer [NG3] to have a clear picture of the situation.
(2) Do not unnecessarily escalate the situation, particularly in a way that makes a decision-maker look bad. It can be frustrating when employers behave unlawfully; the foreign employee feels its unfair. However, there are areas where the employer is at a clear advantage and the foreign employee is vulnerable. Escalating a specific matter and making it public to other employees can force the employer into a corner where they may prefer to lose money to labor arbitration in lieu of setting a precedent for other employees. Furthermore, by wreaking havoc, the foreign employee might be seen as foolish and alienate himself from other employees. Letting a matter escalate publicly is a strategic approach that must be used only after analysing the facts and evaluating it to be the best approach.
This article is unfortunately gloom, however not all hope is lost. Approaching the case properly can drastically increase the chance of solving the disagreement[NG4] . For example, taking a firm stance based on facts and negotiating with the employer to solve the matter rather than to win could be a good tactic. In other situations, the foreign employee should have recognized the situation earlier and either not taken the position or cut their loss and find a new employment as soon as the employer did not respect the law and/or the agreement. All in all, before deciding to go to war, consider if the potential gain is truly worth it.
This article is a vulgarization of laws and regulations and does not constitute legal advice. The author is not responsible for any loss caused by using any information provided in this article. For more information please contact Normand@Laodongfa.com.
For all intent and purpose, the term China in this article refers to the People’s Republic of China.