Can you terminate a job at will during a probationary period and not sign a contract? These are the things you need to know.

Can you terminate a job at will during a probationary period and not sign a contract? These are essential points you must know.

Regarding the probationary period

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The length of the trial period cannot be set arbitrarily!

Article 19 of the Labor Contract Law stipulates

For employment contracts with a term of three months or more but less than one year, the probationary period shall not exceed one month.

For employment contracts with a term of one year or more but less than three years, the probationary period shall not exceed two months.

For fixed-term employment contracts of three years or more and open-ended employment contracts, the probationary period shall not exceed six months.

A probationary period may not be stipulated in labor contracts with a fixed term based on the completion of a specific task or in labor contracts with a term of less than three months.

Please note!

The same employer and the same employee

Only one trial period can be agreed upon.

If an employer transfers an employee to another department after the employee has been officially hired and then uses this as grounds to request an additional probationary period, this behavior is illegal!

For part-time employment, both parties are not allowed to agree on a probationary period.

What standards should be used to pay wages during the probationary period?

Article 15 of the Implementing Regulations of the Labor Contract Law stipulates

Wages of workers during the probationary period

Not lower than

80% of the lowest wage for the same position in this company.

Or not lower than

The employment contract stipulates 80% of the wage.

and shall not be lower than

The minimum wage standard in the location of the employer

Do I need to sign an employment contract during the probationary period?

The Labor Contract Law stipulates that an employment relationship is established between an employer and an employee from the date of employment. A written labor contract must be concluded to establish an employment relationship. If an employment relationship has been established but a written labor contract has not been concluded simultaneously, a written labor contract must be concluded within one month from the date of employment.

If an employer fails to enter into a written employment contract with an employee within one month but less than one year from the date of employment, the employer shall pay the employee twice the monthly wage.

Therefore, the trial period

A labor contract must be signed!

Is it possible to sign a separate probationary period contract?

Don't sign!

According to Article 19 of the Labor Contract Law, the probationary period is included in the term of the labor contract. If the labor contract only stipulates a probationary period, the probationary period is invalid, and that period shall be considered the term of the labor contract.

Can you dismiss someone at will during their probationary period?

No.

Termination of employment contract during the probationary period is subject to conditions!

An employee may terminate their employment contract by giving the employer three days' notice during the probationary period.

During the probationary period, employers may not terminate the employment contract unless the employee falls under the circumstances stipulated in Articles 39 and 40, Paragraphs 1 and 2 of the Labor Contract Law. If an employer terminates an employment contract during the probationary period, they must explain the reasons to the employee.

Legal provisions link

Labor Contract Law

Article 39 An employer may terminate an employment contract if the employee falls under any of the following circumstances:

(i) Those who are found to be unqualified for employment during the probationary period;

(ii) Seriously violating the employer's rules and regulations;

(iii) Serious dereliction of duty, embezzlement, or other misconduct that causes significant damage to the employer;

(iv) If an employee establishes an employment relationship with another employer at the same time, which seriously affects the completion of their work tasks for the current employer, or refuses to rectify the situation after being requested to do so by the employer;

(v) Where the labor contract is invalid due to the circumstances stipulated in Article 26, Paragraph 1, Item 1 of this Law;

(vi) Those who are held criminally liable in accordance with the law.

Article 40. Under any of the following circumstances, an employer may terminate an employment contract after giving the employee 30 days' written notice or paying the employee an additional month's wages:

(i) If a worker is unable to perform his or her original work or any other work arranged by the employer after the expiration of the prescribed medical treatment period due to illness or non-work-related injury;

(ii) The employee is unable to perform the job duties and remains unable to perform the job duties even after training or a change in job position;

(iii) If a significant change occurs in the objective circumstances upon which the labor contract was based, rendering the labor contract impossible to perform, and the employer and the employee fail to reach an agreement on amending the content of the labor contract after consultation.

If an employee resigns during their probationary period for personal reasons,

Do I need to pay the employer a penalty for breach of contract?

Article 25 of the Labor Contract Law stipulates that, except as provided in Articles 22 and 23 of this Law, employers shall not agree with employees that the employees shall bear liquidated damages.

Therefore, regardless of whether it is during the trial period

Employee resigns for personal reasons

Except for the above-mentioned statutory circumstances

Generally, it is not necessary to pay liquidated damages to the employer.

Legal provisions link

Labor Contract Law

Article 22 Where an employer provides special training expenses for an employee to conduct professional and technical training, the employer may enter into an agreement with the employee to stipulate a service period.

If an employee breaches the service period agreement, they shall pay liquidated damages to the employer as agreed. The amount of liquidated damages shall not exceed the training expenses provided by the employer. The liquidated damages demanded by the employer from the employee shall not exceed the pro-rata share of training expenses attributable to the unfulfilled portion of the service period.

If an employer and an employee agree on a service period, it will not affect the increase of the employee's remuneration during the service period in accordance with the normal wage adjustment mechanism.

Article 23 Employers and employees may agree in the employment contract on matters concerning the protection of the employer's trade secrets and intellectual property rights.

For employees with confidentiality obligations, employers may include non-competition clauses in the employment contract or confidentiality agreement, stipulating that the employer will provide the employee with monthly economic compensation during the non-competition period after the termination of the employment contract. If an employee violates the non-competition agreement, they shall pay liquidated damages to the employer as agreed.

Employers illegally stipulate a probationary period with employees.

What legal responsibilities should they bear?

Article 83 of the Labor Contract Law stipulates that if an employer violates the provisions of this Law by agreeing with an employee on a probationary period, the labor administrative department shall order it to make corrections; if the illegally agreed probationary period has already been performed, the employer shall pay the employee compensation based on the employee's full monthly wage at the end of the probationary period, calculated according to the period exceeding the statutory probationary period.

(Source: WeChat Official Account of the Ministry of Human Resources and Social Security)