Shangahi Employment Contract

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Shanghai labor lawyer

Our Shanghai employment lawyer explains how a well drafted Shanghai employment contract is import to firms. A recent outplacement client of our Shanghai law firm called to let us know how excited he was to receive a very generous offer from a potential employer. Multiple phone screens, rescheduled interviews, in-house interviews, group and video interviews finally led to an offer.

The company faxed over a 12-page employment agreement. Stunned by the length, he called us. He said: "How do I interpret this thing? I need a law degree!" Fortunately, the offer was clearly stated and after a short counter-offer, our client accepted the assignment and the terms.Many people at all levels of search put very little into thinking about the what-ifs of or details in the employment contracts. Most in search focus their efforts on obtaining quality interviews if they really are smart. Jobseekers in general don't even think about the nuances of offers or really how much money, benefits and opportunities they will leave on the table during the negotiation process. Negotiation processes start the moment you decide to search, the second you release your resume to an employer.

Here are a few questions we ask our senior level jobseekers:

  1.     Who has more lawyers, you or a prospective company seeking qualified applicants?
  2.     Who is more prepared to negotiate the terms of any employment agreement, you or the prospective company or organization you propose to work for next?
  3.     Who is most likely better equipped to control the conversation during the initial stages of the interview, the middle stages and the offer/counter-offer stages?
  4.     How much power and control do you have during the process of the interview?
  5.     Legally, what questions can an employer ask you? What are the gray areas that they probe for and hope you offer information on?
  6.     How can you guide the discussion with an employer that will influence your offer and tip the scales more in your favor as a jobseeker?
  7.     How can you avoid damaging your offer?
  8.     How can you guide negotiations by providing outstanding written documentation and detailed reference information to build you argument for a higher salary band and more attractive overall offer?


Yet it never surprises me to see the look on the faces of many of our clients or groups we speak to about these issues. It does not seem to matter if you make six figures plus or you are early in your career life. One of our clients said it this way: "The song remains the same; employers play the music and you gotta dance to it." Well, at least that's how it feels in what we call an employer's market. An employer's market means this: for every quality position that will be advertised there are a very high number of at least minimally qualified applicants. That means that unless you have a totally unique skill set you will not and should not expect to be in rare air. In other words, lots of competition exists today for any quality position advertised.

Some of the key elements of an employment contract should be understood during the interview and hiring processes. Any employer's employment contract should define conditions of employment. These conditions usually cover salary/wages, work time commitments, hours, nature and type of work. As you look below keep in mind that an employment contract may include features that come within the common-law rights. If you are in a high-technology field or very creative endeavor you really need an employment law attorney to understand if you would be able to own the right to ideas, inventions, or discoveries. Many claim that ideas and inventions that are the incidental result of employment the rights belong to the employee unless otherwise specified in the employment contract. This will be debated.

Many employers but not all will further define and delineate key conditions of employment that may follow these parameters:

    Terms and Conditions of Employment: this may include compensation and duration of employment. Issues in this area include: Effective Date; Duration; Termination Date; Salary; Benefits/Retirement.

    General and Specific Responsibilities and Duty Performance Expectation Basics.

    Compensation-salary, special expenses such as auto, allowances, relocation, moving, and such. Other items that may or may not be detailed in this category include: bonuses including sign-on bonuses, incentives or inducements, stock options, salary deferment plans, disability, health and retirement.

    Non-Compete Clauses: issues that follow non-compete clauses could lead to endless discussion. For the most part, non-competition clauses haven't won many court battles historically; however, courts seem to be enforcing these clauses more and more under certain conditions/circumstances. By design, they intend to project the legitimate interests of the employer. Define legitimate interests. Other issues courts may consider here include: employee's ability to earn a livelihood, the nature of the activities it affects, its impact on the general public, and more. In most cases we see that non-competes want a period of time-perhaps one to two years-of restraint on competitive activity, especially as it weighs on geographic scope. What companies try to protect include: trade secrets, confidential information, customer relationships, goodwill, unique or extraordinary skills.

    Termination Provisions that may cover duty and performance parameters; financial/reorganization issues. Executive or other employees may have a more detailed outplacement plan that speaks to employee terminations by disagreement or dispute.

If you feel relieved that you don't really have a very big, long-winded employment agreement you may want to think again. Remember that employer's verbal suggestions or promises of job protection during an interview don't always make it to the employment agreement or the warm feeling employee handbook. Spoken provisos that seemed to indicate to your ears a definite term of employment won't be an area where employer's want to be pinned down or caught in some legal argument. If expectations aren't clearly defined in a comprehensive employment agreement, then the law defines the space. Then you should know that you have rights but you probably don't have the advantage.

Consult our English speaking Shanghai lawyers for free preliminary consultation. Shanghai lawyer reminds you that the law discussed above may change over time and may not apply to current situation when you read this blog.

Read 3474 times Last modified on Sunday, 27 November 2016 03:09
Shanghai Lawyer

Call Mr. Peter Zhu at +86 188 19019636, a Senior Shanghai lawyer, for free preliminary consultation. Email: peterzhulaw@hotmail.com

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