Summary: If unpaid, assess leaving; prioritize job transfer for foreigners in China. Unpaid wages can be claimed within one year via labor arbitration. Employer must prove payment; employee needs contract proof. Resignation doesn't forfeit wage rights.
We have received numerous inquiries recently: "My employer hasn't paid me for two months. What should I do?"
Now, let's explain the key points to note and the step-by-step actions you should take:
1. First, decide: Should I stay or leave?
Generally, an employee's salary is paid by the 15th day of the following month. This means that if you find you haven't received your salary for the previous month, you have already worked for your employer for at least 8 to 10 days in the current month—and there's a chance you won't be paid for this month either. At this point, deciding whether to stay or leave becomes a critical issue.
If you can confirm that this is only a temporary situation—such as cash flow shortages due to an emergency—you may choose to stay. Otherwise, you might consider finding a new job and resigning.
However, it's a mistake to stay because you're worried about not receiving the unpaid salary.
If the company is facing financial difficulties, the longer you stay, the more you stand to lose.
Honestly, if you haven't been paid for some reason, staying with the employer won't increase your chances of getting the owed salary. In other words, resignation is not a valid reason for an employer to refuse payment. In fact, as long as you have fulfilled your job duties properly, no circumstance can justify an employer's failure to pay you.
We will further explain why you should firmly resign in Section 3.
2. If you decide to resign, prioritizing a smooth job transfer is key
For most foreigners working in China, the biggest challenge is not finding a new job, but completing the job transfer procedures. Some employers are reluctant to issue a release letter and cancel the work permit, even when the employee legally notifies them of their intention to resign. A smooth job transfer is sometimes the top concern for foreigners working in China.
Therefore, it's a wise move to try your best to maintain a good relationship with your employer and negotiate a smooth job transfer.
We have seen some consultants advise foreigners to use Article 38 of the Labor Contract Law of the People's Republic of China as a basis to resign and claim compensation later. We believe this is not a good idea and is irresponsible to those seeking assistance.
The reason we never recommend Article 38 to foreigners is that, unlike Chinese citizens, foreigners need to go through more complex and time-sensitive procedures to continue working legally in China. We don't want to complicate matters when time is of the essence.
Thus, exercise caution if you intend to rely on Article 38!
3. What about the unpaid salary?
Another important reason employees are unwilling to resign is the fear that they will lose the right to claim unpaid salary once they leave.
According to relevant laws, the time limit for initiating a labor dispute arbitration is one year. This means you can claim the unpaid salary from your former employer at any time within one year. Once you have settled into your new job, you can consult a lawyer and file a labor arbitration case.
Then comes another question: How can I prove the amount of unpaid salary?
Typically, you don't need to worry about this. In such cases, all you need to do is prove that you had an employment relationship with the employer and the agreed salary amount—a signed labor contract will be sufficient.
You are not required to prove that you were not fully paid. It is the employer's responsibility to prove that they have paid you in full.
If the actual amount you received is higher than the amount stated in the labor contract, you will need to prove this with supporting documents such as bank statements or payroll slips.
As we mentioned earlier, the most important thing is to complete the job transfer in a timely manner. You don't need to worry excessively about the unpaid salary—technically, you don't need to take any additional actions before resigning, such as asking the former employer to write a payment promise or provide a financial statement detailing the owed amount.
The purpose of labor laws is to protect employees. If an employer is found to have failed to pay full wages, the law will force them to make the payment in accordance with regulations. There is no need for undue anxiety.
Relevant Provisions in the Labor Contract Law of the People's Republic of China
Article 85: Where an employer falls under any of the following circumstances, the labor administrative department shall order it to pay labor remuneration, overtime pay, or economic compensation within a time limit; if the labor remuneration is lower than the local minimum wage standard, the employer shall pay the difference. If the payment is not made within the time limit, the employer shall be ordered to pay additional compensation to the worker at a rate of not less than 50% but not more than 100% of the amount payable:
Failing to timely and fully pay labor remuneration to the worker in accordance with the provisions of the labor contract or the state;
Paying the worker a salary lower than the local minimum wage standard;
Arranging overtime work but failing to pay overtime pay; or
Terminating or rescinding the labor contract without paying economic compensation to the worker in accordance with this Law.
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