Company refusing to hand over release letter...

[Matthewkell]

Hi,

 

My girlfriend is leaving her present employer within a few days and has accepted a job at a different school in a different city to begin in September. Her new employer is requesting the documents required to change to a new visa, all of which she has apart from the release letter and the cancellation receipt of her foreign expert visa. These documents are both ready, however the school is refusing to hand them over, saying that company policy is to to change to a 30 day stay permit immediately upon the leaving date.

 

Problem being, the 30 day stay permit cannot be changed to a work permit, so she needs the documents before she leaves the company in order to begin the transfer. Otherwise she will have to leave to her home country and apply again, in which case she may not be able to start her new job in time and it will be of great cost to herself. But they are outright refusing to hand over the documents.

 

I want like to know if this is legal or not. From internet research, I have found that it is against Chinese law to refuse to hand over the release letter within 30 days of the employee's leaving date, but everywhere I have seen this it is unclear if it means 30 days before or 30 days after the leaving date. Can anybody confirm this? This effectively means that the company is making it impossible to change employer in China without going back to their home country. Are we in a position to take legal action against the company or not?

[ChTTay]

I can't give you any legal information but getting into any kind of "legal battle" in China sounds like a nightmare.

I'd be tempted to try set up a meeting with someone at the school to try and resolve this. Explain the situation to them and see if you can work something out. If you've already tried this, is there anyone at the school who is more sympathetic to you or who you have a good relationship with that may be able to work on your behalf?

[Matthewkell]

The person responsible is new to the job and terrified of breaking company regulations, so she is determined to change it to a stay visa. There are plenty of people sympathetic to us, but nobody really seems sure about the law, and keep merely asking the company's central office in Shanghai who simply restate the company's policy of cancelling the residency permit and changing to a stay permit. The biggest problem is the time constraints, if she is to begin the application prior to being shifted to a stay permit she needs the documents by tomorrow pretty much. 

We were going to go to the PSB to find out about whether they can refuse to hand over the documents today, but unfortunately because she had stalled and kept us waiting for so long by the time she told us she would not give us them there was not enough time to get there before closing.  

[gato]

The usual procedure when switching between employers is to cancel the old work permit, while keeping the resident permit. The work permit has your old employer's name on it. Once it's cancelled, they don't have much more to worry.

You should go talk to this new person's boss, or boss's boss.

As a last resort, you can threaten to name and shame the school on the Internet and create a recruiting problem for them.

[vellocet]

The school MUST give a release letter.  They have no choice in the matter.  Go to the labor bureau and tell them the school is refusing to follow Chinese law.  If necessary, get a member of the labor bureau to accompany you to the school, right then and there. 

[edelweis]

@vellocet: this is interesting. Have you followed this course of action yourself on a previous conflict with a Chinese employer? What happened?

[j.k.j.D.D.]

Call SAFEA and they will force the school to give it to you.

[roddy]

A bit more detail on the processes here would be valuable....

[j.k.j.D.D.]

When I was in need of the release letter, after breaking contract a month early in my case, I just called up SAFEA for the city I live in. I told them the situation, and that the work conditions were less than favorable so I had to leave, and they said the school has to provide it. They first said they would give the school a call, and ask them to give it to me, and if the school refused then they could help me further. After a call from SAFEA, the school was more than willing to provide a letter of release (and did so within a few days), as they didn't want any legal issues themselves. The school is under no obligation to provide any letter of recommendation, but like Vellocet stated, they have to allow you to leave and have to provide a release letter.

 

If a school is unreasonable about these requests, it might also be worth adding them to one of the online blacklists, as it will help other teachers to know to avoid said school, as there are certainly a large number of shady schools out there.

[roddy]

Thanks, very useful.