Who this guide is for
Foreign managers and HR teams hiring ordinary employees through a mainland China entity. Different rules can apply to public-service appointments and special personnel. For a foreign national, work-permit conditions are an additional layer, not a substitute for employment-law compliance.
The statutory probation map
| Employment-contract term | Maximum probation |
|---|---|
| Less than 3 months | No probation |
| Contract based on completion of a specified task | No probation |
| 3 months to less than 1 year | 1 month |
| 1 year to less than 3 years | 2 months |
| 3 years or more, or open-ended | 6 months |
Article 19 of the Labor Contract Law also permits only one probation period for the same employee. A separate “probation agreement” does not postpone employment: if a contract provides only probation, that period is treated as the employment-contract term. A promotion, transfer or renewal is not a new opportunity to restart probation.
Pay and benefits during probation
Article 20 sets a floor: probation pay may not be lower than 80% of the minimum wage for the same position at the employer or 80% of the wage agreed in the employment contract, and it may not be below the local minimum wage. The statutory wording and local application should be checked when the two 80% reference points differ. Probation is part of employment, so payroll, lawful hours, rest, workplace protection and social-insurance obligations do not wait until confirmation.
Write the probation salary and post-probation salary clearly. Do not describe the difference as a “bonus” if it is really fixed salary. Keep payslips and the calculation against the current local minimum wage.
Build usable recruitment conditions before day one
Article 39(1) allows termination where the employee is proved not to satisfy the recruitment conditions during probation. The key words are proved, recruitment conditions and during probation. “Not a cultural fit,” a forced ranking, or goals invented after concerns arise are weak substitutes.
| Good evidence design | Risky design |
|---|---|
| Credential or license genuinely required for the role | Vague “international mindset” |
| Defined deliverables within the employee’s control | Revenue target with no territory, product or data |
| Safety, integrity or compliance requirement tied to the job | Manager preference created after hiring |
| Job-specific quality, accuracy or service standard | Bottom-ranked employee automatically fails |
Give the candidate the job description and recruitment conditions before or at signing, in a language they can understand, and retain acknowledgment. Confirm that the conditions are lawful, relevant and achievable within the probation window.
A review process that produces facts, not paperwork
- Week 0: agree the role, resources, supervisor, criteria and review dates.
- Early check-in: identify missing access, training or language support so the company does not confuse onboarding failure with employee failure.
- Midpoint review: record examples against each disclosed criterion; let the employee respond and set specific corrections.
- Decision review: check the exact contract term, probation end date, evidence, statutory ground, protected status and local procedure.
- Communicate in time: if using failure of recruitment conditions, make and deliver the decision during the valid probation period, state the reason in writing and preserve delivery proof.
- Close the file: pay earned amounts and issue exit documents; separately handle a foreign employee’s permits.
Do not manufacture a perfect record after the decision. Contemporary work samples, training records, specific feedback and the employee’s response are more useful than repeated generic ratings.
Probation dismissal is not one legal route
Article 21 limits employer termination during probation to the grounds identified there, including Article 39 fault grounds and specified Article 40 grounds. The employer must explain the reason. Failure of recruitment conditions differs from serious misconduct, inability to work after a medical period, or incompetence after training or reassignment. Each route has different facts and procedures; do not swap labels because one seems easier.
The Supreme People’s Court’s Guiding Case No. 18 is a useful warning outside and inside probation: a forced low ranking did not itself prove that the worker was incompetent. A manager should show what the job required and what actually happened, not merely the employee’s position in a distribution.
Hypothetical situations and decision checklist
Hypothetical 1: a US director gives every new hire six months’ probation, including a one-year contract. The maximum for that term is two months. At month five, probation cannot be used to justify dismissal.
Hypothetical 2: a sales employee misses a target because pricing approval and customer accounts were not supplied. The employer should separate resource failure from the employee’s ability before reaching a legal conclusion.
- ✓ Contract term and maximum probation checked
- ✓ One probation only, contained in the contract
- ✓ Pay floor and local minimum wage documented
- ✓ Recruitment conditions disclosed and acknowledged
- ✓ Resources and training recorded
- ✓ Dated reviews contain concrete examples
- ✓ Employee response preserved
- ✓ Ground, procedure and protected status reviewed
- ✓ Written reason and delivery method prepared before expiry
Official sources
General information only. This guide is not legal, tax or immigration advice. National rules, local implementation and the facts of a case can produce different results. Confirm time-sensitive procedures with the competent local authority or a qualified China professional.