Although the graduation season has passing without knowing, many new graduates may still be struggling to find a job or nervous about their new workplace. Most professionals joined in new company may experience the probation period to adjust the environment, but the concepts of probation in Human Resources is fuzzy to them. Not only new employees, but also some companies have little knowledge about the relevant regulation and laws of probation, which would increase the risk in employment.  

Before we introduce the relevant regulations and laws of probation, we need to know what probation is.

The probation period is a duration that the new employee and the company both establish labour relation lawfully when in equal and voluntary negotiate the agreement to offer both a time that adapt each other.  

During probation, the company could examine the qualification of the employee, whether he or she adapt to company culture. In the meantime, the employee also can evaluate working condition of the company and the culture of the company. Additionally, probation is not necessary. If the employee and the company both agree to not have a probation period, then the probation period does not need to be signed. The same company and the same worker can only agree on one probation period, and the probation period is included within the term of the labour contract.

Please noted that although probation period is not necessary, but labour contract must not be exempt!

Some companies do not sign the labour contract with employees during the probation period, reducing the unnecessary labour cost and risk. But the opposite is true! According to the article 10 of the “Law of Labour Contract”, a labour contract shall be signed when employee and company establish the labour relationship. If a labour relationship is established without labour contract, the company would have to paid twice the monthly salary and sign an open-ended labour contract.  

The “Law of Labour Contract” also stipulates the length of probation to prevent employers from putting employees on probation or examining them for a long time.

Length of Employment Contract	Duration of Probation
More than 3 months but less than 1 year	Not exceed 1 month
More than 1 year but less than 3 years	Not exceed 2 months
A fixed term of not less than 3 years or an unfixed term	Not exceed 6 months
Less than 3 months	No probation period

What will happen if the probation period is illegally agreed upon?  

Article 83 of the “Law of Labour Contract” clearly states: "When an employer violates the provisions of this Law by establishing a probation period with an employee, the labour administrative department shall order it to make corrections; if the probation period illegally agreed upon has been fulfilled, employer shall pay compensation to the employee according to the monthly salary after the probation period has expired.”

Laws and regulations may be lengthy and difficult to understand, we would like to present an example below.  

The employer and the employee both signed one-year labour contact, but the probation period is 3 months. The salary during the probation period is RMB 3,200, and the salary after probation would be RMB 4,000.

Base on the “Law of Labour Contract”, the maximum of probation period is 2 months when the length of the labour contract is 1 year. Since the employers has agreed on a three - month probation, the extra one month is the “illegal probation period”. If the employer has fulfilled the “illegally agreed probation period” and has paid the salary during the probation period, it shall make up to RMB 4,000.

Since many companies do not know the relevant regulations, they do not pay social security during employee’s probation period. Not paying social security during employee’s probation is illegal. The “Law of Social Insurance” has clearly state the in article 58, “The company and the employee ought to apply social security within 30 days from the start day of the employment in the local social security department”. The probation period is included within the scope of the labor contract period, so the employer should also pay social security during the probation period of employment.

Not paying or less paying salary during the probation period is also a pervasive phenomenon in the society. In article 20 of the “Law of Labor Contract”,  it is stipulated that, “The salary of the workers during the probation period shall not be lower than the lowest wages of the same position in the company or 80% of the salary agreed in the labor contract, and shall not be lower than the minimum wage standard of the place where the company is located”.

During the probation period, the employer shall not dismiss the employee without any reason. The employer may terminate the labor contract under the following circumstances:

1. It is proved that the applicant does not meet the requirements for employment during the probation period
2. Seriously violates the rules and regulations of the employer
3. Serious dereliction of duty and malpractice for selfish ends caused great damage to the company  
4. The worker establishes labor relations with other company at the same time, which seriously affects the completion of the work tasks of the company, or refuses to correct upon the request of the company
5. Being investigated for criminal responsibility according to law

In Article 1, “the requirements for employment” can be signed at the same time as the employment contract signed or on the job recruitment requirements. And during the probation period, it is necessary to strictly follow the signed records of assessment requirements to prove whether the conditions of employment are met.