What about oral agreements during probation periods?
(02.20.2008)

Question: Miss Li began to work for a joint venture this February. The company reached an oral agreement with her that the probation period shall be three months. In May, the company wanted to prolong the probation period for another three months, saying that Miss Li has incurred economic losses for the company in the course of her work. Recently, the company finally decided to sign a formal agreement with her, but the period of the labor contract lasts for one year and starts from this September. Miss Li wants to know whether this is legal?

Answer: As stipulated in the Regulations of the Shanghai Municipality on Labor Contracts, a probation period is a period of time agreed between the employer and employee for assessing the competence of the employee. The length of the probation period is determined by the period stipulated in the labor contract and shall not be included as part of the labor period.

- If the period of labor is less than six months, then there shall not be probation period.

- If the period of labor is more than six months and less than one year, then the probation period shall be no more than one month.

- If the period of labor is between one to three years, then the probation shall be no more than three months.

- If the period of labor is more than three years, then the probation period shall be no more than six months.

Therefore, the practice of Miss Li’s company has breached the regulations. Written labor contracts stipulate the rights and obligations of both parties. If an employer fails to sign a labor contract with the employee during the first few months, the employee should put forward this issue to their employer so as to protect his/her own rights.