[Direct answer]In the Beijing area, whether an employer can terminate a labor contract when an employee is detained administratively is not a straightforward matter. Administrative detention is an administrative punishment rather than a criminal punishment. Employers cannot directly invoke Article 39(6) of the Labor Contract Law of the People's Republic of China, which stipulates that "the employee is held criminally liable according to law", to terminate the contract based solely on the fact that the employee has been detained. However, if the employer's legally established rules and regulations explicitly stipulate "being detained administratively" as a serious disciplinary violation through democratic procedures, and the termination process is legal and the facts are clear, arbitration institutions and courts may support the termination. Conversely, if there is no regulatory basis or the regulations have not undergone legal procedures, the termination will likely be deemed illegal, and the employee may claim to continue performing the contract or request compensation (double the standard of economic compensation) in accordance with Articles 48 and 87 of the Labor Contract Law of the People's Republic of China. It is recommended that employers review the regulations and evidence before terminating the contract, and employees should retain the detention decision and termination notice to protect their rights. For more details, please refer to the following link:Labor arbitration and legal services for work-related injury compensation.

I. Problem Background and Typical Scenarios

In practice, it's not uncommon for employees to be detained by public security authorities for reasons such as brawls, drunk driving, and gambling. The employer often issues a termination notice on the grounds of "serious violation of discipline" and "damaging the company's image". Typical scenarios include: employees in service industries such as catering and security being detained during night shifts; sales staff being detained for personal misconduct affecting their attendance; and management personnel being detained and then dismissed by the employer. The disputes in such cases focus on whether "administrative detention equals a serious violation of discipline" and whether the employer's rules and regulations have clear provisions on this matter. Many employers' employee handbooks do not list administrative detention as a reason for termination, or the rules and regulations have not undergone democratic procedures and public announcements. After termination, it's easy to be deemed illegal. When encountering such problems, it's advisable to first understand the relevant laws and regulations.Beijing Henglu Law FirmYou can also refer to the response strategies mentioned above for reference.Creditor-debtor relations and enforcement case servicesThe evidence-based reasoning in the article.

II. Key points of contention

The core disputes in such cases include three aspects: First, whether the institutional basis exists and is legal. The employer must prove that the employee handbook and other rules and regulations have undergone democratic procedures such as discussion by the workers' representative conference or all employees, and have been publicized or notified to the employees; if there is only an internal notice without going through democratic and publicity procedures, it is difficult to use it as a basis for termination. Second, the correlation between administrative detention and serious disciplinary violations. Whether short-term detention is sufficient to affect the performance of the labor contract and whether it reaches the "serious" level needs to be judged comprehensively based on the nature of the position, the detention time, and the consequences. The court usually makes a cautious determination. Third, whether the termination procedures are in place, including prior notification to the trade union, evidence fixation, and service. Procedural defects may also lead to illegal termination. The allocation of relevant evidentiary responsibilities can be referred to for reference.Business and contract dispute services for enterprises.

III. Professional analysis by Henglue Lawyers

We once handled a dispute over the illegal termination of a labor contract: an employee in a food sales position, with a monthly salary of about 12,000 yuan, was dismissed by the employer on the grounds of false expense write-offs and serious dereliction of duty. The employee entrusted a lawyer from Beijing Henglu Law Firm to protect his rights. The lawyer refuted the employer's claims one by one, pointing out that although the employer deducted the employee's performance bonus according to the assessment, it had not been explicitly approved by the employee, and the employer failed to prove that the "serious dereliction of duty" on which the termination was based had caused substantial losses. Therefore, the termination lacked factual and legal basis. After trial, the court ruled that the employer's termination lacked basis and constituted an illegal termination, ordering the employer to pay compensation of tens of thousands of yuan. This case shows that: the employer's unilateral termination must be based on clear facts and established systems, otherwise it will bear the liability for illegal termination. In cases involving wage arrears and compensation in parallel, the two can be combined for consideration.Special services and other case servicesLet's sort things out together.

IV. Practical suggestions and legal basis

In terms of legal basis: Article 39 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012) lists the circumstances under which an employer may terminate the employment contract. Item (2) of the list is "seriously violating the employer's rules and regulations", and Item (6) is "being held criminally liable according to law". Administrative detention does not constitute criminal liability, so it cannot be directly applied to Item (6). Article 4 of the Labor Contract Law of the People's Republic of China stipulates that the rules and regulations must go through democratic procedures and be publicly announced. Article 43 of the Trade Union Law and the Labor Contract Law require that the employer notify the trade union before terminating the employment contract. Articles 48 and 87 stipulate that if the employer terminates the contract illegally, the employee may request the employer to continue to perform the contract or pay compensation at twice the standard of economic compensation. Practical advice: Before terminating the contract, the employer should verify the rules and evidence, and comply with procedures such as notifying the trade union. Employees should collect the detention decision, the termination notice, the rules and regulations, and the salary records, and apply for arbitration in time to avoid exceeding the one-year arbitration statute of limitations.

5. Henglu Law Firm's Reminder

Administrative detention does not necessarily result in the loss of employment. The unit's decision to terminate the employment contract must be based on clear legal provisions, follow established procedures, and be supported by clear facts. After an employee is detained, they should rationally distinguish between the two legal relationships of "administrative punishment" and "termination of the labor contract", and never assume that the unit can arbitrarily dismiss them. On the other hand, the unit should avoid using this opportunity to terminate the contract without proper grounds, otherwise it will face the risk of compensation. In the event of a dispute, it is important to secure evidence as soon as possible, consult a professional lawyer, and comply with the one-year arbitration time limit. In similar cases handled by our firm, many terminations that lack legal and factual basis have been ruled invalid. Professional intervention can help clarify rights and responsibilities.

This case is handled by Beijing Henglu Law FirmChen PingThe attorney (practice license number: 11101201411619680, subject to the document issued by the judicial administrative organ) acts as the agent.

VI. Frequently Asked Questions

Q1: Is it certain that someone who has been administratively detained will be dismissed?

Not necessarily. Administrative detention is an administrative punishment imposed by public security organs, which does not equate to criminal accountability. It cannot be directly applied to the termination ground stipulated in Article 39(6) of the Labor Contract Law of the People's Republic of China, which states that "the employee is subject to criminal prosecution according to law". To lawfully terminate the contract, the employer must prove that its rules and regulations were formulated through democratic procedures and have been publicly announced, and explicitly list "being subject to administrative detention" as a serious disciplinary violation; at the same time, the termination must be clear in fact and comply with legal procedures (notifying the trade union and delivering the termination notice). If any of these steps are missing, there is a risk that the termination will be deemed illegal. After the employee is terminated, he/she may apply for labor arbitration within one year from the date he/she learns that his/her rights have been infringed, and claim compensation for unlawful termination or demand continued performance of the contract.

Q2: The unit's rules and regulations don't mention that detention can be lifted. Can we just rely on verbal provisions instead?

No. If the employer terminates the employment contract on the grounds of a serious violation of the rules and regulations, the rules and regulations must meet the dual requirements of substantive and procedural legality: the content of the rules and regulations must be reasonable and not in violation of the law; and the procedures must be in accordance with Article 4 of the Labor Contract Law of the People's Republic of China, which stipulates that the rules and regulations must be formulated through democratic procedures and be publicized or notified to the employees. If there are only oral requirements from the supervisor or internal emails that have not been publicized, the employee can claim that he/she was not aware of or did not approve of them, and they cannot be used as the basis for termination. The employer should provide evidence such as the publicized rules and regulations, the employee's signature receipts, and training records. If the employer cannot provide such evidence, the termination will lack legal basis and constitute an illegal termination. The employee may request compensation in accordance with Articles 48 and 87 of the Labor Contract Law. It is recommended that employees keep the text of the rules and regulations and the signature receipts, and use them to defend themselves in the event of a dispute.

Q3: Should salaries be paid during the period of administrative detention?

During the period when an employee is detained in administrative detention and does not provide labor, the employer may generally stop paying their wages during this period; however, whether this affects other benefits should be determined on a case-by-case basis. If the employer ultimately terminates the contract legally, they will no longer pay wages after the termination; if the termination is deemed illegal and the employee claims to continue performing the contract, the handling of wages during the detention period needs to be determined based on whether the employee provided labor and whether the employer illegally terminated the contract. There are differences in practice. It should be noted that administrative detention itself does not change the continuity of the labor relationship, and the employer cannot directly determine that the employee has automatically resigned without going through the proper procedures. If the employee disagrees with the termination, they should apply for arbitration within the statutory time limit; if there are arrears in wages, they can claim them together. For specific standards, it is recommended to evaluate them in light of labor arbitration and work-related injury compensation legal services.

Q4: If the unit dismisses me on the grounds of detention, how much compensation can I claim?

If the termination is deemed illegal, the employee may claim compensation for the illegal termination of the labor contract, which is standardized at twice the amount of the economic compensation. According to Article 47 of the Labor Contract Law of the People's Republic of China, the economic compensation shall be paid at the rate of one month's salary for each completed year of service, one year's salary for a service period of more than six months but less than one year, and half a month's salary for a service period of less than six months. The monthly salary refers to the average monthly salary (including bonuses and allowances) during the 12 months preceding the termination. For example, if the employee has worked for three years and the average monthly salary is 10,000 yuan, the economic compensation would be 30,000 yuan, and the compensation would be 60,000 yuan. The employee may also choose to request the continuation of the contract and the retroactive payment of wages. To determine which option is more advantageous, it is necessary to consider the possibility of the employee's position being restored and the strength of the evidence. It is recommended to make a decision based on the case assessment of Beijing Henglue Law Firm.

Q5: I was expelled due to detention. What should I do first?

The first step is to collect and verify evidence: keep the detention decision issued by the public security organ, the notice of termination of the labor contract from the employer, and the delivery receipt; preserve pay slips, attendance records, employee handbooks, and communication records. The second step is to determine whether the employer's rules classify administrative detention as a serious disciplinary violation, and whether the rules have undergone democratic procedures and been publicly announced. The third step is to file an arbitration application with the labor dispute arbitration committee within one year from the date of discovering that one's rights have been infringed, requesting confirmation of the unlawful termination and claiming compensation or demanding continued performance of the contract. The fourth step is, if necessary, to hire a lawyer to intervene and organize defenses against the legality of the rules, the termination procedures, and the factual connections. It is crucial not to sign any resignation documents containing unfavorable statements, nor to absent oneself from work without authorization, to avoid being held accountable for one's own actions.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Labor arbitration legal services·Attorney Chen Ping·Beijing Henglue Law Firm