1. Establish what the outside work actually is
For Article 39(4) of the PRC Labor Contract Law, first establish that the employee concurrently has an employment relationship with another employer. Review the actual tasks, management, working times, payment arrangements and available contracts. An online profile or corporate-registration entry is a lead, not conclusive proof of another employment relationship. Occasional services or passive investment require their own analysis.
Statutory non-full-time employment is a separate category. Articles 68–69 generally limit work for the same employer to an average of 4 hours a day and a total of 24 hours a week, with hourly pay as the main basis. Such workers may contract with more than one employer, but a later contract must not affect performance of the earlier one. Calling a full-time employee’s outside activity “part-time” does not establish this statutory status.
2. Separate the two routes under Article 39(4)
Once concurrent employment is established, Article 39(4) addresses either serious effects on completion of this employer’s work, or refusal to correct after the employer raises the issue. These are alternative conditions, not a rule that any undisclosed second job automatically permits dismissal. For the serious-impact route, connect specific missed tasks, conflicting schedules or documented service failures to the other employment; dissatisfaction or suspicion alone is insufficient.
If relying on refusal to correct, identify the verified arrangement, state clearly what must change, deliver the request and allow a reasonable opportunity to respond and comply. Preserve the employee’s explanation and what happened afterwards. The provision sets no universal fixed number of correction days; a response deadline should fit the facts and should not make compliance impossible. A general handbook ban is not, by itself, proof of a specific request and refusal.
3. Check policies and collect evidence lawfully
A separate serious-policy-breach argument under Article 39(2) needs its own review. Check the rule’s lawful content, adoption and communication under Article 4, any prior approval and the seriousness of the conduct. Article 50 of SPC Labor Disputes Interpretation (I) addresses when published, lawfully adopted rules can determine the parties’ rights and duties, including conflicts with contractual terms. A global “no outside work” clause does not remove these checks.
Begin with relevant company records, the employee’s account and lawfully available information. Personal Information Protection Law Articles 6, 13 and 17 require attention to necessity, a lawful processing basis and notice. HR management is not unlimited permission to access private accounts or collect unrelated family and financial information. Preserve original records, context and access controls; investigate any separate confidentiality or competition issue on its own facts.
4. Review the decision before issuing a dismissal
Article 44 of SPC Interpretation (I) places the burden of proof on the employer in disputes arising from its dismissal decisions. Build a file linking the employment arrangement, the chosen statutory condition and the supporting evidence. Review any actual correction and prior management consent. If evidence remains incomplete, further fact-finding or a properly agreed solution may be preferable to an unsupported dismissal.
Before unilateral dismissal, check the Article 43 trade-union process and applicable local requirements. Interpretation (I) Article 47 provides a pre-litigation cure exception for certain failures to notify an established union; do not plan to rely on that exception instead of notifying first. State the actual proven reason accurately, preserve delivery evidence and arrange the Article 50 departure documents and handover. Payment in lieu of notice does not cure a missing Article 39 ground.
5. Prepare a focused employer review file
Prepare the employee’s contract and role, relevant policy versions and adoption/notification records, prior outside-work approvals, the second arrangement and dates, task-impact evidence, correction requests, replies and subsequent conduct. Add the China employing entity, work city, decision authority and any existing union. Separate confirmed facts from assumptions and keep personnel material on a need-to-know basis.
If your company is instead the proposed second employer, Article 91 matters: hiring someone whose employment with another employer has not ended can lead to joint and several liability if that other employer suffers loss. Verify status and competing obligations before the start date. A recruitment declaration helps document the inquiry but does not automatically eliminate liability.
Legal sources
Official sources · Checked 2026-11-01. Translations are for reference and are not official legal texts.
- PRC Labor Contract Law (2012 amendment) ↗
Articles 4, 39(2), 39(4), 43, 50, 68–69 and 91.
- SPC Interpretation (I) on Labor Disputes, Fa Shi [2020] No. 26 ↗
Articles 44, 47 and 50: employer evidence burden, union procedure and workplace rules.
- PRC Personal Information Protection Law ↗
Articles 6, 13 and 17; Article 18 contains statutory notice exceptions.
General information about mainland China. The facts, applicable dates and local rules require individual review.
Partner, Beijing ChangAn Law Firm
China-qualified since 2019 · Beijing & Shenzhen
Review the outside-work facts before deciding
Start with the China employing entity, work city, employee’s role and any response deadline. After a conflict and scope check, agree a secure way to share the policy, evidence and correspondence.
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