As stipulated in Article 14 of the Supreme People's Court's Interpretation of Several Issues concerning the Application of Law to Hearing Labor Dispute Cases (IV), foreigners who have not obtained employment certificates according to law sign labor contracts with employers in China, and Chinese residents in Hong Kong, Macao and Taiwan who have not obtained employment certificates according to law sign labor contracts with mainland employers. Where a party requests to confirm the existence of labor relations with the employing unit, the people's court shall not support it.

What are the consequences of illegal employment as an individual

According to Article 43 of the Exit and Entry Administration Law of the People's Republic of China, aliens who engage in any of the following acts shall be regarded as illegal employment:

(1) working in China without obtaining a work permit or a work-type residence permit in accordance with relevant regulations;

(2) working in China beyond the scope of the work permit; (3) Foreign students work in China beyond the prescribed post scope or time limit in violation of the regulations on the administration of work-study.

Employers who illegally employ foreigners may face a maximum fine of RMB100,000, up from Rmb50,000.

The maximum fine foreigners may face for illegally working in China has been raised from Rmb1,000 to Rmb20,000. In serious cases, they will be detained for five to 15 days until deportation and may not be allowed to enter China for 10 years from the date of deportation.

Article 80 of the Law also stipulates that aliens who work illegally shall be fined not less than 5,000 yuan but not more than 20,000 yuan; If the circumstances are serious, he shall be detained for not less than five days but not more than 15 days and shall, in addition, be fined not less than 5,000 yuan but not more than 20,000 yuan.

Those who introduce foreigners for illegal employment shall be imposed a fine of 5,000 yuan for each person illegally introduced, not exceeding 50,000 yuan in total; A fine of 5,000 yuan for each person illegally introduced to the enterprise, not exceeding 100,000 yuan in total; If there are any illegal gains, the illegal gains shall be confiscated.

Whoever illegally employs a foreigner shall be fined 10,000 yuan for each person illegally employed, not exceeding 100,000 yuan in total; If there are any illegal gains, the illegal gains shall be confiscated.

What procedures do you need to go through for legal employment

When it comes to foreigners' employment procedures, perhaps everyone's first reaction is "employment permit" and "employment permit".

According to national regulations, from April 1, 2017, the implementation of "two certificates integration", that is, for more than 90 days of work in China, will no longer issue "foreign expert certificate (foreign experts in China permit)" and "employment permit (foreign entry employment permit)", officially launched "foreigner work permit notice" and "foreigner work permit".

Which foreigners are exempt from the foreigner work permit? There are mainly four categories of personnel: (1) Foreign professional technical and managerial personnel directly invested by the Chinese government, or foreign professional technical and managerial personnel funded by state organs and institutions, with senior technical titles or certificates of special skills confirmed by authoritative domestic or international technical management departments or trade associations, and foreigners who hold the "Foreign Expert Certificate" issued by the Administration of Foreign Experts Affairs;

(2) Foreign labor service personnel who hold the Permit for Foreigners Engaged in Offshore Oil Operations in the People's Republic of China and are engaged in offshore oil operations without landing and have special skills;

(3) Foreigners who have been approved by the Ministry of Culture to conduct commercial artistic performances with Temporary Business Performance License;

(4) Foreigners holding Chinese Permanent Residence Permits for Foreigners.

According to previous regulations, Chinese residents of Hong Kong, Macao and Taiwan also need to apply for employment permits if they want to work on the mainland. If you do not handle the unauthorized employment, will also constitute illegal employment. The following is the comparison between the two under the old regulations: It needs to be clear that since August 2018, relevant departments have not accepted the application of new employment permits, that is, Chinese residents of Hong Kong, Macao and Taiwan, just like other migrant workers, will directly form labor relations with employers and directly sign labor contracts.

Application of law to the employment of foreigners

Labor contract

Once a foreigner is employed in a domestic enterprise according to law, the enterprise shall, in accordance with the relevant provisions of the Regulations on the Administration of Employment of Foreigners in China, sign a labor contract with the hired foreigner, and the term of the labor contract shall not exceed five years.

According to this regulation, we can draw the following two conclusions:

First, the foreigner who has gone through the employment procedures in accordance with the law establishes a labor relationship with the employer, and China's relevant labor laws and regulations shall be applicable in accordance with the law. Therefore, the enterprise shall sign a labor contract with the foreigner within one month from the date of employment, otherwise the foreigner has the right to ask the employer to bear the legal liability for failing to sign a labor contract.

Second, the term of the labor contract. According to the regulations, enterprises and employed foreigners should conclude labor contracts in accordance with the law. The term of a labor contract shall not exceed five years. The labor contract shall be terminated upon expiration of its term, but may be renewed after the examination and approval procedures have been completed in accordance with Article 19 of these provisions.

Accordingly, when a foreigner establishes a labor relationship with a domestic enterprise and signs a labor contract, the type of labor contract is limited to a fixed term labor contract with a period of no more than five years, and the provisions on non-fixed term labor contracts are not applicable. Similarly, labor contracts with a period of completing a certain task are not applicable.

In this regard, Chinese provinces, municipalities and autonomous regions have different views, among which very few places recognize such a breakthrough in the law of the agreement, such as Shanghai "Several Opinions on the Implementation of the Provisions on the Administration of Employment of Foreigners in China" notice 16: The rights and obligations of both parties concerning the term of employment, position, remuneration, insurance, working hours, conditions for termination of the employment relationship, liability for breach of contract, etc. between the enterprise and the foreigner who has been approved for employment shall be stipulated in the labor contract.

Work overtime

Foreigners who are employed in accordance with the law also have the right to overtime pay if they work overtime outside the statutory working hours. According to the provisions of the state law, foreigners who are employed in accordance with the law shall also be subject to the relevant provisions of the state on working hours. Therefore, for foreigners employed according to law, if they work beyond the legal working hours, the enterprise should pay overtime wages according to law.

Social insurance

Foreigners also have to pay social insurance in accordance with the law. The problem of foreigners paying social insurance has been concerned by employers, but it has not been well implemented because of the disconnection between the practical operation and the legal provisions.

Before the implementation of the Social Insurance Law, it was very rare for employers to pay social insurance for foreigners, and most of them fulfilled relevant obligations through commercial insurance.

Article 97 of the Social Insurance Law stipulates that "Foreigners who work in China shall participate in social insurance with reference to the provisions of this Law", which for the first time stipulates the issue of compulsory payment of social insurance by foreigners.

Later, the Interim Measures for Foreigners Working in China to Participate in Social Insurance issued by the Ministry of Human Resources and Social Security further clarified the issue that foreigners must pay social insurance.

It is also mentioned in the Measures that if people of nationalities of countries that have signed bilateral or multilateral agreements on social insurance with China are employed in China, their participation in social insurance shall be handled in accordance with the provisions of the agreement. It should be noted that nationals of countries with bilateral agreements on social insurance will not be exempt from social insurance contributions as long as they are employed at home. If he/she has not paid the corresponding social insurance in the country, or has exceeded the social insurance exemption period agreed in the bilateral agreement, the employer shall pay the social insurance for him/her in accordance with the law.

At present, China has bilateral agreements on social insurance with nine countries (Germany, South Korea, Denmark, Finland, Canada, Switzerland, the Netherlands, France and Spain). Enterprises can refer to the relevant provisions of these agreements when hiring employees from these countries.

Rest and leave

Foreigners who are employed in the employing units in accordance with the law shall enjoy the right to rest and leave as stipulated by the laws and regulations of the State in accordance with the law. This means that foreigners also enjoy statutory holidays such as annual leave, statutory holidays, marriage leave and maternity leave.

Minimum wage

For foreigners who are employed in accordance with the law in employing enterprises, the wage standard after normal work shall not be lower than the local minimum wage standard.

Can international students practice in China

Strictly speaking, international students are not allowed to practice in China. Because the so-called overseas students, their main purpose in China is to study, their visa should also be written to study. Therefore, if the student goes to work in the corresponding unit at this time, it may constitute illegal employment, because it does not conform to the content of the visa, unless the enterprise through the formal channel in their residence permit notes internship.

It is stipulated in Article 22 of the Regulations of the People's Republic of China on the Entry and Exit Administration of Foreigners that aliens holding study residence permits who need to work or practice off-campus shall, with the approval of their schools, apply to the Exit and Entry Administration authorities of the public security organ for the location and duration of the work-study or internship in their residence permits.

A foreigner holding a residence permit for study who has not annotated the information provided in the preceding paragraph in his/her residence permit may not take part-time work or practice off campus.

According to the Regulations on the Administration of Employment of Foreigners in China, foreigners who have not obtained residence certificates (i.e., those who hold F, L, C and G visas), foreigners who have studied or practiced in China, and accompanying family members of foreigners who hold professional visas are not allowed to work in China.

In case of special circumstances, the employing enterprise shall apply for the license certificate in accordance with the examination and approval procedures of these Provisions, and the employed foreigner shall change his/her identity in the public security organ with the license certificate and apply for the "residence permit" and "employment permit" before he/she can be employed.

When foreign employees reach the retirement age, can the enterprise terminate the labor contract?

According to the Labor Contract Law, labor contracts end when workers reach the statutory retirement age (currently 60 for men and 50 for women) or begin to enjoy pension benefits.

But if a foreign employee reaches the retirement age stipulated by Chinese law, can the enterprise terminate the labor contract? The Shanghai court had held that Shanghai regulations did not bar foreigners from continuing to work in the city if they reached the mandatory retirement age. The court in Beijing found that foreign workers could terminate the labor contract by reaching the legal retirement age and did not need to pay economic compensation.

Can the enterprise renew the non-fixed term labor contract with foreign employees?

"Labor Contract Law" stipulates that in the same employer and employee concluded two consecutive fixed term labor contracts, when the contract is renewed, shall conclude the labor contract without fixed term. However, in the case that the same enterprise has signed two fixed term labor contracts with foreign employees in succession, whether the employees can request to sign non-fixed term labor contracts is different in different regions. Subject to local interpretation.

First of all, according to the Regulations on the Administration of Employment of Foreigners in China, the term of the labor contract involving foreign interests shall not exceed five years at most, and the labor contract shall be terminated upon expiration. Both parties may renew the labor contract after completing the examination and approval procedures for the employment of foreigners.

Basic requirements for applying for work and residence permits

They should be at least 18 years old, in good health, have no criminal record, have a confirmed employer within the territory, and have the necessary professional skills or appropriate level of knowledge for their work.

The work is in line with the needs of economic and social development, which is a professional in urgent need of domestic shortage.

Where laws and regulations provide otherwise for foreigners to work in China, such provisions shall prevail.