"Special Regulations" of Foreign Employees in Labor Relations

In this article, we introduce the “special features” that apply to foreign employees in labor relations management.

本文将介绍外籍员工在劳动关系管理中的“特殊性”。

Under relevant Chinese laws, employers can only recruit foreign students who are studying in universities in China as interns. In addition, for a legal internship, foreign students should obtain the consent of their schools and go to the exit-entry administration agency of the Immigration Office to complete the internship endorsement procedures.

根据中国相关法律规定，用人单位只能招收在中国高校就读的外国学生实习。此外，外国留学生要想合法实习，必须征得学校同意，并到公安机关出入境管理机构办理实习签注手续。

That is to say, foreigners who have graduated and foreigners who are not studying in universities in China cannot work in a company in China under an internship agreement.

也就是说，已毕业的外国人和未在中国高校就读的外国人不能根据实习协议在中国的企业工作。

According to the relevant laws and regulations of China, the employer of a foreigner working in China must be consistent with the employer indicated on his/her work permit.

根据中国的相关法律法规，在中国工作的外国人的雇主必须与其工作许可证上注明的雇主一致。

This indicates that foreign employees cannot be recruited through labor dispatch and business outsourcing, as in labor dispatch and business outsourcing, employees work for the employer specified in the labor contract.

这表明，不能通过劳务派遣和业务外包招聘外籍员工，因为在劳务派遣和业务外包中，员工为劳动合同中的用人单位工作。

On the other hand, it also means that foreign employees shall only provide labor in the region where the employer is based. Accordingly, employees are not allowed to take part-time jobs across regions.

另一方面，这也意味着外国雇员只能在雇主所在地区提供劳动。因此，雇员不得跨地区兼职。

Since the employer must be consistent with the one indicated in the work permit, foreigners who change their employers need to go through the formalities for changing their work permits and residence permits promptly.

由于雇主必须与工作许可中注明的雇主一致，因此更换雇主的外国人需要及时办理工作许可和居留许可的变更手续。

Both the old and new employer should actively assist in the changing procedures. Otherwise, the old and new employers would likely constitute illegal employment. This would lead to legal responsibilities such as a fine of up to RMB 2,000.

新老雇主都应积极协助办理变更手续。否则，新老雇主很可能构成非法用工。这将导致法律责任，如最高罚款 2000 元人民币。

Article 17 of the Regulations on the Administration of Employment of Foreigners stipulates that the term of a foreign employee’s labor contract shall not exceed five years. That is, non-fixed term labor contracts (also referred to as open-ended labor contracts) cannot be applied to foreign employees.

《外国人就业管理条例》第17条规定，外籍员工的劳动合同期限不得超过五年。也就是说，非固定期限劳动合同（也称无固定期限劳动合同）不能适用于外籍员工。

If it is necessary to renew the expatriate’s labor contract, the enterprise shall renew the labor contract only after obtaining the approval of the local labor administrative department and completing the procedures for the extension of the work permit within 30 days before the expiration of the original labor contract.

如需与外派人员续签劳动合同，企业应在原劳动合同期满前30天内，经当地劳动行政部门批准并办理工作许可延期手续后，方可续签劳动合同。

Although there is usually an age limit for the application of foreigners’ employment permits, foreigners who have exceeded the statutory retirement age in China are not prohibited by Chinese laws from working in China.

虽然外国人申请就业许可通常有年龄限制，但中国法律并不禁止超过中国法定退休年龄的外国人在中国工作。

In the case where the foreign employee has reached the retirement age while the employment permit has not expired, the employer cannot simply terminate the foreign employee just because the foreign employee has reached the retirement age in China. Or else, labor disputes may arise.

如果外籍员工已达到退休年龄，而就业许可证尚未过期，用人单位不能因为该外籍员工在中国已达到退休年龄就简单地解雇该外籍员工。否则，可能会引发劳动争议。

Given this, employers are suggested to mitigate this risk through contractual agreements.

有鉴于此，建议雇主通过合同协议来降低这种风险。

According to Chinese laws, the employer who illegally terminates the labor contract will be liable for paying compensation or restoring the labor relationship. However, for foreign employees, if the employer has canceled the work permit, it’s quite difficult for the employee to apply for arbitration to restore the labor relationship.

根据中国法律，用人单位违法解除劳动合同的，要承担支付赔偿金或恢复劳动关系的责任。但是，对于外籍员工来说，如果用人单位已经注销了其工作许可，那么员工想要申请仲裁恢复劳动关系就相当困难了。