Labor Contract Memo for Foreign Employee
The legal protection for foreigners in the process of employment is not equal to the Chinese citizens, only in the statutory scope to be treated as citizens. As for certain laws that do not have mandatory provisions, employers and foreign employees have a certain right to autonomy, which can be negotiated by agreement. Therefore, signing a well-protected labor contract will be a relatively effective way to prevent risks and reduce litigation disputes. This article will provide a preliminary introduction in the following aspects.
When foreigners are employed in China, the labor standards related to minimum wages, working hours, rest and leave, labor safety and health, social insurance, etc. are protected according to Chinese laws and regulations. No special clause is required in these cases.
But unlike locals, foreign employees who want to receive economic compensation, double compensation, or even their Working Permit renewed, must include those clauses expressly on their labor contract. It is not enough to write "this contract shall be governed by Chinese Labor Law or Labor Contract Law". Reasons for dismissal or retirement must also be specified in the labor contract.
Even if the foreign employee fits the legal requirements to sign an open-ended labor contract, foreign employees still have to comply with the "labor contract’s maximum period of five years" and related renewal and approval of the provisions and procedures.
If the contract didn’t stipulate that the employer must apply the Working Permit for a foreign employee, then the employer can refuse to renew the Working Permit without reasonable excuse and any compensation. The Working Permit for foreign employees needs to be handled using the company information of the employer, and the employment certificate must indicate the employing unit information. After the termination of the labor contract, the employer shall hold the original Working Permit to apply the cancellation, Therefore, the foreign employees need to pay attention to their Working Permit and Residence Permit.
Legal Rights of Female Employees:
China's Labor Law makes special emphasize on the importance of the protection for female employees, especially during pregnancy, childbirth, and lactation period. The same standards apply to the labor protection of both Chinese and foreign female employees.
In order to protect the commercial interests of the employer, a Non-competition Agreement can be signed between employer and employee. The agreement will vary according to the specific business scope of the company and the corresponding law. The economic compensation and the duration must be expressly ruled in the Non-competition Agreement.