A foreign employee who is legally employed in China can generally file a labor dispute claim against his or her employer and seek protection under China’s labor laws.
1. Can foreign employees use China’s labor arbitration system?
Yes. China’s labor dispute resolution system generally applies to foreign employees working legally in China.
A foreign employee may file a claim with the competent Labor Dispute Arbitration Commission concerning disputes such as unpaid wages, unlawful termination, overtime, severance pay, bonuses, or other employment-related matters.
The fact that an employee is a foreign national does not, by itself, prevent the employee from filing a labor dispute claim in China.
2. Does the foreign employee need a valid work permit?
This is one of the most important issues.
Under Chinese law, foreign nationals generally need to obtain the required work permit and residence documents before legally working in China.
Where a foreign employee has a valid work permit and is legally employed by a Chinese employer, the employment relationship can generally be recognized and protected under Chinese labor law.
However, if a foreign national works in China without the required work permit, the situation becomes significantly more complicated. In such circumstances, the employee may have difficulty establishing a legally recognized labor relationship, even if the parties have signed an employment contract.
This does not necessarily mean that the foreign employee has no legal remedy. Depending on the circumstances, the employee may still have claims relating to unpaid remuneration or other contractual rights. However, the legal basis and available remedies may be different from those available to an employee who is legally employed.
3. What types of claims can a foreign employee bring?
Common labor dispute claims include:
Unpaid salary;
Unpaid overtime;
Unlawful termination;
Severance pay;
Compensation for unlawful termination;
Failure to conclude a written employment contract;
Annual leave compensation;
Disputes over bonuses or other benefits;
Social insurance-related disputes; and
Confirmation of the existence of an employment relationship.
For example, if a foreign employee with a valid work permit is dismissed without lawful grounds, the employee may be able to seek statutory compensation or other remedies under Chinese labor law.
4. What is the procedure?
In China, labor disputes generally follow a “arbitration first, litigation second” procedure.
The typical process is:
Negotiation → Mediation (optional) → Labor Arbitration → Litigation
The employee normally needs to submit the dispute to the competent Labor Dispute Arbitration Commission before bringing a lawsuit before the People's Court.
If the employee or employer is dissatisfied with an arbitration award, a lawsuit may be filed with the People's Court where permitted by law.
The appropriate arbitration commission is generally determined by factors such as the location where the employment contract is performed and the location of the employer.
5. Is there a time limit for filing a labor arbitration claim?
Yes.
Generally, an application for labor arbitration must be filed within one year from the date when the employee knows or should have known that his or her labor rights have been infringed.
However, different rules may apply depending on the nature of the claim and the circumstances of the case. Therefore, a foreign employee should seek legal advice as soon as a labor dispute arises rather than waiting until the limitation period is close to expiring.
6. What should a foreign employee prepare?
A foreign employee should normally preserve documents and evidence such as:
Employment contract;
Work permit;
Residence permit;
Passport;
Salary records and bank statements;
Payslips;
Email and WeChat communications with the employer;
Termination notice;
Attendance records;
Overtime records;
Performance evaluations; and
Other documents relating to the employment relationship.
Evidence can be particularly important in labor disputes because the employee may need to prove the existence and terms of the employment relationship, salary arrangements, termination circumstances, and other relevant facts.
Conclusion
A foreign employee can generally file a labor dispute claim in China if the employment relationship is legally established in China.
However, foreign employees should pay particular attention to their work permit, residence status, employment contract, employer information, and place of employment. Working without the required employment authorization may significantly affect whether a labor relationship can be recognized and what remedies are available.
If a foreign employee is facing unpaid wages, termination, severance, or another employment dispute in China, it is advisable to obtain legal advice promptly and assess the employee's immigration and employment status before filing a claim.
