The whole process compliance guide for the employment of foreign personnel in enterprises: 12 key nodes from recruitment to termination.

Compliance Guide for the Whole Process of Enterprise Foreign Personnel Employment: 12 Key Nodes from Recruitment to Disengagement

Under the wave of globalization, the introduction of foreign talents has become an important means to enhance international competitiveness. However, the employment of foreign personnel involves multiple legal requirements, such as employment permit, labor contract, social security payment and so on. A little carelessness may lead to the risk of illegal employment. This paper systematically combs the core process and compliance points of enterprises employing foreign personnel, and provides practical operation guidelines for enterprises.

1. job requirements and qualification review: clarify "why" and "who"

Enterprises need to determine foreign personnel positions based on business requirements, focus on evaluating the particularity of the post. For example, in order to expand the European market, a multinational technology company needs to recruit legal experts who are familiar with EU data privacy regulations. Such positions meet the employment conditions of foreigners due to the shortage of suitable candidates in China. Br/> post qualification examination should pay attention to three points:

1. professional skills matching : if foreign engineers are recruited, their academic qualifications, professional qualifications and project experience should be verified.
2. health and no criminal record : candidates are required to provide medical examination report and no criminal certificate within 6 months.
3. visa type adaptation : choose z-word work visa, r-word talent visa or c-word crew visa according to the nature of the job. A manufacturing enterprise has not verified the type of candidate visa, resulting in its entry with a tourist visa was identified as illegal employment.

2. employment permit processing: compliance bottom line of three certificates in one

foreign personnel need to complete the closed-loop management of "employment permit, work visa, residence permit" for employment in China:

1. employment permit application : enterprises need to submit the application form for employment of foreigners, candidate's resume, health certificate, draft labor contract and other materials to the provincial labor administrative department. A financial company did not provide a draft labor contract, resulting in a 2-month delay in approval.
2. Z visa acquisition : foreigners apply for work visas from Chinese embassies and consulates abroad on the basis of the Notice of Work Permit for Foreigners. It should be noted that holders of F, L, C and G visas are not allowed to be employed, otherwise they constitute illegal employment.
3. employment permit and residence permit : within 15 days after entering the country, enterprises need to apply for employment permit with permit, labor contract, passport and other materials; Apply for work residence permit within 30 days. A foreign company did not apply for a stay extension in time, resulting in foreign executives being restricted from leaving the country.

3. labor contract signing: term, terms and dispute avoidance

The labor contract is the core legal document for the employment of foreign personnel, need to focus on control:

1. term limit : the labor contract shall not exceed 5 years at most, and an extension shall be applied 30 days before the expiration. A company signed a 6-year contract with a foreign employee, which was deemed invalid by the labor department.
2. mandatory terms : in addition to the regular content, it is necessary to specify the job particularity, working place, salary structure (not lower than the local minimum wage standard), social insurance payment, etc. For example, a foreign employee's social security declaration was rejected because the contract did not specify the minimum wage standard.
3. termination clause : The right of the enterprise to terminate the contract with advance notice may be agreed upon, subject to local judicial practice. Some courts in Shanghai recognize that companies have no reason to discharge their rights, while courts in Beijing tend to protect the rights and interests of workers.

4. compensation and social security management: balancing costs and compliance

Foreign personnel compensation should take into account market level and legal requirements:

1. salary structure : the basic salary shall not be lower than the local minimum standard, and the performance salary shall be linked to the assessment results. An enterprise was ordered to make up the difference and pay late fees because the basic salary of foreign employees was lower than the minimum wage.
2. Social insurance payment : Enterprises are required to pay pension, medical, work injury, unemployment and maternity insurance for foreign employees. However, state personnel who have signed bilateral social security agreements with Germany and South Korea may be exempted from paying part of the insurance with the insurance certificate. For example, a German-funded enterprise exempts German employees from old-age insurance, but needs to provide a certificate of insurance issued by the German social security institution.
3. provident fund payment : the current law does not force enterprises to pay housing provident fund for foreign employees, but Shanghai, Shenzhen and other regions allow both parties to negotiate the payment. A consulting company for not clear with foreign employees provident fund terms, causing labor disputes.

5. daily management and cultural integration: reducing employment risks

Legal compliance and cultural adaptation should be taken into account in the management of foreign personnel:

1. Working hours and leave : Foreign nationals are entitled to statutory holidays, annual leave and family leave. An enterprise combines family visit leave and annual leave for foreign employees, which is considered as illegal deduction of leave.
2. Language and Communication : The workplace should use the agreed language (such as English) communication, and encourage foreign employees to learn Chinese. A foreign company did not provide Chinese training, resulting in foreign employees due to language barriers caused by operational accidents.
3. Safety training : The enterprise shall provide training on safety operation procedures for foreign employees and require them to sign a confirmation letter. A chemical enterprise was punished by the safety supervision department for failing to carry out safety training for foreign employees.

6. contract termination and exit management: compliance closed loop from beginning to end

Contract termination shall be performed according to law:

1. advance notice : enterprises or employees need to notify in writing 30 days in advance to terminate the contract, and go through the formalities of cancellation of employment permit and residence permit. An enterprise did not cancel the residence permit of foreign employees, resulting in their stay in China constitutes illegal residence.
2. economic compensation : If the contract is terminated due to enterprise reasons, economic compensation shall be paid according to the working years. A foreign company dismissed foreign employees on the grounds of "substandard performance", but failed to provide evidence of assessment and was sentenced to pay compensation.
3. resignation handover : foreign employees are required to return enterprise assets and sign non-competition agreements (if trade secrets are involved). A technology company did not sign a non-competition agreement with foreign employees, resulting in the disclosure of core technology.

Conclusion: Compliance is the lifeline of foreign personnel employment

Enterprises should take the law as the cornerstone and compliance as the bottom line for foreign personnel employment. By improving system design, strengthening process control, and enhancing risk awareness, enterprises can achieve sustainable development while introducing international talents. It is recommended that companies regularly organize HR departments to study the "Regulations on the Employment of Foreigners in China", "Social Insurance Law" and other regulations, and establish a special compliance review mechanism for the employment of foreign personnel to ensure that every step of operation can withstand legal inspection.