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JunHe
/ Articles / Top 10 Questions Employers Should Ask When Hiring and Firing in China
News & Publications
02/22/2012
Top 10 Questions Employers Should Ask When Hiring and Firing in China
By: Jeffrey Wilson
Submitted by Firm:
JunHe
Firm Contacts:
Hongjuan Bai
,
Jeffrey Wilson
Article Type:
Legal Article
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HIRING IN CHINA:
Is the employee a PRC national, foreign national, from Hong Kong, Taiwan or an overseas Chinese?
What type of entity is the employer? Representative office, branch, company?
In additional to national laws, what local laws and practice are important?
Is the employer required to recognize any of the employee’s previous service?
Where will social insurance be paid? And will the employer pick up the employee contributions?
Is the employee being hired through a labor agent? Is it legal? Or desirable?
What type of contract should be provided? Fixed-term, open-term, project-based?
How can the contract be terminated? What is a permitted probation period?
Are benefits contractual? Or follow company policy?
How is confidential information and IPR protected? And should be employee be subject to a non-compete?
FIRING IN CHINA:
The statutory grounds for termination are quite limited.
Some of the statutory termination grounds are extremely difficult to meet in practice.
Unions and labor bureaus may need to be consulted when terminating employees.
Most employees are terminated by paying agreement, with severance above statutory requirements.
Paying severance and giving notice may not be sufficient to terminate an employee.
Dispatched employees may not necessarily be terminated by returning them to the agent.
PRC law may not even apply when terminating foreign national employees.
Employees in certain categories (e.g., pregnancy or illness) may be protected from termination.
Non-compete usually may be waived by the employer.
In an unlawful termination case, evidence may be difficult to introduce.
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