Legal framework for the protection of foreign employees in China
| DOI | https://doi.org/10.1108/ER-07-2021-0335 |
| Published date | 29 March 2022 |
| Date | 29 March 2022 |
| Pages | 1142-1156 |
| Subject Matter | HR & organizational behaviour,Industrial/labour relations,Employment law |
| Author | Wenfang Wu,Xuan Luo |
Legal framework for the protection
of foreign employees in China
Wenfang Wu and Xuan Luo
School of Law, Shanghai University of Finance and Economics, Shanghai, China
Abstract
Purpose –This study aims to examine the adequate application of rights and protections granted to
employees under labor laws and regulations to foreign employees working in China.
Design/methodology/approach –The authors analyzed applicable laws, regulations and related literature
on the employment of foreigners in China and employed quantitative and qualitative methods to scrutinize the
features of labor disputes involving foreign employees, to assess claims of inconsistencies. A group of judges
and labor arbitrators were also interviewed.
Findings –The inconsistencies between Chinese immigration and labor laws, and between applicable laws and
court enforcement, resultin a considerable gap in employment protection for foreign employees. They have grown
over the last two decades, in a changing legal environment of labor protection and labor market for foreigners.
Research limitations/implications –This study focused on documented foreign employees’labor
litigations from 2017 to 2020 in people’s courts in China’s five most economically developed regions. Future
studies could cover a wider geographic territory and labor disputes of undocumented foreign employees to
provide an even more comprehensive picture of the challenges and potential solutions.
Practical implications –The inconsistency between immigration and labor law regarding employment
protection for documented foreign employees requires legal clarification and regulation to ensure equal
employment protection of both Chinese and foreign employees.
Originality/value –There are limited studies using empirical data from different regions in China to
document and understand the gap between the statutory labor protections and the labor protection granted to
foreign employees in law as well as in court practice.
Keywords Documented foreign employee, Employment protection, Immigration controls, Chinese labor law,
Labor disputes, Work permit
Paper type Research paper
1. Introduction
As one of the largest foreign direct investment (FDI) recipient countries in the world, the
number of foreigners employed in China has remained stable since 2010 [1]. After 2017, the
data in Shanghai, with around 90,000 foreigners employed in China, show that this number
has remained relatively stable until 2019 [2] despite the Chinese government relaxing
immigration controls to attract highly skilled foreign employees.
While the relaxation of immigration controls has increased the convenience of employing
foreigners in China, their labor protection has not been subject to a similar discussion in
Chinese (Zhu and Price, 2013;Liu, 2014;Ding and Koslowski, 2017;Liu and Ahl, 2018;Ahl and
Czoske, 2018) and international literature (Ahl et al., 2020). Literature involving relevant court
practices is also limited (Wu, 2013;Wang, 2016;Ahl et al., 2020).
The number of labor dispute cases involving foreign employees tried at people’s courts
follows the general upward trend of labor disputes in China. As shown in Figure 1, the cases
commence with the establishment of the online judgment database of the Chinese Supreme
People’s Court in 2014. Considering, that the cases tried by the people’s courts include those in
the first and second instances, following the mandatory labor arbitration process and that
many disputes are settled out-of-court, the actual number of labor disputes is higher than
shown in Figure 1.
ER
44,5
1142
Funding: This study has received research grants from Innovation Team Project “Internet and Big Data
Rule of Law Research”of Shanghai University of Finance and Economics.
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/0142-5455.htm
Received 31 July 2021
Revised 8 January 2022
15 February 2022
Accepted 16 February 2022
Employee Relations: The
International Journal
Vol. 44 No. 5, 2022
pp. 1142-1156
© Emerald Publishing Limited
0142-5455
DOI 10.1108/ER-07-2021-0335
To continue reading
Request your trial