外国人在中国工作必知的法律知识（附英文版）

外国人在中国工作必知的法律知识

中国对在华工作的外籍员工采用国民待遇原则，即《劳动合同法》对中国员工的规定同样适用于外国人，但是外籍员工仍有特殊之处，了解这些不同之处，外籍员工才能保证在中国工作的合法性并保障个人的合法权利。

一、 必须持有工作签证

如没有工作签证属于非法就业，不属于劳动关系，而是一般民事争议，由法院管辖。对于非法就业，外籍员工及用人单位可能面临罚款等惩罚措施。

二、 对工资、年休假、经济补偿金等福利待遇约定可以高于上海当地标准

年休假期限可以多于5天、10天、15天的规定，并约定未休的年休假的补偿可以按高于3倍工资的标准支付；经济补偿金一般为当年平均工资，且不高于上海平均3倍工资，但外籍员工与公司可约定高于此标准。前述内容如果未在合同中约定，则按照上海当地标准计算。

三、 上海地区不强制交社保，员工与用工单位协商决定

外籍员工和公司可约定缴纳或不缴纳社保，不是强制性缴纳。外籍员工可以在医疗、购房等使用社保款项，结束在中国的工作后，上海地区社会及劳动保障局现行方式是不允许外籍人士将缴纳过得费用退还给员工。

四、 劳动仲裁在上海市劳动人事仲裁委员会

劳动争议案件有外国籍自然人时，由上海市劳动人事仲裁委员会审理，地址为普陀区西乡路188号。

除了上述事宜，公司和外籍员工仍有很多事项需要协商和关注，从而建立合规、完善的劳动关系。

Legal issues must be known by foreigners working in China

China applies the principle of national treatment to foreigners working in china which means the labor contract laws are applicable to foreign employee. But there are some specialties to foreign employee of which are supposed to be known well to work legally and protect lawful rights.

1. Gets work visa: the employment relationship is illegal if the foreign employee doesn’t get work visa. If dispute occurs it is civil case not labor case which is under the jurisdiction of court not labor dispute arbitration committee.

2.The welfares such annul leave and economy compensations etc. can be higher than shanghai local standard: foreign employees can get longer annul leave than the days according to laws and local regulations which are 5days,10days and 15 days if agreed by company and employee. Also employee can be compensated triple times of salary on days of annul leave he doesn’t have. The maximum of economy compensation for a working year is nearly 19K RMB according to local standard which is much lower than the salary per month of some foreigner who is high management staff. Foreigner can get economy compensation same as his actual salary if agreed in the labor contract. Besides of all above, there are still many welfares for foreigners can get better than local regulations only agreed in labor contract, or else local standard will prevail.

3.Paying social insurance is not mandatory which is determined by the agreement of company and foreign employee : payment of social insurance agreed by company and foreign employee can be consumed on medical treatment etc, but can’t be refunded when foreign employee leaves china after terminating labor contract in shanghai.

4. Labor dispute of foreign employee is under the jurisdiction of shanghai labor dispute arbitration committee:District Labor dispute arbitration committee doesn’t have the jurisdiction on dispute in connection with foreign employee. The address of shanghai labor dispute arbitration committee is xixiang road No.188,putuo district.

Besides all above, there are many labor issues need to be paid attention to and negotiated by company and foreign employee for establishing a compliant and complete labor relationship. Any further questions, welcome to add wechat underneath for professional legal opinions.