Foreigners who work in China will likewise experience a similar labor dispute as the Chinese people do. We often receive inquiries from foreigners on how to resolve disputes with the employment company.

Because of labor disputes with foreign employees, some employers are unwilling to provide a release letter and work permit cancellation forms, which will affect the employee‘s next work visa application and affect their legal work and accommodation in future in China.

Generally speaking, the legal methods to resolve labor disputes include labor arbitration and litigation in court (file a lawsuit). Here, we will explain labor arbitration, and how can foreign employees apply for labor arbitration in China.

01 What is labor arbitration?

Labor arbitration is a necessary procedure for the parties to a labor dispute to bring a lawsuit to the people's court. If the parties are dissatisfied with the results of the arbitration, they can further file a lawsuit.

02 Can foreigners apply for labor arbitration?

Yes.

According to the relevant regulations on the employment management of foreigners in China, labor disputes between employers and foreigners who are hired shall be handled in accordance with The Labor Law of the People's Republic of China and The Regulations On The People's Republic Of China On Settlement Of Labour Disputes In Enterprises.

Note: Obtaining legal employment qualifications is necessary for foreigners to initiate labor arbitration.

03 What are the general situations in which foreigners need labor arbitration?

Disputes handled by general labor arbitration include:

• Disputes about the confirmation of a labor relationship;
• Disputes about the conclusion, performance, modification, rescission or termination of a labor contract;
• Disputes about the removal or layoff of an employee or the resignation or retirement of an employee;
• Disputes about the work hours, breaks, vacations, social insurance, benefits, training, or labor safety;
• Disputes about the labor remunerations, medical expenses for a work-related injury, economic indemnity, compensation, etc.

04 How to apply for labor arbitration?

Foreigners can apply for labor arbitration at the labor arbitration office of the administrative region where their company is located.

The materials generally required are:

• Passport
• Work permit
• Relevant evidence (videos, documents, labor contracts, and other supporting documents)

The Arbitration Commission shall make a decision on acceptance or rejection within five days from the date of receipt of the arbitration application.

According to our experience, generally, the service handling form will be obtained on the day when the application is filed.

05 The suggestion to enterprise

Release letter is a certification letter provided by the employer, stamped with the corporate seal. Generally speaking, a release letter mainly includes: the name of the employee, passport number, the start date of the work, the position, the end date of the work, the company name and the date when the letter is issued.

Release letter mainly has three functions:

1. Only after the foreign employee gets the release letter, can he or she apply for the cancellation certification of work permit and move on to the next company smoothly. 
2. A foreign employee needs to provide the copy of release letter when he or she applies to the Exit-Entry Administration Bureau for the cancellation of the residence visa. 
3. A foreign employee must provide the original copy of the release letter from the previous company in order to get a new working visa, when he or she goes to the next company. 

Therefore, the release letter is essential in the job change for foreign employees.

According to Article 50 of The Labor Law of the People's Republic of China the employer shall issue a certificate of rescission or termination of the labor contract when rescinding or terminating the labor contract. And The Labor Law also stipulates that if the employer violates this provision and causes harm to the employee, it shall assume compensation liability.

Here, we suggest that the enterprise should issue the release letter to the employee on the day of resignation.

J & K could assist you with labor arbitration in Shanghai regarding:

• Consulting;
• Material preparation;
• Accompanying to the labor arbitration office & translation;
• Visa processing afterward: Cancellation of permits / New applications etc.

If you have any related needs, please feel free to contact us: 8621 - 5178 5021