Tax and unlawful employment

Risks of unlawful employment in China

The legitimate rights of the foreigners that are employed unlawfully in China may not be protected due to their illegitimate identities.

(1) Personal rights may be infringed. For example, an employer may require the unlawfully employed foreigners to conceal their names and use the names of the persons enjoying legitimate rights to employment; an employer may often use the portrait of these foreigners in advertising without their consent; an employer may restrict the personal freedom of the unlawfully employed foreigners or even illegally detain them; when disputes arise between foreigners and the employer on job-related injuries or accidents, their lives can’t be saved in a timely manner and their life safety can’t be guaranteed; when foreigners fight with other employees, they can’t claim their rights or obtain appropriate compensation.

(2) Property rights may be infringed. For unlawfully employed foreigners in China, the infringed property includes both tangible property and intellectual property rights. For example, the employer may generally require these foreigners to pay the so-called deposit or risk mortgage for various reasons and once they leave the employer, this deposit will not be refunded. In the performance of their duties, copyright, patent right and other property rights enjoyed by unlawfully employed foreigners tend to be deprived of by the employer due to their unlawful employment status.

(3) Labor rights may be infringed. For example, the employer may not pay remuneration on time, or may deduct wages or salaries without authorization; deprive the foreigners of their rights to rest and vacation by arranging the workload beyond working time without overtime payment; not product basic pension insurance, basic medical insurance, work-related injury insurance, unemployment insurance or maternity insurance registration, or guarantee the safety and health of the working environment.

In addition, unlawful employment of foreigners in China is an offense, which will result in penalties. In accordance with Rules Governing the Implementation of the Law of the People’s Republic of China on the Entry and Exit of Aliens, aliens who found employment without permission from the Ministry of Labor of the People's Republic of China or its authorized departments shall have their posts or employment terminated and may at the same time be fined up to 1,000 yuan (RMB), and those whose offenses are serious may at the same time be ordered to leave the country within a specified time.