Recruitment and Hiring in China: A Compliance Guide for Foreign Employers

Why the hiring stage decides your labour-law risk in China

A wholly foreign-owned enterprise, a joint venture and a representative office in China are all employers under Chinese labour law, and the obligations start earlier than most foreign managers expect — from the moment a vacancy is advertised, not from the day the employment contract is signed. Recruitment advertising, interview questions, pre-employment medical checks, background screening, onboarding paperwork and probation terms are each regulated, and breaches carry fines, compensation orders and, in discrimination cases, the risk of a claim in the People’s Court.

This guide walks through the hiring process in the order it happens, sets out the specific obligations at each step, and lists the penalties that follow when they are missed.

Equal employment and the employer’s freedom to hire

Workers in China have the right to equal employment and to choose their occupation freely, and an employer’s right to decide whom it hires operates inside those limits. An employer may select its own staff, but it must protect employees’ lawful rights and may not discriminate on the basis of ethnicity, race, gender or religious belief.

1. Recruitment advertising must not be discriminatory

Recruitment notices and job advertisements must not contain discriminatory content. The information an employer publishes itself, or supplies to a human resources service agency — company background, headcount, hiring conditions, job content, workplace and basic remuneration — must be truthful and lawful, and must not contain content that discriminates on the grounds of ethnicity, race, gender or religious belief.

Advertisements may not discriminate against women on the basis of gender, and broadcast, television, newspaper and internet media may not publish recruitment notices or job advertisements that discriminate against women. In practice this means writing the advertisement around the duties and the objective requirements of the post, and avoiding wording that narrows the field by personal characteristics rather than ability.

2. Hiring conditions you are not permitted to impose

Unless national rules provide otherwise, an employer may not do the following during recruitment:

• restrict marriage or childbirth, or treat marital or childbearing status as a condition of recruitment;
• refuse to recruit women, or apply a differentiated standard to women, on the basis of gender;
• require a pregnancy test as a recruitment or onboarding item;
• refuse a candidate because they carry an infectious disease pathogen — with a narrow exception: until such a carrier is cured or a suspicion of transmission is ruled out, they may not work in jobs that laws, administrative regulations or the State Council health department have designated as capable of spreading an infectious disease.

Because the employer, not the candidate, normally has to explain a rejection once a dispute begins, consistent interview records and job-related selection criteria are the practical protection here.

3. Candidates you must not hire

Posts can carry statutory occupational prohibitions, and an employer must screen for the ones that apply before making an offer. These prohibitions include:

• workers under 16 years of age, who may not be employed at all;
• posts with corresponding health requirements, where the candidate does not meet them;
• posts where the applicable rules require the candidate to be free of a criminal record.

Hiring someone who is subject to an occupational prohibition exposes the company to an order to correct within a time limit, a warning, a fine, or an order to suspend business for rectification and the revocation of the business licence or the relevant permit.

4. Issue offers deliberately

Civil conduct in China is subject to the principle of good faith: parties must act honestly and honour their commitments. If an employer withdraws an offer without a legitimate reason, negotiates in bad faith, conceals a material fact relating to the contract, or provides false information, and the other party suffers loss, the employer is liable to compensate.

The practical approach is to make the offer conditional and explicit — a stated acceptance deadline, the conditions that must be satisfied (medical check, background check, reference or release letter) and the circumstances in which the offer may be withdrawn — and to keep the offer wording consistent with the employment contract that follows it.

Pre-employment medical checks: what is required, what is prohibited

Workers have the right to occupational safety and health protection, and that right shapes what an employer may and must check before a person starts work.

What is required

• Juvenile workers — employees aged 16 to under 18 — must receive a health examination before a post is assigned to them.
• Pre-employment occupational health examinations are mandatory for (i) new hires who will be exposed to occupational hazards, including employees transferred into such a post, and (ii) posts that carry special health requirements. An employer must not assign a worker who has not had the pre-employment occupational health examination to work involving exposure to occupational hazards.
• Staff who directly serve customers in public places, and food producers and operators working with directly edible food, must hold a valid health certificate before starting work. People suffering from diseases designated by the State Council health authority that affect cosmetics quality may not work directly in cosmetics production. For hazard work — including work at height, electrical work and professional driving — the pre-employment occupational health examination is compulsory.

What is prohibited

Check items must correspond to the post, and discriminatory items may not be included. Apart from work that the law, administrative regulations or the State Council health department prohibit hepatitis B virus carriers from performing, an employer may not force hepatitis B virus serology indicators as a medical check item, and pregnancy tests may not be used as an onboarding item.

Penalties

• Arranging a discriminatory pre-employment medical check: the labour security administration orders correction and may impose a fine; losses caused to the individual must be compensated; discrimination claims may be brought in the People’s Court.
• Assigning a worker who has had no occupational health examination, or who has an occupational contraindication, to work involving occupational hazards or prohibited work: the administrative department orders remediation within a time limit and imposes a fine of CNY 50,000 to CNY 300,000; in serious cases it orders the hazardous operation to stop, or petitions the people’s government to close the operation under the authority set by the State Council. Occupational disease patients also retain a civil claim for compensation in addition to work-injury insurance.

Background checks: consent, scope and verification

Obtain consent first. A personal information handler may process personal information only with the individual’s consent, unless the processing is necessary to conclude or perform a contract to which the individual is a party, or is necessary for human resources management carried out under lawfully adopted labour rules and a lawfully concluded collective contract. In practice, a written, signed consent that identifies the scope of the check is the safest basis.

Keep the scope tied to the job. An employer has the right to know the circumstances that are directly related to the employment contract, and the worker must answer truthfully. That right covers education history, work experience, technical skills and salary expectations when they are relevant to the post — and stops there: information not directly related to the post or the person’s ability to do the work falls outside it. During recruitment an employer may not, beyond basic personal information, question or investigate a female candidate’s marital or childbearing status.

Verify the candidate is free to join. Ask for the release certificate issued by the previous employer, so that you can confirm the earlier employment relationship has been terminated or ended, that no labour dispute is outstanding, and that the candidate is not subject to an unexpired non-compete restriction.

Penalties

• Investigating information unrelated to the employment contract: exposure to an employment discrimination claim, and tort liability for infringement of personal information rights — a handler that cannot prove it was not at fault must compensate for the loss caused.
• Failing to verify an employment restriction: if you recruit a worker whose contract with another employer has not yet been dissolved or terminated and that employer suffers loss, you bear joint liability for compensation. A third party that knowingly or constructively knowingly obtains, discloses, uses or permits the use of a trade secret through a current or former employee, a partner or another party commits trade secret infringement; and where an employee breaches a non-compete obligation and the loss exceeds the agreed liquidated damages, the company may claim compensation from the responsible party.
• Dismissing on the basis of irrelevant information: this is an unlawful termination, and compensation is payable at twice the statutory severance standard.

Onboarding: registration, contracts and records

The employment relationship is established from the first day the worker starts work. That single fact drives the onboarding obligations:

• Employment registration and records. Keep an employee roster available for inspection that accurately records, for both directly employed and dispatched workers, name, gender, identity document number, registered address and current address, contact details, form of employment, start and end dates, contract term and post. Keep a recruitment file containing the onboarding registration form and a copy of the worker’s identity document.
• Written contract within one month. A written employment contract must be concluded; where the relationship has already begun without one, it must be concluded within one month of the first day of work.
• Agreed hiring conditions. Define the hiring conditions in writing — they are the assessment criteria used during probation, and they are what allows a probation dismissal where the employee is proven not to meet them.
• Notify employees of the rules. Rules and major decisions that directly affect employees’ interests must be publicised or notified to them.
• Never take documents or money. An employer may not retain a worker’s residence identity card or other documents, may not require a guarantee, and may not collect money or property in any other name.

Penalties

• Weak registration, no agreed hiring conditions, or no notification of internal rules: the employer bears the adverse consequences of failing to discharge the burden of proof in a labour dispute — and for disputes over dismissal, removal from the roster, termination, wage reduction or the calculation of years of service, the employer carries that burden.
• A written contract concluded later than one month but within one year after work began: double wages for every month from the second month.
• Retaining identity documents: the labour department orders their return within a time limit; collecting property or guarantees: the labour department orders the return and imposes a fine of CNY 500 to CNY 2,000 per person, with compensation payable for any loss caused.

Probation: the rules that most often catch foreign employers

Duration and structure

• Only one probation period may be agreed between the same employer and the same employee, and probation is included within the contract term.
• Contract term of three months to under one year: probation may not exceed one month.
• Contract term of one year to under three years: probation may not exceed two months.
• Fixed-term contracts of three years or more, and open-ended contracts: probation may not exceed six months.
• Contracts of under three months, and task-based contracts completed on delivery of a specified task: no probation may be agreed at all.
• If a contract provides only for a probation period, the probation does not stand and that period is the contract term.

Probation pay

Probation wages may not be lower than 80% of the lowest wage for the same post in the company, or lower than 80% of the wage agreed in the employment contract, and may never be below the local minimum wage.

Assessment and termination

Except in the circumstances set out in Articles 39 and 40(1) and (2) of the Labour Contract Law — which include an employee proven during probation not to meet the hiring conditions — an employer may not terminate the contract during probation, and when it does terminate it must explain the reason to the employee. Assessment should be carried out during the probation period against the agreed hiring conditions, and the employee should confirm the assessment, so that the company can show both the criteria and the result.

Penalties

• Probation wages below the floor: the shortfall must be paid.
• Probation period longer than the law allows: the labour administrative department orders correction; where the over-long probation has already been served, compensation is payable for the excess period based on the employee’s wage after probation. Specifically, the wage standard for the period beyond the lawful probation must be topped up to the post-probation wage, compensation for the excess period already served is paid at the post-probation wage, and a dismissal for “failure to meet the hiring conditions” made only after the lawful probation period has expired is an unlawful termination requiring compensation for unlawful dismissal.

Penalties at a glance

Frequently asked questions

Can we ask a candidate about marriage plans or children?

No. Marital and childbearing status may not be treated as a recruitment condition, and beyond basic personal information you may not question or investigate a female candidate’s marital or childbearing status. Keep questions to the duties of the post and the candidate’s ability to perform them.

Can we test for hepatitis B during the pre-employment medical check?

Not as a general requirement. Except for work that laws, administrative regulations or the State Council health department prohibit hepatitis B virus carriers from performing, hepatitis B virus serology may not be forced as a check item. A pregnancy test is likewise not a permitted onboarding item.

Do we need the candidate’s consent for a background check?

Yes. Processing personal information requires the individual’s consent unless it is necessary to conclude or perform a contract with that individual or for human resources management under lawfully adopted rules and a collective contract. Obtain written consent that specifies what you will check, and keep the check within matters directly related to the employment contract — education, experience, skills and the release letter from the previous employer.

How long can a probation period be?

One month for a contract of three months to under one year, two months for one year to under three years, and up to six months for a fixed-term contract of three years or more or an open-ended contract. Contracts under three months and task-based contracts may not include probation, and probation may only be agreed once.

What happens if we do not sign a written contract in the first month?

The employment relationship has already begun on the first day of work. If the written contract is concluded more than one month but less than one year after that date, the employer owes double wages for each month from the second month.

Can we hold an employee’s passport or ID during onboarding?

No. Retaining a worker’s residence identity card or other documents, requiring a guarantee, or collecting money or property in any other name is prohibited; the labour department orders the return and may fine the employer CNY 500 to CNY 2,000 per person.

How we can help

Dan Young Business Consultancy supports foreign-invested companies and representative offices with employment documentation, HR and payroll compliance, work permits and visas, and labour-law advice. Review our HR & payroll services, browse the China labour and employment laws directory, or look at our legal services. To review your recruitment and onboarding documents against the rules above, contact us.