Can a company hold on to your personal documents?
According to the regulations, you are the sole owner of your identification documents, original certificates, and other personal documents. If requested, a company is only allowed to keep a copy but not the original. There are some situations where an employer can for a short period hold on to the originals, which we will address later.
Please note that there is no mechanism to enforce the pertaining laws. In general, the company is afraid that you will leave or do something that will harm the company's interests due to trust (or a lack there of) between employers and employees.
If you think that a prospective employer will give you such a problem, we would suggest that you do not accept working for them. Be honest and behave in a down-to-earth manner but be brave in defending your rights when required. Once a company employs you, then they are a necessary part of the process for handling your release documents. Therefore, you should also be careful how you interact with them to avoid creating much more trouble later on.
You will always need the employer to obtain a work permit cancellation receipt from the Labor Department (SAFEA) and to issue a release letter. Some industries may also require a recommendation letter from the current employer as part of the work permit transfer.
We have frequently heard cases about an employer refusing to provide or assist with issuing such documents or even rejecting the accuracy of the facts presented by the employee to the labor department.
However, most of these issues were traced back to an employee's confrontational behavior, especially when it comes to unjustified leave, bad work attitude, etc.
What do you do when an employer or HR manager still wants to hold on to your original documents?
According to the Labor Contract Law of the People's Republic of China:
Article 9 states:
"If an employer recruits a laborer, it shall not detain the resident's ID card and other documents and may not require the laborer to provide a guarantee or collect property from the laborer in other names."
If an employer retains the original documents without the employee's approval, then the employer violates this law. The employee is then entitled to report complaints to the relevant labor administrative department; however, there are no mechanisms to enforce the law.
Article 84 states:
“If an employer violates the provisions of this Law and detains the ID card of a worker's resident, the labor administrative department shall order it to return the employee within a time limit and shall be punished in accordance with relevant laws and regulations.
If the employer violates the provisions of this law and collects property from the employee in the form of a guarantee or other name, the labor administrative department shall order it to return within a specified time limit, and impose a fine of 500 yuan to 2,000 yuan per person, and if damage is caused, it shall be liable for compensation.
If the employee terminates the labor contract according to law, and the employer detains the employee's file or other articles, it shall be punished in accordance with the provisions of the preceding paragraph.”
中华人民共和国劳动合同法:
http://www.gov.cn/jrzg/2007-06/29/content_667720.htm
Are there specific instances when the employer is allowed to hold your documents for a short period of time?
The new work permit system, in most situations, requires employers to show original documents to the government. In this case, your employer would request all original records for a few days as part of the application process.
The same also applies in the following cases:
- Renewal of work permit with the same employer
- Transfer of work permit to a new employer
For most cities in China, these days, the employee is required to be present when submitting their passport and other documents at the Public Security Bureau for a residence permit, so there should be no reason for your employer to request the originals at that stage in the process to legally work in China.
Can an Employer keep my Foreign Work Permit (FWP) Card?
The FWP is the card that is issued by SAFEA that legally allows a foreign employee to work for the mentioned employer in the specified position. Please note that additional work is not permitted – either part-time or full time and also working in a different position than indicated is not allowed. The latter is a common occurrence in the education industry, for example, that is set up as culture or consulting companies and employ so-called teachers as another role in the company. However, as such are not legally schools or education centers, they cannot employ individuals as teachers, directly.
The FWP is a particular type of document that in Chinese law does not specifically mention if it is the employer or employee rights to keep.
Most employers allow employees to keep their FWP and request it only during renewal or time of company inspection. However, some prefer to safeguard it for all of their foreign employees. From the employer side, this is quite practical because there is no risk of the employee losing the card. If the card is lost, as mentioned in another article, the employer would need to take the necessary steps to replace it.
We recommend you to keep a color copy of your FWP on your phone, where you can scan the QR code to check any information on it when needed.
Contributors:
Are you looking for more useful tips for your life in China? Get in touch with contributors for a consultation and follow us in our WeChat Group to receive the latest news.
Julian (WeChat: julian_beijing) is based in Shanghai but often travels for work and runs a company that works with individuals and organizations doing business between the US, China, and Africa. He has been based in China for a number of years.
Ikky (WeChat: ikky888) is an R&D Manager working in Shanghai. He has been living in China for over 11 years.
Jatin (known by the nickname "Prince Jatin") (WeChat: jatinsoni) is a Multicloud DevOps Engineer working in Shanghai. He has been living in China for over eight years and owns three Indian community WeChat groups known for "Helping Indians" with their specific inquiries.
**************
About us
Expat Services is an online media for English speakers living in Shanghai. We keep you informed about what you should not miss in Shanghai, and soon in some other cities of China.
Our media is on ex-s.cn and our official account: Expat ServicesSH. We also broadcast and interact with our community on Western media.
We offer targeted information about networking, associations, professional clubs, events, tips, things to discover and promotions from many shops and other service providers in Shanghai.
By joining our WeChat groups, you can exchange and share with our community. Please add our support service team (WeChat ID : ExS-SH). We will add you in different groups.
To get your free ExS Membership Card,
click on the card
Our network is Your network, join us!
Discover our different sections,
Click on it below
---------------------
---------------------
---------------------
---------------------
---------------------
---------------------
---------------------