My employer won’t give me release documents. Is that legal?

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 Reliant on the Law

My employer won’t give me release documents.

Is that legal?

This is a common issue that many foreign employees face, especially those in the education sector.

According to Labor Contract Law Article 50 (LCL 50) the employer is required to provide a cancellation certificate to the employee at the time when the contract is cancelled or ends. The 15 day time limit mentioned in LCL 50 is for the employer to transfer the Chinese personnel file (档案) and social insurance (社保). (Foreigners should have social insurance, but do not have a Chinese personnel file.)

For foreigners the key release document is the Cancellation Letter (外国人来华工作许可注销证明 or 注销单) issued by the Foriegn Experts Bureau ( FEB or 外专局 or SAFEA). Besides the Cancellation Letter from the FEB, also ask for a Release Letter (离职证明) or Work Experience Letter (工作资历证明) or Recommendation Letter (推荐信). Usually any of those is simply a letter written and stamped by the employer, and you should check with your new employer and local FEB to see exactly what they will need in addition to the Cancellation Letter to apply for the new work permit.

If your former employer will not give you the release documents and that causes you documentable economic damages, you can use LCL 89 as the basis for a labor arbitration claim against your former employer. If you can document the loss of a job based on the illegal delay in getting your release documents you may have a potentially large damages claim. Letting the former employer know about this potential claim can give you leverage in negotiating to get the release documents, but make sure you have proof for your claim. When negotiation alone is not enough actually filing an arbitration claim may well be. It should also be possible to involve Labor Supervision in efforts to obtain release documents based on that department's labor administrative role, however practices may vary across localities.

In Article 24 of the Implementation Regulations for the LCL, the content of the cancellation certificate mentioned in LCL 50 and 89 is specified. The elements - term of the employment contract, the date contract terminated, the position of the employee, time working for the employer - are the minimum required of a Release Letter. Adding more about the nature of the job can change the Release Letter to a Work Experience Letter, and adding an evaluation of the employee to the job description can make the document a Recommendation Letter. Note, some locations require specific forms be used for Recommendation Letters, especially in the education sector. Finally, the Cancellation Letter form and content are fixed because the Cancellation Letter is issued by the FEB and not by the employer.

LCL and the Implementation Regulations were originally written to apply to all persons in China, the vast majority of whom are Chinese and do not require Work Permits nor Work Permit Cancellation Letters. And they were written before the present work permit system was established, for these reasons LCL and the Implementation Regulations do not specifically mention the Cancellation Letter. However, in the case of non-Chinese citizens legally working in China, the requirements in LCL 50 and 89 can also be understood to apply to the FEB issued Cancellation Letter, as it is proof of cancellation of the work permit and thus proof of termination of the labor relationship. This is because, as per Article 14 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Labor Disputes (4), the Work Permit is proof of the existence of a labor relationship and a contract alone is not.

So is it illegal for your employer to refuse to give you your release documents? Yes it is, but when you are Reliant on the Law you can protect your labor rights.

Cancellation Letter

-Comes from the Foreign Experts Bureau (FEB)

-Fixed format

-Has barcode

-Has red chop from the FEB

Release Letter/Work Experience Letter/Recommendation Letter

-Comes from the employer

-No fixed format

-Has red chop from the employer

References

Labor Contract Law of the PRC

http://english.www.gov.cn/archive/laws_regulations/2014/08/23/content_281474983042501.htm

中华人民共和国劳动合同法

http://www.gov.cn/flfg/2007-06/29/content_669394.htm

Article 50

When discharging or terminating a labor contract, the employer shall issue a certification for the discharge or termination of the labor contract simultaneously and shall complete the procedures for the transfer of the worker's archives and social security relationship within 15 days.

The worker shall go through the procedures for the handover of his work as stipulated between both parties. In case the employer shall pay an economic compensation to the worker as required by relevant provisions of this Law, it shall make a payment upon completion of the procedures for the handover of the work.

The text of the discharged or terminated labor contracts shall be preserved by the employer for at least two years for reference.

第五十条

用人单位应当在解除或者终止劳动合同时出具解除或者终止劳动合同的证明，并在十五日内为劳动者办理档案和社会保险关系转移手续。

劳动者应当按照双方约定，办理工作交接。用人单位依照本法有关规定应当向劳动者支付经济补偿的，在办结工作交接时支付。

用人单位对已经解除或者终止的劳动合同的文本，至少保存二年备查。

Article 89

Where any employer is in violation of this Law because of failing to issue a certificate in written form for the discharge or termination of a labor contract to a worker, the labor administrative department shall order it to make a correction. If any damage occurs to the worker, it shall bear the liability for compensation.

第八十九条

用人单位违反本法规定未向劳动者出具解除或者终止劳动合同的书面证明，由劳动行政部门责令改正；给劳动者造成损害的，应当承担赔偿责任。

Implementation Regulations for the Labor Contract Law of the People’s Republic of China

http://www.fdi.gov.cn/1800000121_39_521_0_7.html

中华人民共和国劳动合同法实施条例

http://www.gov.cn/zwgk/2008-09/19/content_1099470.htm

Article 24

An employment contract dissolution or termination certificate issued by an employer shall bear the term of the employment contract, the date when it is dissolved or terminated, the position of the employee and the working time of the employee with this employer.

第二十四条　

用人单位出具的解除、终止劳动合同的证明，应当写明劳动合同期限、解除或者终止劳动合同的日期、工作岗位、在本单位的工作年限。

Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Labor Disputes (4)

最高人民法院关于 审理劳动争议案件适用法律若干问题的解释（四)

http://www.court.gov.cn/zixun-xiangqing-5064.html  

Article 14

Foreigners and stateless persons have signed employment contracts with employers in China without obtaining employment certificates in accordance with the law, and residents of Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan who have signed labor contracts with employers in the Mainland without obtaining employment certificates in accordance with the law. In the case of a contract where the parties request confirmation of an employment relationship with the employer, the people's court will not support it.

A foreigner who holds a Foreign Expert Certificate and has obtained a Foreign Expert Work Permit in China that establishes an employment relationship with an employer in China may be considered to have a labor relationship.

第十四条

外国人、无国籍人未依法取得就业证件即与中国境内的用人单位签订劳动合同，以及香港特别行政区、澳门特别行政区和台湾地区居民未依法取得就业证件即与内地用人单位签订劳动合同，当事人请求确认与用人单位存在劳动关系的，人民法院不予支持。

持有《外国专家证》并取得《外国专家来华工作许可证》的外国人，与中国境内的用人单位建立用工关系的，可以认定为劳动关系。

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This article is the author’s original, non-profit work product. The original author and publishing information must be retained in any reproductions. For commercial use, please contact the author: [e-mail].

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We can help you get better results when in a China labor dispute. We offer nationwide strategy consulting, planning, translation, and editing services, as well as work permit processing and consulting, and we can act as an agent for many matters in Beijing.About Reliant
Reliant’s co-founders are Josh and Lee. Josh is a former Fullbright Scholar educated at Yale and Tsinghua University. He is a native English speaker who has been featured on Chinese language television programs for his Mandarin language abilities, and has lived and worked in China since 1999. A native of Beijing, Lee was educated at Renmin University and holds a Chinese Human Resources Professional certificate. As specialized labor consultants we know China labor laws and administrative regulations. We are not lawyers but we work with attorneys as needed.Click here！