As China inexorably continues increasing its restrictions on hiring personnel via third party employment agencies (sometimes referred to as FESCO companies or as staffing agencies), our international employment lawyers are increasingly being tasked with helping clients move personnel from third party hiring companies to newly formed or existing WFOEs.
The usual procedure for moving an “employee” from a third party hiring company to a WFOE is as follows:
1.Terminate the contracts with the hiring agency. Terminate the contract between your (foreign) company and the hiring agency and terminate the contract between the hiring agency and your “employee.”
2. Upon resignation, the employee is immediately hired by the WFOE pursuant to a Chinese employment agreement. There is NO time gap.
3. Normally, the third party hiring agency will allow you to terminate your contract with them, so long as the employee voluntarily resigns and you pay any fees owed to the employee and to the third party agency and you sign an agreement freeing the third party hiring agency of any liability surrounding the employee. In many cases, you will want to continue using the third party hiring agency as your outsourced payroll department to take care of the administrative side of salary payments and employer taxes and benefits. If you keep the third party agency on in this capacity, it will usually be delighted to terminate the employment agent relationship to move into a standard benefits processing arrangement.
- The employee will not want to lose seniority in the employment relationship.
- The employee will not want to be placed in a setting where they are in a probation period.