Hiring interns in China (like so much else having to do with China employment laws) is complicated and local. And when I am tasked with figuring out how one of our clients may legally do that, I almost always have to review applicable national, provincial and local laws and regulations and engage in followup conversations with the relevant authorities. Not only are there multiple legal layers involved in hiring an intern in China, but those layers are often inconsistent. This is nothing unusual for China employment law. See China Employment Law: Local and Not So Simple.
A domestic or a foreign company in China may not legally “employ” student interns and student interns that “work” for a company in China are not in a labor relationship under China’s labor laws. China’s Labor Contract Law is silent on how student interns should be treated. However, this does not mean a Chinese company can or should retain student interns without written documentation. For example, in Jiangsu Province, any company that wants a student intern must execute a formal written agreement with the student intern’s school. There are no hard and fast rules regarding the format of this agreement, but when drafting these for Jiangsu Province, we include the following:
- The term/duration of the internships
- The responsibilities of the employer
- The responsibilities of the school
- The hours and shifts of the internship
- The intern’s compensation
- Applicable provisions on labor protection
- Applicable provisions addressing accidents, injury, and death.
Just by way of a quick contrast, in Ningbo, a three-party internship agreement (实习协议) is required between the hiring company, the school and the student or the student’s parents.
Another important issue is compensation. In Jiangsu, all interns must be paid directly by the company and such payments must meet local minimum wage requirements. In Shanghai and Ningbo, however, the minimum compensation payable to student interns is lower than the standard local minimum wage. Ningbo specifically requires student interns who continuously work for a company for three months or more to be paid at least 50% of the preceding year’s local minimum wage.
The number of hours an intern can work each day and each week are also all across the board. For example, student interns in Ningbo should work no more than 8 hours a day, whereas Jiangsu Province regulations generally limit interns to 6 hours a day and 30 hours a week, with at least two days off each week.
Bottom line: Though the rules concerning student interns can vary greatly from city to city and province to province, what is consistent between nearly all of them is that they will not tolerate foreign companies using student interns as free labor, especially when labor protections are ignored. If you are using student interns or are contemplating doing so, make it your New Year’s resolution to do it correctly.