1. Assess the arrangement, rather than the label
Article 7 of the PRC Labor Contract Law establishes the employment relationship from the date the employer actually starts employing the worker. An offer date, an HR-system entry or a later signature is therefore not necessarily the starting point. A genuine recruitment exercise may differ from employment, but a short duration or an “unpaid” agreement does not by itself settle that distinction.
Item 1 of the Notice on Matters concerning the Establishment of Employment Relationships, Lao She Bu Fa [2005] No. 12, identifies concurrent conditions where no written contract exists: qualified parties; application of the employer’s lawful labor rules and management to remunerated work assigned by it; and work forming part of its business. Review those elements together. Regular shifts, reporting lines and usable client deliverables are relevant facts; neither one isolated badge nor the absence of a completed payroll payment determines the result.
2. Reconstruct the actual first working day
Compare the offer and contract with messages assigning work, schedules, attendance, access records, instructions and dated outputs. Distinguish a limited simulated skills test from a candidate covering an operational role under the company’s direction. Keeping an assessment separate from productive operations helps clarify the facts; a document declaring that no employment exists cannot override actual employment. There is no general exemption in Articles 7 and 10 for a few days of trial employment.
Under Article 10, a written employment contract must be concluded within one month of actual employment if it was not concluded at the start. Where the contract is signed before work begins, the relationship starts when employment actually begins. This one-month rule does not create a wage-free period or permit HR to replace the real start date with a later date. Keep the true signing date and document the actual commencement date accurately.
3. Resolve the pay obligation before closing the trial
If the arrangement constitutes employment, Article 30 requires timely and full payment of labor remuneration. Review the agreed pay, actual work, working-time records and applicable minimum-wage requirements. Where no written contract was concluded at the time of employment and the agreed remuneration is unclear, Article 11 directs payment under the collective contract; without one, or where it is silent, equal pay for equal work applies. Do not treat an uncertain rate as a zero rate.
A candidate’s signature on a waiver is not enough to remove statutory duties. Articles 26 and 28 address invalid contractual terms, including exemption of the employer’s legal responsibility, and remuneration for work already provided under an invalid contract. If employment has begun, a decision not to continue also needs a lawful exit assessment. Paying for the trial does not, by itself, make a subsequent dismissal lawful.
4. Do not add a separate trial before statutory probation
Article 19 provides that probation is included in the employment-contract term and may be agreed only once between the same employer and worker. If a contract provides only for probation, that probation is invalid and the stated period counts as the contract term. An employer cannot create a separate category of employment outside the contract merely by calling the first period a pre-hire trial. Check the actual arrangement and any valid probation agreement before fixing its dates.
Probation also depends on the contract type and term: a contract shorter than three months or tied to completion of a specific task cannot include it. The separate rules for non-full-time employment prohibit probation under Article 70. Even a valid probation period is paid employment subject to Article 20, and employer termination during it is limited by Article 21. A recruitment assessment and a lawful probation arrangement therefore need different documents and decisions.
5. Give managers a clear gate before work begins
Ask the hiring manager to specify the assessment purpose, tasks, duration, supervision, expected output and whether the business will use it. If the proposal is actual employment, arrange the contract, pay and required employment formalities on that basis before work starts. For a genuine skills assessment, define a limited exercise and prevent it from silently becoming ordinary staffing. No standard “trial form” can substitute for managing what happens in practice.
For review, retain the offer, proposed and signed contracts, trial instructions, candidate communications, attendance, work outputs and pay records. Item 2 of the 2005 Notice lists evidence of employment and places the burden for wage/social-insurance records, recruitment records and attendance records on the employer. Preserve originals, including facts that do not support the preferred start date. For an initial consultation, identify the China entity, city, actual tasks and earliest work date; detailed employee material can follow through an agreed confidential channel.
Legal sources
Official sources · Checked 2026-11-05. Translations are for reference and are not official legal texts.
- PRC Labor Contract Law (2012 amendment) ↗
Articles 2, 7, 10–11, 19–21, 26, 28, 30 and 70: scope, employment commencement, written contracts, pay, probation and relevant exceptions.
- Notice on Matters concerning the Establishment of Employment Relationships, Lao She Bu Fa [2005] No. 12 ↗
Items 1–2: concurrent conditions and evidence where there is no written employment contract; official provincial republication of the national notice.
General information about mainland China. The facts, applicable dates and local rules require individual review.
Partner, Beijing ChangAn Law Firm
China-qualified since 2019 · Beijing & Shenzhen
Review trial work before setting the employment start date
Check the actual work, contract timing and pay records with the China employer. Consultations are in Chinese and English.
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