Requirement for Foreign Employees to Work
If an employer intends to hire a foreign national, they must submit an application for a work permit on behalf of the foreign national to the appropriate authority. In most instances, when an employer seeks to employ a foreign national in Taiwan, they are required to execute an employment contract with the foreign national and prepare the requisite documentation to apply for a work permit for foreign professionals. The maximum duration for each work permit application for foreign professionals is three years. An application for extension may be submitted prior to the expiration of the employment period, and there is no cap on the number of extensions that may be granted.
Relevant regulations include the Employment Service Act, the Regulations on the Permission and Administration of the Employment of Foreign Workers, and the Qualifications and Criteria Standards for Foreigners Undertaking the Jobs Specified Under Subparagraphs 1 to 6 of Paragraph 1 of Article 46 of the Employment Service Act, among others.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
The Labour Standards Act (LSA) does not specifically forbid a foreign employer to directly hire an employee to work in Taiwan. However, please note that under the Company Act, a foreign company without making a branch office registration may not conduct its business operations in the name of a foreign company in the territory of Taiwan. Any person violating the aforementioned will be punished with imprisonment for a period of not more than a year, short-term detention, or in lieu thereof or in addition thereto a fine of not more than NT$150,000 and shall assume on his/her own the civil liabilities arising therefrom, or shall be jointly and severally liable therefor in case there are two or more violators. In addition, the violator shall be forbidden by the competent authority from using the name of the foreign company. In practice, local courts hold a relatively wide interpretation of the definition of “business operations.” Whether a foreign company is conducting business operations in Taiwan will be subject to the court’s review and discretion on a case-by-case basis.
Limitations on Background Checks
Within the scope of reasonable necessity, a company may conduct appropriate background checks based on personnel management needs. However, it is important to note that Subparagraph 2 of Paragraph 2 of Article 5 of the Employment Service Act explicitly prohibits employers from requiring employees to furnish personal information that is not essential for employment; failure to comply with this provision constitutes an unlawful infringement on personal privacy.
Restrictions on Application/Interview Questions
Pursuant to Article 5 of the Employment Service Act, in order to ensure equal employment opportunities, employers shall not discriminate against job seekers on the basis of sexual orientation, age, marital status, appearance, physical or mental disabilities, zodiac sign, blood type, and other similar characteristics. The Gender Equality in Employment Act further stipulates that employers shall not engage in differential treatment on the basis of gender or sexual orientation during the recruitment of job seekers. Should an employer specifically inquire about such matters during an interview and subsequently choose not to hire the candidate, it may give rise to reasonable suspicions of employment discrimination. Should an employer be found in violation of these regulations, they shall be subject to administrative penalties.
