Documents describing the temporary employment operations of Chinese businesses are typically translated in such a way that they would be misunderstood by most English speakers. Even native Chinese speakers educated in the United States and having worked there for many years as lawyers are similarly unable to understand these translations. Thus, this is a curious case of a translation practice where most practitioners of translation are translating documents in a way that can only be reliably understood by other translators. Arguably, these documents are useless or even hazardous to anyone who does not already speak Chinese. The problem seems to occur when translators rely on machine translation programs or online dictionaries that translate the Chinese source words for temporary employment into the words “labor dispatch.”
What is “labor dispatch”?
“Labor dispatch” is actually a bad legal translation for Chinese businesses that perform the same function as temporary staffing agencies. The high level of similarity can be seen in Shen Bowen’s analysis of Chinese law:
“Staffing refers to a method of employment where staffing agencies assign contingent workers to clients at their request, and the client pays the staffing companies directly. The only employment relationship that exists is between the staffing agency and the contingent workers.” [Translated from ¶1]
Some prestigious law firms’ business Chinese translation departments, as evidenced by blog posts published by famous firm King & Wood Mallesons, have insisted on calling “staffing” by the term “dispatch,” but this is misleading to clients and courts alike. How can we tell that there is no dispatch? Chinese law requires a physical facility adequate for the accomplishment of licensed tasks for each industry. For example, snack food makers are required to have a clean packaging facility. PRC law, however, states no requirement for staffing agencies to have dispatch offices, unlike ambulatory dispatch services. According to an analysis of the statute by attorneys Wu Kun and Jin Jing:
“Incorporation requirements for staffing agencies in China are stricter than those for outsourcing companies: (1) Staffing agencies must have a minimum registered capital of 2 million Yuan; (2) Staffing agencies must obtain an administrative license before they commence business.
[…] In addition to the agreement signed between the staffing agency and client, both the client and the staffing agency are subject to the Labor Contract Law and Provisional Regulations on Temporary Staffing.” [Translated from ¶2]
The common law of English-speaking companies does have law on labor dispatch and there have been numerous cases under the FLSA where the word “dispatch” is uniformly construed as meaning workers dispatched from either a centralized location such as a “dispatch office,” Adkins v. Labor Ready, Inc., 303 F. 3d 496, (4th Cir. 2002). In earlier Supreme Court precedent, the FLSA precedent was based on labor halls, Sears, Roebuck & Co. v. Carpenters, 436 US 180 (Supreme Court 1978). While early staffing companies in 1980s China did have centralized locations for workers to gather, the dispatch meaning as we will see below was never essential to nor part of the Chinese legal term’s meaning, and, as dispatch offices fell out of use, translators keep using terminology that in labor law implies the use of dispatch offices. Actual dispatch is rarely used these days anywhere because dispatch workers can manage their assignments via cell phone apps and therefore need not wait at a centralized location.
Some Chinese translators I had fact-check this article were a bit confused about the “staffing agency” terminology as used in English. Some confusion arises because the word “staffing agency” can also refer to full-time placements in some contexts. In practice, most English-speaking businesses will refer to someone who finds permanent hires as a “recruiter” or “headhunter,” but staffing agencies are traditionally quite happy to help companies find permanent placements, and many firms now call themselves “staffing and recruiting” firms, which is indeed the case in China too.
Thus, translators should rigorously avoid calling these companies “dispatch” companies, as the Chinese word in its legal sense does not mean what dispatch means in English. That law firm’s translators were translating an underlying metaphor, not what the word actually means, would be of grave concern for English-speaking stakeholders who may thereby be misled. Any labor-specialized attorney encountering these facts would identify the entity as a temporary staffing agency in English law and not a dispatch company. However, legal translators deficient in critical thinking skills often mislead clients into thinking “dispatches” are somehow involved. Translators should look to the rich native English vocabulary for this kind of work—staffing, contingent, and temporary work are widely used; “dispatch” is a mistake.
History of the translation mistake
Why the strange Chinese legal translation? Historical records show that the Chinese word for “staffing” is actually a loanword from Japanese. Chinese business history commentators point out that Japanese businesses adopted the staffing company model from the United States in the 1920s when it was known as “rented labor.” However, a direct translation of the English into Japanese made no sense to Japanese readers since the word for “rent” means something different in the Japanese equivalent, and Japan instead used the metaphor haken — which was ultimately copied to Chinese characters, where it is pronounced paiqian.
According to a comparative law study by Professor Guo Yiling, historical records indicate that American-style staffing agencies were introduced to Japan during the 1920s, using the Japanese word haken as its translation, but it wasn’t until the 1970s that translations of “labor dispatch” can be found, which is when business guides for Japan were translated to and printed in English. Japanese translators at the time probably could not readily locate the history of labor staffing and defaulted to the army’s translation for the same word into “dispatch.” Like bad machine translation software today, translators a century ago had a hard time recognizing that the same word can mean different things in varying contexts.
This result is actually quite typical in the translation of many Asian languages to English. These projects tend to be so under-budgeted and poorly supervised that translators have to go at such high speeds that they generally do not really understand what’s being said in their second language. The Japanese concept and its military translation were subsequently transplanted into Chinese as a loanword from Japanese, and the corresponding translation into English was also blindly copied and documented in The Dictionary of Chinese Loan Words and Hybrid Words’ entry:
“Dispatch, paiqian, to order someone to do something somewhere. [Source] Japan dispatch, haken”
China has an interesting history that explains how local translators became confused about the meaning of “dispatch” when the country adopted temporary staffing models from Japan. With the start of the Chinese gaige kaifang economic reform in the 1980s, China’s emerging market began to attract a significant amount of foreign investment. Initially, foreign companies were heavily restricted from operating in China and could not even lease workplaces or hire workers. Attorney Jiang Junlu provides this very interesting account of how temporary staffing got started in China, and initially, it did indeed look something like “dispatching” workers:
“The State Council’s Provisional Regulations for the Administration of Foreign Representative Offices took effect in 1980, allowing for the existence of representative offices but restricting their growth. In addition to restricting business operations, the Chinese government also heavily restricted foreign representative offices in fields like office rental and employment. In terms of employment, foreign representative offices were required to hire employees through government-operated foreign business services pursuant to the Regulations on Foreign Representative Offices. Consequently, the government set up a number of foreign business services. These agencies would hire contingent workers and send them to representative offices, thus marking the beginning of temporary staffing in China.” [Translated from ¶3]
If we were to take a time machine back to 1980 as an American businessman trying to open a factory in China, local business service agents would most likely inform the businessman that he cannot open a factory or hire his own employees, but the government can “dispatch” laborers to the factory. The American businessman would agree and quite happily carry on his business for many years. No objection to the meaning of the Chinese translation would have been raised at the time since state enterprise workers would have been sent from governmental work units where there was overcapacity. Despite not meaning the same thing as the Chinese word, “dispatch” probably made sense to English speakers in that historical context. The relationship would proceed normally and without significant difficulty at this point, and the Chinese business agent and the translators would feel that they have been adequately understood as a result. Thus began the tradition of translating the Chinese concept of staffing agency services to say “dispatch,” and nobody ever noticed at the time.
40 years have passed since the start of China’s opening up and there are no longer any “dispatch” elements in business operations. Staffing agencies sign separate contracts with both their client (employer) and employee (contingent worker). The agreement between the staffing agency and client is that the client provides the position, location, employment term, wages, and working hours, which is then relayed to the contingent worker. As such, there is no bona fide “dispatch” element to a staffing agency. Such workers generally travel directly from their homes to the employment location and might even be working online. Nor is there any hint of a “dispatch” element in the contract templates provided by government agencies or the official requirements for staffing employees.
Differences between Chinese and US temporary employment models
When confronted with evidence that a translation is in error, Chinese-English translation companies often like to dig in their heels and fight long and hard to prove that their previous incorrect translations were all correct. First, they generally resort to arguments such as the misleading Chinese translation is politically correct or a tradition, and I have seen this defense unsuccessfully raised in serious fraud cases. A second fallback to justify using a made-up or incoherent phrase is to say that there is some difference between the English common law practice and the Chinese practice, which gives rise to the phrase “Chinese characteristics” (i.e. distinctively Chinese), and therefore a misleading word-for-word translation is needed. The singular justification for saying that English staffing agency assignments are inherently different from the Chinese practice that must be called “dispatch labor” on the basis of excessive differences is that Chinese regulations require contingent workers to receive equal pay for equal work as permanent employees.
This, however, is a sham argument for the uniqueness of the Chinese practice because, in reality, equal pay for equal work is hard to apply and therefore seldom enforced. According to provincial Supreme Court Judge Wang Huiling:
“Equal pay for equal work is hard to apply. Outsourced workers tend to be employed short-term. Many migrant workers resign prematurely, thus giving up their rights to compensation and long-term employment contracts, which indicates how contracted clients’ double standards affect the temporary staffing market. Outsourced workers often do not enjoy the same treatment as a client’s long-term employees, such as insurance, performance bonuses, and regular salary adjustments. There are significant differences in the way both types of employees are treated. The main reason courts deny their claims for equal pay for equal work is the lack of proof. The main difference between equal pay for equal work and other labor disputes is that contingent workers are typically unable to prove their cases due to significant information asymmetry.“ [Translated from ¶2]
The Shanghai Courts even issued a whitepaper explaining the difficulty of applying this law:
“Contingent workers doing the same type of work as long-term employees are required to prove the position and salary for the long-term employees in the proceedings. However, the main difference between equal pay for equal work disputes and other labor disputes is that contingent workers are typically unable to prove their cases due to significant information asymmetry. Thus, their claims are often rejected by the court due to lack of proof.” [Translated from ¶8]
Lawyers concur that in reality the equality principle rarely applies. Lawyer Zhao Yingguang analyzed numerous cases and found all lost, for a good reason:
“The above cases indicate that the Labor Dispute Arbitration Commissions and the People’s Court tend to be cautious in equal pay for equal work cases. Despite different cases being resolved based on divergent fact patterns, the main issues remain the determination of the equal pay for equal work standard, the interpretation of the employment contract, the determination of the relationship between the salary provided in the temporary staffing agreement and the principle of equal pay for equal work, and how to allocate the burden of proof.” [Translated from ¶7]
Potential risks to clients
How could using the incoherent Chinese translation be problematic for clients? For one, it could amount to illegal misrepresentation if a China-based company goes to do business abroad. For example, I can see a recent SEC filing for Hebron Technology uses the phrase “dispatch labor” in a situation where it looks potentially misleading since it apparently contemplates remote workers, which require no capital investments to employ. The relevant document is probably fraudulent as a fictional contract for other reasons, however, as it makes mention of “state and federal courts sitting in the city of Wenzhou, China” (Wenzhou has no state or federal courts). The lesson here seems to be that attorneys who use bad translators in filings are probably aiding and abetting other sorts of fraud. For example, Luckin Coffee’s SEC filings refer to a fictional catering business, also a careless translation mistake, but Luckin is accused of reporting it had numerous fictional buyers and employees (see WSJ).
Second, Chinese companies that use incorrect translations could get erroneously charged with human rights violations. In the Adkins holding discussed above, dispatch employees compensated like staffing agency employees are entitled to file claims under the FLSA for dispatch time. Why would US law apply to these Chinese companies? In United States v. Zhong, a “Former Chinese Diplomat” was sentenced to fifteen years imprisonment for “alleged labor law violations on PRC Government Facilities.” Numerous Chinese companies have been banned from US imports based on alleged labor law violations. Prosecutors apparently included the defendant’s Adkins-ambiguous “dispatch time” in the calculation of hours worked per day, and the DOJ’s statements say excessive work hours were a basis for human rights violation penalties. Newspapers report that the defendant is currently in federal prison and it looks to me like much of the case was distorted in translation, which could explain Zhong’s long jail sentence.
When under PRC jurisdiction, the use of “dispatch” in translations can cause grossly misleading statements about China operations that could cause severe mistakes, in addition to the erroneous human rights charges described above. In the law, hiring workers in a dispatch arrangement is usually a defense to vicarious liability because the dispatch center has control over the manner of the work, whereas staffing agency employees impart vicarious liability under the “joint employment” doctrine. The same liability rules also apply in China, as discussed by attorney Han Quanqi:
“Who is liable for third party damages caused by contingent workers? The general rule is that the employer assumes tort liability and would be liable to indemnify the third party against any damages caused by contingent employees while performing their duties. However, there are three parties in temporary staffing and the employee does not actually work for the staffing agency. Therefore, how could the staffing agency and client be responsible if contingent workers cause damages while performing their duties during the staffing term? Under such circumstances, primary liability would fall on the client, and the staffing agency would assume secondary liability if found at fault pursuant to Section 34.2 of the Tort Law.” [Translated from ¶4]
This legal issue comes up with surprising regularity in Chinese business communications, and the use of the “dispatch” translation can cause English-speaking managers to make serious mistakes. In my past experience, I have seen American companies’ production facilities suffer damages because contingent workers hired by an equipment provider were negligent, and quite fantastically the other companies disclaimed liability because these were workers “dispatched” from another company, and the third company should be liable. This amounts to falsely denying the joint employment relationship. While quite anecdotal, it seems that some unscrupulous companies have realized how confusing the translation is and are using it to commit fraud on foreign companies.
Conclusion
Chinese translation services should stop causing confusion with the “dispatch labor” mistranslation. This kind of blind copying in practice is misleading to both the legal system and legal clients, and will eventually lead to a damaging cross-cultural conflict. Even if there is a tradition and history of making this mistake, that is still not a viable defense for misrepresentation, nor is it a good excuse for a translator to mislead their client into making bad decisions.
