Is it legal to dock pay for time in quarantine?

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Corgis are all the rage in China. A few year ago it was Huskies, but now big and blue-eyed has given way to sets of stubby legs (and tails, but I will get to that in a bit) that indexically conjure not the Iditarod, but the House of Windsor (ahem … Saxe-Coburg and Gotha).

But wait, isn’t this article supposed to be about pay for workers in China? What is all this with dogs and Britain?

Well, you see, both many hapless foreign workers in quarantine in China and many Corgis have the same injustice perpetrated against them; they are both docked. What is “docked” in this meaning of the word is in no way nautical nor nice, rather it is about removal, wages from workers and tails from dogs.

However, I have good news on both counts here. First, some countries, though unfortunately not all, have banned or restricted cosmetic tail docking (see https://en.wikipedia.org/wiki/Docking_(dog) ). Second, almost two years ago China’s Ministry of Human Resources and Social Security issued guidelines on how to handle labor relations during the pandemic (人社厅发明电[2020]5号, hereafter RSTFMD 2020-5). And section one of RSTFMD 2020-5, in part, reads: “For workers who have or are suspected of having pneumonia from infection by the novel coronavirus, and those who have been in close contact with the virus, during the period of isolation and treatment or medical observation, as well as those who are unable to work normally as a result of government quarantine measures or other emergency measures, employers shall pay their salaries for this period and must not end their labor contracts on the basis of articles 40 and 41 of the Labor Contract Law.”

So, if your wages are docked by your employer because you have been or are in quarantine or isolation related to government mandated epidemic prevention and control measures, you have a legal recourse to be made whole, and that is a lot more than can be said for those Corgis. It is almost always best to resolve labor disputes though negotiation, so having the language in RSTFMD 2020-5 at hand, is useful. But if bark comes to bite, you may have to do much more than quote government notices at your employer. If talking fails, practically speaking, you have three possible options: First, you can make a complaint through labor inspection for the return of the illegally docked wages (RLSS 9, 11; LDMA 9). Second, you can file directly at court for a payment order (LCL 30; CPL 214, 215, 216, 217). Third, you can file a labor arbitration case (LDMA 2.5, 5).

The problem with option one is that labor inspection often refuses to take any action when they deem the requests in the complaint to be matters of controversy. (The issue with this line of reasoning should be obvious - aren’t, at least at some level, all matters about which labor inspection complaints are made matters of controversy? If there weren’t some disagreement who would file a complaint? But anyway …) When this happens labor inspection will often suggest you file a case with labor arbitration as arbitration is charged with deciding matters of controversy Thus it can be preferable to skip inspection and simply file with arbitration from the start. Filing with the court for a payment order is also a viable option if the wage arrears are the only issue in dispute. Finally, a failure to pay wages in full and on time by your employer would also give you a justification for an immediate resignation and a claim to severance (economic compensation) which is roughly one month’s pay for each year you have worked for the employer in question (LCL 38.2, 46, 47). If you chose this option you will almost certainly need to file a labor arbitration case.

Also note, using any of the administrative or judicial remedies discussed above is likely to substantially sour the relationship with your employer, so make sure you have considered that before moving forward, and that you have a comprehensive plan. If you manage to get your docked pay back and are made whole, remember those, human and canine alike, who were not so lucky. To help out those human friends send them this article, and to help out the canine ones you can visit the Little Adoption Shop (https://littleadoptionshop.com/).

References

(1) RSTFMD 2020-5 Notice on Improving the Handling of Issues in Labor Relationships During the Period for Protection and Control of Pneumonia from the Novel Coronavirus Infection

https://www.chinalawtranslate.com/en/notice-on-improving-the-handling-of-issues-in-labor-relationships-during-the-period-for-protection-and-control-of-pneumonia-from-the-novel-coronavirus-infection/ 

人力资源社会保障部办公厅关于妥善处理新型冠状病毒感染的肺炎疫情防控期间劳动关系问题的通知

人社厅发明电[2020]5号

http://www.gov.cn/zhengce/zhengceku/2020-01/27/content_5472508.htm 

(2) RLSS Regulations on Labor Security Supervision

劳动保障监察条例

http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/xzfg/201604/t20160412_237898.html 

(3) LDMA Law of the People’s Republic of China on Labor-Dispute Mediation and Arbitration

http://english.www.gov.cn/archive/laws_regulations/2014/08/23/content_281474983042487.htm 

中华人民共和国劳动争议调解仲裁法

http://www.gov.cn/flfg/2007-12/29/content_847310.htm

(4) LCL Labor Contract Law of the People’s Republic of China

http://english.www.gov.cn/archive/laws_regulations/2014/08/23/content_281474983042501.htm 

中华人民共和国劳动合同法

http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/fl/201605/t20160509_239643.html 

(5) CPL Civil Procedure Law of the People's Republic of China

http://cicc.court.gov.cn/html/1/219/199/200/644.html 

中华人民共和国民事诉讼法

http://www.npc.gov.cn/zgrdw/npc/xinwen/2017-06/29/content_2024892.htm

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