Law Says Full Salary Despite Schools Closed Down
With the recent COVID outbreak in Shenzhen, Beijing, Wuhan, Chengdu, Wuxi etc, schools have been ordered by the government to close down until further notice is given.
I have received numerous inquiries from expats in these cities, mainly English teachers as they have also been ordered to stay at home. They have been told by their employers that due to government shutdowns, they shall not be working, and hence, they shall be paid a "holiday salary" which is pennies on the dollar, or, not be paid AT ALL because they are not working.
No pay = no work. Sounds logical, right? WRONG.
Let me classify these questions into three main categories.
Situation 1: (Work From Home) You are ordered to teach online classes to kids and work from home according to your normal teaching schedule.
Edgar's analysis: Working at home is classified as working. You are to be paid your full salary, and not one Yuan may be deducted.
Situation 2: (No Work) You are ordered to go home and do nothing until school restarts.
Edgar's analysis: You must be paid your full salary for one pay cycle. What is one pay cycle? Pay cycles are usually based on a calender month, e.g. 1st Feb to 1st March. Within this period, you must still be paid your FULL wages. Note that this has nothing to do with PAY DATE. The wages you receive on the 15th of February are wages for January.
After this pay cycle, which is starting 1st of March, if you still do not get any work at all, you get paid "living expenses", which are 70-80% of the minimum wage of your city. For example, if the minimum wage is 2480, 80% of that is 1984 RMB.
Situation 3: (Minimal Work) You are ordered to make a one hour video per week.
Edgar's Analysis：You must also be paid your full salary for one pay cycle. After the pay cycle, you get paid the minimum wage until school restarts.
So what can you do when you do not get your full wages? The answer is extremely simple actually. Article 30 of the Labour Contract Law clearly states that wages must be paid on time, in full. You may terminate your labour contract effective IMMEDIATELY based on Art. 38, as your employer has blatantly breached labour contract law.
DO NOT WRITE A RESIGNATION LETTER.
DO NOT SIGN ANYTHING WITHOUT CONSULTING A LAWYER.
DO NOT AGREE TO ANYTHING ON WECHAT OR EMAIL WITHOUT CONSULTING A LAWYER.
After terminating your contract, your employer is legally obliged to pay you severance pay, missing salary in full, and give you your release letter and cancellation letter.
Severance pay is based on how long you have been working at the company for. The number is rounded up. For example, if you have worked for 1 year and 1 month, you get 1.5 months of your salary as severance pay. If you have worked for 2 years and 7 months, you get 3 years.
If your employer rejects to do any or all of the above, sue the company at the labour arbitration committee. Generally speaking, a lawyer is NOT REQUIRED if you are able to write, read, listen to, and speak Chinese fluently. You will need to write an official claim, collect and notarise and translate evidence if they are in solely English, and support your claims in Chinese against your employer's lawyer if you are a do-it-yourself person.
Please subscribe for more interesting legal facts!
Interim Provisions on Wage Payments
Article 12
Where an employer stops his or her work or production due to factors other than the employees within a period of wage payment, the employer shall pay wages to the workers according to the standards prescribed in the labor contracts. Where an employer stops its work or production for a duration exceeding a period of wage payment, it shall pay the workers remuneration not less than the local standard for minimum wages given the employees have provided normal labor; or otherwise the cases shall be dealt with according to relevant State provisions.
Labour Contract Law
Article 30
The employing unit shall pay their workers remuneration on time and in full in accordance with the labor contract and the regulations of the State.
If an employing unit defaults in payment or underpays the labor remuneration, the worker concerned may, in accordance with law, apply to the local people’s court for an order for payment, and the people’s court shall issue such an order in accordance with law.
Article 38
In the case of any of the following circumstances occurring to an employer, workers may discharge the labor contract:
(2) It fails to pay the full amount of remunerations in a timely manner;
Article 46
In the case of any of the following circumstances, employers shall make an economic compensation to the workers:
(1) Any worker discharges the labor contract according to Article 38 of this Law;
Article 47
The economic compensation shall be paid to workers according to the number of years he has worked for the employer by the rate of one month's salary for each full year he worked. Any period of above six months but less than one year shall be deemed as one year. The economic compensations that are paid to a worker for any period of less than six months shall be one-half of his monthly salary.
If the monthly salary of a worker is three times higher than the average monthly salary of workers as announced last year by the people's government at the municipal level directly under the central government or at the level of districted city where the entity is situated, the rate for the economic compensations paid to him shall be three times the average monthly salary of workers and may not exceed 12 years of work.
Monthly salary as mentioned in this Article means the average monthly salary of the worker for the 12 months before the discharge or termination of the labor contract thereof.
Recommended Labour Law Articles