Answer: Whether the employer is in breach of employment law depends on the level of the employees¡¯ normal wages. If the employee’s normal wages far exceeds the local minimum wage, it is probably illegal for the employer to do so.
The system of irregular or general work hours is essentially to adjust the standard workhour system to a certain extent due to industrial characteristics or seasonal changes. Employees work in central work period and rest in central furlough period, but their average weekly or monthly work hours in the accounting cycle are still the same or close to the standard work hours. Therefore, during the period of central furlough, in principle, the employer should pay wages according to the employees¡¯ normal wages, and during the period of central work the employer should pay the employees roughly the same level of wages.
In exceptional cases, employees on the general work hours may work for hours that exceed the standard work hours within the accounting circle, indicating the presence of overtime during the circle. Therefore, the wages for these employees during the central work period may be higher than the aforementioned balanced wage level as they include overtime pay. Employees on irregular work hours may not be entitled to overtime pay, thus the aforementioned imbalance of pay may not occur. For overtime pay calculation for irregular and general workhour system, please refer to How do I calculate overtime pay under the special workhour systems (such as irregular work hours)?
That is to say, under both the systems of irregular work hours and normal work hours, the work hours of employees are not balanced, but the payment of wages is largely balanced. 1Labor dispute appeal case between Shanghai Tuoxin Special Painting Co., Ltd. and Deng Qiuzhen, Fujian Fuzhou Intermediate People’s Court Civil Judgment (2017) Min 01 Min Zhong 7077. The court found that the average monthly wage of the employee on irregular hours was RMB 4,000, that it is illegal for the employer to unilaterally change the wage treatment of the employee by paying only the basic wage to the employee during the rotational furlough period.Therefore, if the employer pays your wages during the central furlough period at a rate much lower than your normal wages, it is likely to be illegal.
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Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
Email: wangdong@royalaw.com
- 1Labor dispute appeal case between Shanghai Tuoxin Special Painting Co., Ltd. and Deng Qiuzhen, Fujian Fuzhou Intermediate People’s Court Civil Judgment (2017) Min 01 Min Zhong 7077. The court found that the average monthly wage of the employee on irregular hours was RMB 4,000, that it is illegal for the employer to unilaterally change the wage treatment of the employee by paying only the basic wage to the employee during the rotational furlough period.