An increasing number of employers are resorting to part-time
employment in practice. Compared to full-time employment, the
former bears more flexibility for both the employer and employee.
For the employer, part-time employment features low cost and more
freedom in contract termination; for the employee, it means shorter
hours and multiple jobs.
According to Articles 68 to 72 of the Employment Contract Law,
part-time employment possesses the following features:
- Various payroll calculation systems: hourly wage is most practiced, other systems include daily, weekly and monthly salaries;
- Flexible hours: the employer works no longer than 4 hours daily and 24 hours weekly;
- Short cycle of payment: the longest cycle of payments no longer than 15 days with daily, weekly and biweekly payment in use.
Actual practice of the above characteristics may vary depending
on the employment unit. For instance, due to the restriction of an
employer's internal financial procedure, it might not be able
to maintain a biweekly payroll system but instead opts for month
payments. In cases where a dispute occurs, due to the fact that an
employer might not have conformed to every requirement of part-time
employment as provided by the law, the employer could be deemed as
having established a full-time employment relationship with the
employee, leading to rulings that require the employer to reissue
severance, overtime and bonuses to the employee.
Based on the above statement, this article aims to identity the
legal bottom line in part-time employment and risks that might
follow failures to comply.
1. Working hours: a crucial factor that has the power to negate the effectiveness of part-time employment
Through research, various cases show that arbitrators and judges
are strict about working hours. It is highly likely that full-time
employment relations are determined by overtime.
For example, in the case1 where the employee is an
hourly worker who mainly prepared lunch from 8:30am to 1pm on
business days, although work time only exceeds the statutory limit
by half an hour every day, and the accumulated working time was no
longer than 24 hours, the case was still ruled on full-time
employment relations because according to the court, 4.5 hours of
work time exceeds the legal limit of part-time employment.
Therefore, statutory requirements are to be stringently followed in
a part-time employment contract. Moreover, the employer is
recommended to keep official records of work hours such as
attendance sheets and punch edits to prevent possible repercussions
in case of disputes.
2. Cycle of payment: a slightly less crucial factor that might negate the effectiveness of part-time employment combined with other factors.
In practice, quite a number of employers, due to the restriction
of their internal financial capabilities, opt for monthly payments
to part-time employees, which poses a threat to determination of
part-time employment depending on the actual circumstances.
In the case2 where a company claimed that the employee
was not employed on a full-time basis and worked for no more than
12 hours every month, the court still dismissed the claim of
part-time employment on account of the payment system with the
ruling also taking into consideration the fact that the company had
agreed to pay the employee severance and contribute social
insurances in emails.
In another case3, the employee concluded a part-time
employment contract with the company and was paid on the 25th of
every month. The court held that "the cycle of payment exceeds
the legal bottom line, which is 15 days, and that the company
failed to provide any attendance record to prove otherwise, hence
negating part-time relations in the final ruling.
Conclusion: all things considered, both factors are with the
"veto" power to a degree. It is recommended that the
employer strictly follows relevant legal requirements to minimize
risks in case of disputes.
3. Payroll calculation: Flexible under certain circumstances, hourly wage is most practices with monthly wage also in use; subject to change upon agreement, but relevant laws need to be strictly obeyed
In a case4 where an employee and a company agreed in the part-time employment contract that the position is supervision and basic monthly salary is RMB 1,600 which is paid every 10 days and accompanied by a bonus at the end of every month. The court held that hourly salary is not the only standard in affirming part-time employment and eventually ruled based on part-time employment relations.
4. Legal consequences of failure to comply
The court tends to rule in favor of the plaintiff in disputes where full-time employment is established. Below is a list of the legal consequences often seen in practice:
- Doubled payment of salary difference without a previously signed employment contract
- Difference of salary from the local minimum salary
- Compensation for unused annual leaves
- Overtime pay
- Severance for termination of the employment relationship or double severance for an illegal termination
In conclusion, of the three factors in ascertaining part-time employment relations, working hours and the cycle of payment must be strictly complied with, otherwise legal risks might follow.. There is flexibility in the payroll calculation system as long as relevant legal requirements are met with.
(This article was originally written in Chinese, and the English version is a translation.)
Editor's note: This article was simultaneously published on Chinalawinght.com
Footnotes
1. Zhang Baozhen V. China Silk Company, First Instance, (2015) Xi Min Chu Zi No. 08488
2. Wang Xia V. Beijing De Yuan Bo Rui, First Instance, (2015), Hai Min Chu Zi No. 05610.
3. Wei Xianzhu V. Hua Run Shuang He Medical, Appeal, (2015), San Zhong Min Zhong Zi No. 05368.
4. Beijing Shi Chuang V. Li Yanyan, Appeal, (2015), Er Zhong Min Zhong Zi No. 03357.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.