Q&A | Employer’s Liability for Insufficient Work
2024. 4. 3
Q&A | Employer’s Liability for Insufficient Work
As a corporate law firm, we are used to answering many questions from our clients about their business in China. In this series of Q&A articles, we will discuss some of the topics that our clients have shown interest in.
Question: Does a scarcity of work assignments equate to a failure in providing adequate working conditions?
Answer: In certain scenarios, it could indeed be construed as such. Employees possess both the right and obligation to work. It is incumbent upon employers to furnish the necessary working conditions, safeguard the rights of their employees, and facilitate the successful completion of tasks as stipulated in the labor contract. Under normal circumstances, if an employer is unable to assign work due to objective reasons, but continues to remunerate the employee as usual, it does not constitute a violation of the law. However, in some exceptional cases, if an employer fails to assign work or assigns insufficient work, it may lead to an inability to continue the execution of the labor contract.
In practice, many employees' remuneration is calculated based on the volume of work they perform. If an employer assigns insufficient work, particularly if the workload is inequitable, it will inevitably result in a reduction in the employee's income. Employees may argue that the employer has failed to provide adequate working conditions, infringed upon their rights to work, or claim that the employer has indirectly reduced their salary by not assigning work, thereby demanding payment of economic compensation. Reference cases include: (2021) Beijing 0108 Civil First 22350, (2022) Guangdong 01 Civil Final 25785.
However, it is important to note that the aforementioned scarcity of work assignments pertains to standard working hours. In practice, some employees claim that the employer has failed to provide working conditions because they have too little overtime, which results in a very low overtime pay. This phenomenon is more prevalent in some production-oriented enterprises. In this regard, we believe that, from the perspective of the "Labor Law", the essence is to restrict rather than encourage overtime. Therefore, employers assigning less or not assigning overtime does not constitute a "failure to provide adequate working conditions".
