China, Labor / Employment

China Employment Law: It's Complicated And It's Localized

Let's focus on something that should be pretty simple, but isn't at all: the hourly workweek.

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I have previously avoided writing on China employment law because it is so complicated and so localized. My fear has been that any single blog post can only scratch the surface.

But my firm’s China employment lawyer, Grace Yang, has convinced me that I need to write something on China employment law, if only to highlight how complicated and localized it really is.

So with that in mind, I have chosen to focus on something that should be pretty simple: the hourly workweek.

China’s labor law provides for a 44-hour workweek, but its regulations provide for a 40-hour workweek. Most municipalities enforce a 40-hour workweek, but have instituted a “flexible working hours system” for “senior management” as an exception to their basic hour rule.

Before an employer in China can implement a flexible working hours system for its employees, most cities require that it first secure permission to do so from the relevant authorities. The rules on what is required for a flexible hours system tend to vary from city to city.

For example, Beijing permits employers to use a flexible working hours system for senior management without having to obtain permission first. This system is consistent with a U.S.-style “salaried employee” approach in that as far as these employees are concerned, the employer is not required to follow the 40-hour workweek rule.

The Beijing Human Resources and Social Security Bureau interprets “senior management” to mean all employees designated as such in the employer’s Articles of Association. At the very minimum, a company’s legal representative and general manager are certain to qualify as senior management. For other management employees, employers should review their Articles of Association to confirm whether someone is indeed “senior management” and therefore can work more than 40 hours a week without permission from the Beijing authorities.

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But like I said, other cities may have different rules. For instance, Shanghai requires permission from the authorities before you can apply a flexible working hours system to any employee. Shanghai also requires employers provide all of their employees with at least one day off a week.

Further complicating things is that each district within a particular city may have different requirements. This means you need to contact the appropriate authorities within your particular district to determine the specific local employment rules that apply.

Dan Harris is a founding member of Harris Moure, an international law firm with lawyers in Seattle, Chicago, Beijing, and Qingdao. He is also a co-editor of the China Law Blog. You can reach him by email at firm@harrismoure.com.

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