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China’s Forty Hour Work Week Is Mandatory. Except When It’s Not.

Posted in Basics of China Business Law, Legal News

China’s labor law provides for a 44-hour work week, but its regulations provide for a 40 hour work week and most municipalities (it seems) enforce the 40-hour work week, but recognize that this workweek may not be practical for certain employees. A “flexible” working hours system is thus permitted for “senior management” as an exception to this basic hour rule.

But before an employer can implement a flexible working hours system for its employees, it must usually first secure permission to do so from the relevant authorities. But it seems that every Chinese city has its own rules on what it requires and on what it will allow.

For example, Beijing permits an employer to use a flexible working hours system for its senior management personnel 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.

One of the first issues that must be resolved to have a flexible working hours system is what is meant by the term “senior management.” The Beijing Human Resources and Social Security Bureau interprets that 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. With respect to other management employees, it is important that the employer review its Articles carefully to be sure that they are indeed “senior management” and thus do not require permission from the Beijing authorities.

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 type of employees. Moreover, even though a salaried employee approach is permissible in Shanghai, Shanghai requires an employer to provide them at least one day a week that is not a work day.

Making things even more complicated is that each district within a particular city may have different requirements. This is why when one of our clients seeks the advice of one of our China employment lawyers, we always contact the particular district where the client is registered so we can figure out the specific local rules our client must follow.

To be clear, for management personnel who do not qualify as “senior management” under the Articles, it is still sometimes possible to secure approval for a flexible working hours system for such employees and I will write more on this in a future post.

Editor’s Note: Grace Yang is a lawyer with Harris Moure who splits her time between Beijing and Seattle. Grace received her B.A. from Peking University and her J.D. from the University of Washington. Grace is licensed to practice law in Washington and New York, and will be sitting for the China bar exam this fall. Grace has extensive experience with Chinese employment law, and previously wrote on such issues in Paying Your Non-Chinese Employees In Your China WFOE: Splitting The Salary, Part 1 and Paying Your Non-Chinese Employees In Your China WFOE: Splitting The Salary Part 2.

  • Ward Chartier

    By maintaining good relations with the local Labor Bureau office, when we had questions, the HR manager would pay a visit, then apply the guidance she received when she returned to my factory. On the rare occasions we had an audit, we were always fully compliant. Employees never complained to the Labor Bureau, either. We never ran afoul of the law, and had no need to engage an attorney to answer our questions.

  • Ronald Brown

    You are right of course Grace.You may remember the McDonald’s case in Japan a few years ago where a “manager” was found to be an “employee” and not exempt from overtime requirements.
    China has a similar, somewhat obscure regulation, enhance by local regs, exempting “senior management” officials from OT. Whether and how that is enforced is another discussion. Lawyers in China were excited by the McDonald’s case, but I don’t think employers in China ever noticed.

  • Guest

    I agree