Answer: The so-called standby work is a state of being on call at home, waiting for work arrangements. Compared to employees working night shifts at the employer’s workplace, this is a more flexible work arrangement. Whether wages should be paid for standby work first depends on whether there is an employment relationship between the two parties. If this relationship is essentially a contractor relationship, the company is not obligated, unless otherwise stipulated in their contract, to pay the worker wages for the standby period based on the principle of employee protection under employment law.
If both parties do indeed constitute an employment relationship, the key question then is to determine whether this standby constitutes work under employment law. Chinese employment law does not explicitly specify answer this question. The criteria for determining whether being on standby at home qualifies as work or overtime, based on current court decisions, are generally consistent with whether being on duty constitutes work or overtime. It should involve a comprehensive consideration of factors such as the requirements for being standby, the freedom of movement, and whether the worker is allowed to sleep, etc. Please refer to I sometimes need to be on night duty. The employer only pays a trivial night allowance. Is this legal?
There are many cases ruling that standby at home does not constitute work,[Li Gang and China National Heavy Duty Truck Group Co., Ltd. Civil Ruling on Civil Application for Retrial Review of Labor Dispute Shandong High Court Civil Ruling (2022) Lu Min Shen No.7277. The court held that the bus drivers of the employer could rest most of the time except for commuting, so the overtime wages of employees could not be calculated on the basis of normal work hours. Civil Ruling on the Labor Dispute between the retrial applicant Fushun Jiaxin Commodity Concrete Co., Ltd. and the respondent Yin Ke Liaoning Provincial People¡¯s High Court Civil Ruling (2016) Liao Min Shen No.4522. ¡°The court found the mode of working for 24 hours (work if you have something to do, rest if you have nothing to do) and then rest for 24 hours without additional overtime pay. Civil Ruling on Labor Dispute Appeal and Application for Retrial between Zhe Tao and Yulin Central Branch of Tian’an Property Insurance Co., Ltd. Civil Ruling of Shaanxi Provincial People¡¯s High Court (2020) Shan Min Shen No.2332. The court held that the situation that employees could not turn off their mobile phones after work could not be regarded as overtime.]but there are also a case holding that an employee working through Wechat at home was work. 1 http://m.cyol.com/gb/articles/2023-05/03/content_jpbVlBtwP3.html The article reported that the Third Beijing Intermediate People’s Court ruled that it was overtime for employees to work through Wechat after work.It mainly depends on the nature of this kind of standby. If such standby arrangements impose high constraints on employees (for example, prohibiting alcohol consumption and restricting outings to no more than half an hour), require a rapid response from employees (such as expecting them to arrive at the worksite within one hour of receiving a notification), and entail significant responsibilities, then this standby is likely to be considered as work (and if it occurs outside normal work hours, it may be deemed as overtime). In such cases, the employee during the standby period should be entitled to at least the local minimum wage.
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- 1http://m.cyol.com/gb/articles/2023-05/03/content_jpbVlBtwP3.html The article reported that the Third Beijing Intermediate People’s Court ruled that it was overtime for employees to work through Wechat after work.