Whether an Employer shall pay for the employee’s suspension period?

In January 2018, Guo caused losses to the company due to work errors, and Guo was suspended from his work without wages. Later, the company unilaterally terminated the labor contract, and Guo claimed for the wages of the suspension period. In the end, the court held that the labor relationship was valid during the suspension period, so the company should pay the relevant wages. (See (2020) Ji 01 Min Zhong No. 1642).

Such cases are not rare. In the event of an employee’s misconduct or work errors, in order to conduct the investigation without any obstacle, and prevent the employee from destroying evidence, many companies would require employees to be suspended from work for a period of time. Regarding company’s order on suspension, if the internal rules and regulations have clearly stipulated such suspension measures, which would be deemed as the company is performing its management functions, instead of illegally deriving employee’s right to work.

In practice, the commonest dispute on suspension is the treatment.

The current laws, regulations and judicial interpretations have not said a word on this. However, the “Notice on Wage Treatment Opinions for Staff of Administrative Organs and Public Institutions during Suspension Review Period” (Ren Fa [1999] No. 134, still valid) stipulates that after the suspension review is completed, if the relevant personnel are not implemented for administrative punishment or administrative disciplinary punishment, the wages of the suspension review period shall be paid. At the local level, Zhejiang province has released the “Notice on Wage Treatment Opinions for Staff of Administrative Organs and Public Institutions During Suspension Review Period” (Zhe Ren Xin [2001] No. 217), which stipulates that an living expenses shall be paid according to the prescribed standards during the suspension period, such as the public institutions shall pay the living expenses amount to the fixed part of the wages.

The judicial practice also reflects the tendency to support the above regulations.

In judicial practice, normally the court would not support the employer, if it refuses to pay the wages for suspension period. The main reason is that during the employment, the employee fails to work due to the objective reason, not the employee’s own reason. Such as (2020) Ji 01 Min Zhong No. 1642, (2017) Su 01 Min Zhong No. 8588, and etc..

If the employer only paid partial of the wages, the consequence would be decided case by case. If both parties have made an agreement on this, many courts would support this agreement. The reason is that the tasks, intensity of the work during the suspension period are different from the normal performance, if there is an agreement or any legal provisions, the employer could just pay partial of the wages, or pay the wages amount to the local minimum wage standard (See (2019) Su Min Shen No. 1845). However, after investigation, if the employee is found without any fault, then the employer shall make up all unpaid wages, such as (2018) Su 01 Min Zhong No.6334.