“996 working hours” adopted by internet companies caused much heated debate lately. It refers to a working hours system that sets working hours from 9 am to 9 pm each day, six days a week. Under the 996 arrangement, an employee could work over ten hours a day and 60 hours a week, far exceeding the statutory standard, eight hours a day and 40 hours a week, under PRC law. We have received constant enquiries from our client’s legal and HR departments these days pertaining to whether it is legal to have employees work “996” if they are put under a flexible working hours system , or flexitime. Some of these questions arise from common misunderstanding of flexitime. We will discuss some of the frequently asked questions related to the flexible working hours system.
1. Can an employer apply flexible working hours system to all employees?
Standard working hours system is the default under PRC labour law. A flexible working hours system may only be applied if the implementation of standard working hours is impractical due to peculiarities and unique nature of its business operations. Positions that qualify for flexible working hours are very limited, which generally include senior management personnel, field staff, long-distance transportation drivers and other employees whose work cannot be measured by standard working hours, or those whose position requires working in a flexible manner.
2. Can employers and employees agree to a flexible working hours system?
Mutual consent is not sufficient. Employers must apply for approval from local Human Resources and Social Security Bureaus (“Labour Bureaus”) before placing employees under flexitime. One exception is that in the municipality of Beijing, an employer may agree with its senior management personnel to use flexitime without any prior government approval.
Local Labour Bureaus would consider various factors, such as job responsibilities, working hours, rest arrangements, and nature of business etc. when considering applications for flexitime arrangement. According to our experience, the discretion of local Labour Bureaus may vary, some more stringent than others, and some laxer. Employers should pay attention to local practice and specific requirements when preparing the relevant application documents.
3. Can employer require their employees to work “996” if they have obtained government approval for flexible working hours?
No. The original intention of establishing the flexitime system is to allow employees whose work cannot be measured by standard working hours systems to arrange work and rest time according to their own schedule. Flexitime cannot be used to make employees work overtime. In fact, under the system, employers waive their rights to some extent to require their employees to work at a designated time and place, and employees generally obtain a discretionary right to arrange their own work and rest time. Accordingly, the management and performance review of employees under flexitime should be based on completion of tasks instead of attendance.
In practice, after putting employees under flexitime with government approval, some employers still require attendance or even take disciplinary action towards employees on grounds of attendance issues, such as coming to work late or leaving early. A general view is that employers cannot require attendance on employees under flexitime, and such disciplinary actions would be very difficult to sustain in front of a competent court.
4. Is “996” legitimate?
It is illegal for employers to force employees to work under a “996” arrangement, regardless of which working hours system is used. Naturally, employees may work long hours during busy seasons under a cumulative working hours system where hours are logged over a defined period; however, total working hours during the relevant period should not exceed that of a standard hours system. Any extra hours logged in the period are deemed overtime hours and as a result, employers are required to pay overtime payments at a rate of 150% of the normal wage. In addition, local requirements differ in terms of public holiday overtime payments under flexitime, employers should take extra caution to avoid disputes.
Being one of the aspects of social law, labour laws set out basic employment requirements and standards, including maximum working hours, minimum wage, labour protection, etc. Employers are subject to legal liabilities in case of violation of any applicable employment standards.
Working hours system management is a series of process that requires advance planning. Generally speaking:
- employers first need to establish a set of legitimate and reasonable rules on working hours management, specifying normal working hours, attendance requirements, appraisal methods, and overtime rules, etc.;
- employers should also consider the types and nature of company positions, and elect to apply for flexible working hours system or cumulative working hours system for the appropriate positions; and
- after obtaining the required governmental approval, employers should continuously monitor local legal requirements and practice while fulfilling managerial obligations, such as monitoring and recording working hours, overtime hours, overtime payment, and preservation of relevant records.