Question 48: During an employment relationship under LCs, do Employers have the right to request Employees to stay home (i.e. garden leave) and only go to the workplace at the Employers’ request, but Employees are still entitled to receive full salaries and benefits according to LCs and the CLA (if any)?

Pursuant to Article 98 of the Labor Code, in some circumstances, Employers may request Employees to stop their work and pay them out-of-work salaries. The Labor Code and relevant guiding documents do not prescribe the maximum out-of-work time. However, when requesting Employees to stop their work pursuant to the above provision, Employers must be able to prove the element of fault on the Employee’s side (e.g. lose the laptop which needs time to be replaced, damage the production line etc.) or on the Employer’s side (business losses, the enterprise’s server cannot be accessed etc.) or other objective reasons (incidents of power, water, natural disasters, fire etc.) which force Employees to stop their work. Therefore, if Employers cannot justify the above reasons for stopping work, they cannot apply the provision in Article 98 to request Employees to stay home. Considering the nature of an employment relationship which is a social relationship arising from the employment of labourers, payment of salaries[1], the arrangement of work assignments by Employers and the performance of assignments by Employees constitute the basic elements forming the employment relationship. Therefore, in principle, Employers cannot request Employees to stop working during the term of an LC if there is not any event that forces Employees to stop their work according to Article 98. Employees may object to the Employers’ request. It is because besides the salaries and benefits paid by Employers, Employees also get the working experience, develop relationships with their colleagues and the community via the employment relationship with Employers. Thus, receiving full salaries but staying home cannot bring all those values and benefits to the Employees.

[1]Article 3.6 Labor Code