On-call work is frequently used in China to provide coverage for tasks that are needed outside standard work hours. Whether overtime pay is required depends on how it is structured, because on-call status is not separately classified under labor law. Therefore, an analysis of the employee’s duties and opportunity for rest is necessary. Additionally, there is a risk on-call duty during days off or holidays will give the worker a right to claim overtime pay, no matter how the work is structured. In some cases, businesses needing on-call coverage should consider whether they should obtain approval to use an alternative work hours plan rather than attempting to structure it within standard work hours. In this article, we will explain what you need to know about China’s law covering on-call workers and provide strategies for structuring policies to minimize both costs and legal exposure.
Contents
- Overtime Legal Limits and Definition of On-Call Status
- Legal Test for Counting as Overtime
- On-Call Status and Employer Assignment Rights
- Employee Right to Refuse
Overtime Legal Limits and Definition of On-Call Status
Work hours are generally categorized as either regular hours or overtime, the latter of which is permitted under certain conditions. China Employment Act § 41 provides that overtime is limited to one hour per day, except in special cases when it may be up to three hours, and to no more than 36 hours per month. Any time exceeding these limits is excessive overtime. The Employment Rights Oversight Regulations § 25 provide that the labor regulatory agency may issue a warning and a cease and desist order and impose a fine of ¥100 to ¥500 per employee.[1]
On-call duties are not classified as a separate work category under Chinese law, but they are widely used. Here, “on-call” may refer to either a fixed job role or a scheduling plan. For example, a justice agency’s field operations command center may have an on-call room and on-call employees who receive daily intelligence, coordinate operations, and relay information. On-call duties may also involve a scheduling plan for certain positions in which employees must remain on-site for certain tasks.
On-call duties are categorized based on degree of similarity to regular duties. For example, security guards, gatekeepers, and caregivers are on-call during regular hours, whereas on-call employees providing emergency response work during statutory holidays are on-call during a period when they would otherwise be off. The appropriate classification is based on the nature of the position.
On-call status is analytically distinct from the classification of time as regular hours or overtime; on-call time can nevertheless fall into either category. On-call duties are atypical, limited to a narrow range of tasks, and not appropriate for all jobs. They are characterized by long on-call periods but low work intensity.
Due to the lack of clear laws governing on-call workers in China, relying on expert advice is necessary to be sure you are not exposed to legal liability.
If you need help with employment issues in China, CBL can help connect you with a qualified attorney.
Legal Test for Counting as Overtime
Judicial precedents have developed special-purpose rules to determine whether on-call time extending beyond the statutory workweek or occurring outside regular hours counts as overtime. Below, we will introduce each of the four rules.
Rule 1
Distinguish on-call work from regular work, and do not count unrelated on-call time as overtime hours. Overtime does not include time spent on on-call status that is unrelated to regular job duties and that an employer assigns for security, fire safety, or holidays.
The applicable rule is found in the Employment Disputes Q&As #1 §56, the 2009 Conference Memorandum (Beijing Employment Dispute Arbitration Commission and Beijing Upper Appeals Court).[2] It provides that overtime compensation claims must be denied for such on-call time. In Jinchengjiang Civil Case 1394 (2013), the court held that a bank’s after-hours security duty did not constitute overtime because the employees on duty were not required to perform teller activities.[3] Likewise, in Lipu Civil Case 421 (2013), a gas station attendant on duty outside of hours of operation was held to be performing only property security guard work, and thus on-call time was not considered overtime.[4]
Rule 2
Determine whether the employee is allowed to rest during on-call periods and whether proper conditions are provided to do so. On-call time is not considered overtime if resting is permitted. Even when job-related on-call work occurs outside the statutory workweek, it is not treated as overtime if the employee is permitted to rest. (See Q&As #1 §56).[2]
In Beichen Case 2670 (2014), the hospital argued the employee’s 24-hour shift was on-call and not overtime, but could not prove the employee was informed of company policy or of the rest time and location. The court did not hold in favor of the on-call classification.[5]
In Beijing Case 03-cv-app-1 (2019), the employee was on overnight duty to monitor a public restroom and was allowed to sleep during on-duty time. The employer did not prohibit resting. The court held the employee was not continuously working during the on-call period and rejected the claim for daily overtime pay.[6]
Test for Counting as Overtime
Rule 3
On-call duty is reviewed based on a totality of the factors to determine whether it counts as overtime, depending on the type of day involved, such as workdays, days off, and statutory holidays. On-call duty on days off and statutory holidays is treated in full as overtime, even if the work is light and the employee is permitted to rest during the on-call period.
Guangdong Cases 549 and 550 (2015) are illustrative.[7] A security guard worked nights at a closed office site. He did not need to keep records or report, and was permitted to rest in an on-call room with a bed, taking action only as necessary. The court denied overtime pay for duty on workdays, but held that the on-call time on days off and holidays was overtime.
Rule 4
On-call duties that are similar to employees’ job duties are prorated and counted as overtime if hours worked exceed the statutory workweek. Because employees are assigned on-call work by their employer and perform some tasks, it is unfair to exclude time from hours worked. However, because on-call time can be long with low work intensity and rest is available, it is unfair to count all of it as overtime; thus courts prorate on-call time as overtime.
In Foshan Nanhai–Dali Case 497 (2013), the court equitably deducted 8 hours of eating, sleeping, and standby time from each 14.5-hour shift, and added 2 separate hours of midday on-call time to calculate 8.5 overtime hours per shift, for a total of 1,020 overtime hours across 120 shifts.[8]
In Jiangsu Civil Case 2643 (2013), the court held that although security guards and doormen perform certain duties during sleep time, they need not remain constantly on duty, and it is unfair to count all such time as hours worked. Therefore, sleep time is counted as half under the contractual terms of the employment contract.
On-Call Status and Employer Assignment Rights
Chinese law does not specifically regulate on-call status, and “on call” is not a legal concept. Judicial precedents have developed rules for determining the nature of on-call status; such duty does not necessarily constitute working hours or overtime and therefore may not entitle employees to additional compensation. The term, however, denotes being on call at a workplace in a particular position; on that understanding, on-call time should be considered hours worked.
In reality, regardless of whether the on-call work is the same as the regular work or whether rest is allowed, on-call status is generally assigned by the employer, restricts the employee to the workplace, and requires the employee either to perform actual work or to remain ready to work, all of which are basic characteristics of work.
There is a lack of uniformity in Chinese case law as to whether on-call time is classified as hours worked, overtime, or neither. In some cases, on-call time is not classified as work hours, which raises two issues: whether employers should be allowed to assign on-call work at will, and whether employees should be allowed to refuse it. In those cases, even if on-call time pushes an employee’s total hours significantly beyond the statutory workweek limit, the on-call time is not considered overtime and is paid at the regular rate. This raises the question of whether employers are permitted to assign on-call work at will.
The judicial precedents outlined above indicate that an employee may not be entitled to overtime pay if on-call status is unrelated to their regular job duties or if the employee is permitted to rest during the on-call period. These cases are advantageous for employers and may encourage employers to assign on-call shifts to employees arbitrarily without providing additional pay, which raises concerns.
This issue stems from the China Employment Act, which requires overtime pay based solely on hours worked, without regard to the nature or outcome of the work. In particular, China Employment Act § 36 provides for an eight-hour workday and a 40-hour workweek, and § 44 provides for overtime compensation at 150% of an employee’s regular wage for overtime hours, at 200% for work on a day off, and at 300% for work on a statutory holiday. Thus, the China Employment Act uses only hours worked as the standard for determining overtime eligibility and compensation.
Treating hours worked as the sole legal basis for overtime is appropriate in most cases. However, for certain job roles, calculating overtime pay solely based on hours worked can lead to unfair results. The legal test to determine whether on-call time counts as overtime takes this into consideration. Courts will not support employers who unreasonably impose on-call duty that infringes on employees’ right to time off and their right to compensation.
Therefore, it would be prudent to be reasonable when scheduling on-call time and treat it as a special category of work time. On-call time should not be categorically excluded from hours worked, but neither should its entire duration be counted automatically. In other words, duration alone is not determinative. Overall, Chinese courts are likely to allow employers to schedule on-call time for roles that have appropriate requirements, but only within reasonable limits.
Employee Right to Refuse
Can employees refuse unpaid on-call work? Once an employer assigns on-call work, the employee must comply with the assignment, including its time and location constraints and any requirement to perform tasks or remain available for potential tasks. Although no specific work activities may occur and employees may just rest at the workplace, they must remain available to perform certain job duties.
Abandonment of on-call duty can have serious consequences. Thus, employer work rules generally require employees to accept the scheduling plan and prohibit them from abandoning the duty during the on-call period, with disciplinary action for violations. Therefore, on-call work is treated much like ordinary work. Requiring employees to accept on-call status without additional compensation and benefits is arguably unfair, and excessive on-call work may violate statutory requirements.
On-call is a common scheduling practice in China, and so an on-call policy for compliance is needed. Compliance begins with the nature of the role. Some roles require 24-hour staffing but don’t qualify for on-call status; in such cases, seek approval for an alternative workweek schedule—such as an irregular workweek or averaged work hours—and structure shifts under that framework.
Second, document on-call scheduling, work rules, and employment benefits in a company policy. On-call compensation is a compliance issue, as there are no statutory rules for on-call pay, on-call premiums, or separate rates for weekdays, days off, or statutory holidays. Instead, it’s typically determined by company policy, a collective bargaining agreement, or custom.
Third, when implementing on-call policies, respect employees’ rights to time off and overtime pay. For on-call status closely tied to the position, define rest breaks and provide appropriate rest conditions. On-call work that exceeds reasonable limits counts as work time for overtime pay purposes. Otherwise, the arrangement is essentially disguised overtime; it undermines harmonious labor relations and risks administrative penalties for excessive overtime. As China regulators crack down on excessive overtime, on-call policies are now receiving significant scrutiny.
In the current regulatory environment, getting expert advice when structuring on-call policies can reduce your exposure to legal liability. If you need help, ask CBL to connect you with a qualified attorney.
FURTHER READING
Get more insights about Chinese employment law:
For a general overview of this topic, see also CBL’s China Employment Law FAQ.
Footnotes
[1] Employment Rights Oversight Regulations, (劳动保障监察条例), (State Council, Nov. 1, 2004), (in Mandarin)
[2] Employment Disputes Q&As #1, (北京市高级人民法院、北京市劳动人事争议仲裁委员会关于审理劳动争议案件解答（一）), (Beijing Upper Appeals Court and Beijing Employment Dispute Arbitration Commission, Apr. 30, 2024), (in Mandarin)
[3] Jinchengjiang Civil Case 1394 (2013), ((2013) 金民初字第1394号), (Jinchengjiang District Court, Dec. 12, 2013), (in Mandarin)
[4] Lipu Civil Case 421 (2013), ((2013)荔民初字第421号), (Lipu County Court, Jan. 18, 2014), (in Mandarin)
[5] Beichen Case 2670 (2014), ((2014)辰民初字第2670号), (Beichen District Court of Tianjin, Dec. 19, 2014), (in Mandarin)
[6] Beijing Case 03-cv-app-1 (2019), ((2019)京03民终1号), (Beijing Third Lower Appeals Court, 2019), (in Mandarin)
[7] Guangdong Cases 549 and 550 (2015), ((2015) 粤高法民申字第549、550号), (Guangdong High Court, May 4, 2015), (in Mandarin)
[8] Foshan Nanhai–Dali Case 497 (2013), ((2013)佛南法沥民一初字第497号), (Nanhai District Court, Dec. 31, 2013), (in Mandarin)
[9] Jiangsu Civil Case 2643 (2013), ((2013)苏中民终字第2643号), (Suzhou Lower Appeals Court, Dec. 9, 2013), (in Mandarin)