Why is it so difficult to take statutory paid annual leave?, Employees can only take 2 days off after 4 years of work and resignation

Recently, Ms. Xiao from Changzhou, Jiangsu Province, reported to reporters that she has worked in a company for 4 years and has never enjoyed paid annual leave. In June of this year, she applied for resignation due to personal reasons and was informed that she could enjoy this year's annual leave before leaving. However, as this year has just passed six months, the annual leave can only be "discounted" for two days. "Why is it so difficult to take statutory annual leave?" Ms. Xiao sighed.

Around the Dragon Boat Festival this year, when the topic of "compensatory leave" became more popular, many people also called for the implementation of annual leave. Many netizens have suggested that instead of artificially creating a "golden week" of centralized leave through compensatory leave, it is better to actively implement paid leave, allowing employees and enterprises to independently arrange paid leave and staggered travel according to family and work needs.

The reporter conducted an investigation and interview on how to implement annual leave.

Ms. Xu, a resident of Yuncheng, Shanxi, is 54 years old this year. Despite working for many years, she has only taken a few annual vacations. She works at a local hospital, and according to regulations, she has 15 days of annual leave, but she dares not take it and has no time to do so. Due to hospital regulations, taking three consecutive days off is considered absenteeism, and not only will the monthly full attendance bonus be lost, but also salary performance will be deducted. And the full attendance bonus accounts for nearly a quarter of her salary composition. Even if she is willing to give up a certain amount of salary benefits, taking a leave of absence from the hospital for more than 5 days is almost not approved.

"Just a few years ago, the personnel system in hospitals was not perfect, and paid annual leave was not at all. In recent years, there have been various' cards', but they can take three or four days off a year, which is no different from regular leave. So in recent years, I basically don't think about taking a vacation." Ms. Xu said in a recent interview with a reporter from the Legal Daily that many of her family and colleagues have also gone through paid leave in this way.

According to relevant laws and regulations, employees of government agencies, organizations, enterprises, public institutions, private non enterprise units, and individual industrial and commercial households with employees who have worked continuously for more than one year shall enjoy paid annual leave. In addition to annual leave, paid leave arrangements such as statutory holidays, marriage leave, maternity leave, and parental leave stipulated in local population and family planning regulations are also determined by law.

However, recent investigations and interviews by reporters have found that situations like Ms. Xu's inability to take paid leave are common. Among the respondents, some have worked for 10 years without enjoying annual leave; Some people can only take their annual leave separately due to company attendance regulations; The female employee's request for parental leave after maternity leave was rejected by the company. Many companies ignore the rule that employees should be paid 300% of their daily salary for the number of annual leave days they should take but have not taken. They do not provide annual leave and have never provided corresponding compensation to employees.

Having worked for many years without taking annual leave, there is no way to discuss economic compensation

In fact, the paid annual leave system was established in the labor law introduced in 1994. The Regulations on Paid Annual Leave for Employees, released in 2008, further refined the relevant provisions. According to regulations, employees who have worked continuously for more than one year are entitled to paid annual leave. Employees who have worked for more than 1 year but less than 10 years shall have an annual leave of 5 days; For those who have been on vacation for more than 10 years but less than 20 years, the annual leave is 10 days; For those who have completed 20 years, the annual leave is 15 days. National statutory holidays and rest days are not included in paid annual leave. Employees enjoy the same salary income during their vacation period as during their normal working period. Units can coordinate and arrange annual leave for employees based on specific production and work conditions, taking into account the wishes of the employees themselves. The annual leave days that employees should take but have not taken should be paid at 300% of their daily salary income.

Although there are explicit regulations, the investigation by reporters found that the implementation situation is not optimistic.

Ms. Xiao from Changzhou, Jiangsu said that "employees do not have annual leave" has become a hidden rule in the company. She was politely reminded by the company's leadership four years ago when she first joined. After she resigned in June this year, according to the so-called "workplace culture," the company voluntarily offered to enjoy paid annual leave before leaving. However, because it has just passed six months this year, she can only take a "discounted" leave of two days. "According to relevant regulations, I should be entitled to 5 days' annual leave. I have also raised this issue with the company, but the outcome has not been changed."

The situation where paid leave is indirectly compressed or even not given at all is not an exception. On social media, a search of "paid leave", "annual leave" and other keywords reveals that many people "roast" about this problem.

A netizen from Shanxi, "One Pot Crab Meat Pot," said, "In order to avoid receiving annual leave subsidies, my company 'forces me to take annual leave', which means giving you a fake note, signing it, taking it away, and continuing to work." Another netizen from Hebei said that there is no mention of annual leave in my company, and I have worked for more than ten years without taking any annual leave, and the corresponding economic compensation is even more "invisible.".

A survey on the basic situation of human resources and social security in some cities conducted by the Ministry of Human Resources and Social Security shows that more than half of the employees have enjoyed paid annual leave, which means that nearly half of the employees have not enjoyed paid annual leave. According to the length of service of employed employees, the average paid annual leave per capita in China is about 10 days. However, in reality, the average paid annual leave per capita is only 6.29 days. Private enterprise employees even have less than 4 days, and over 72% of private enterprise employees have not fully enjoyed annual leave.

Professor Wang Qian from Shanghai University of Political Science and Law introduced that holidays aimed at rest and leisure mainly include paid annual leave and statutory holidays. China's laws and regulations clearly stipulate that there are also many paid holidays, but their purpose and application are different. For example, population and family planning regulations in different regions often stipulate marriage leave, maternity leave, spouse paternity leave, and parental leave.

Ms. Liu, a 28 year old woman from Leshan, Sichuan, gave birth to a daughter last summer. After maternity leave ended, she requested to continue her parental leave from her company at the time, but was rejected. The company manager bluntly stated, "I haven't received any relevant notice, there's no such thing as parental leave.".

"Where do we need to notify every company about the regulations related to parental leave? The company says they haven't received the relevant notice, but in fact, they don't want employees to take leave." Ms. Liu said that this incident led to her resignation. After changing jobs this year, she applied for parental leave and the company approved it directly.

When the reporter inquired about the Population and Family Planning Regulations of Sichuan Province, it was found that they clearly stipulate that "couples with children under three years old shall enjoy a cumulative 10 days of parental leave each year, and parental leave shall be considered as attendance.".

Obstructing employees from taking leave in a disguised way, resulting in frequent disputes and difficulties in safeguarding their rights and interests

A journalist investigation found that even if some companies agree to employees taking annual leave, they will create additional obstacles for employees in terms of vacation days, work arrangements, and other aspects. There are many ways to "card": some companies include statutory holidays and weekends in their paid annual leave, and the overlap is automatically offset; Some companies constantly assign work tasks and require employees to work remotely during their annual leave; Split the 5-day annual leave of employees into two halves, requiring a maximum of 2.5 days each time; At the end of the year, if the annual leave is not fully taken, the company requires employees to sign a supplementary leave form and pretend to have taken the annual leave

Lawyer Guo Zheng, a partner of Beijing Tianchi Juntai Law Firm, has been exposed to many paid leave issues: some employers directly use compensation as a substitute for employee leave, which directly leads to the inability to achieve paid annual leave; Some workers voluntarily give up paid annual leave for overtime pay and other compensation; Employees in the sales industry who make up their salary based on "base salary+performance" are worried about the impact of paid leave on their income and are reluctant to give up their rights.

The reporter searched for public information and found that labor disputes were frequent due to unpaid annual leave, insufficient vacation days, and failure to provide economic compensation.

Recently, the People's Court of Yunxi District, Yueyang City, Hunan Province, tried a labor dispute caused by employees not taking annual leave. The court ruled that the company should pay employees more than 13000 yuan in unpaid annual leave wages that have not expired. In a recent case tried by the People's Court of Lushui City, Yunnan Province, Ms. Zhang had been working at Company A before and joined Company B. When applying for annual leave, she was refused on the grounds that she had been with the company for less than a year. Ms. Zhang filed a lawsuit in court, demanding that Company B pay her unpaid annual leave salary of over 4000 yuan, which was supported by the court's ruling.

Wang Qian pointed out that employers do not provide paid leave, indirectly obstruct employees from taking leave smoothly, and refuse to pay compensation without taking leave, all of which are illegal behaviors. Even if the employer directly uses compensation to replace the employee's vacation, it is illegal because the law stipulates that "it is necessary to not arrange annual leave for employees due to work needs" and "with the employee's consent" before compensation can be used to replace actual vacation. If an employer does not arrange leave or pay compensation, the labor administrative department shall order it to make corrections within a time limit. If it fails to make corrections within the time limit, in addition to ordering the payment of corresponding compensation, the employer shall also pay additional compensation. Employees can report and complain to labor supervision and other departments for their rights protection, or file labor arbitration to demand that the employer pay corresponding compensation.

"Although employers enjoy management rights in accordance with the law, they also need to protect the legitimate rights and interests of workers when exercising management rights. For example, if the company abuses its approval power, it indirectly deprives workers of the right to paid annual leave, and if employees do not come to work without approval, there may be absenteeism and disciplinary violations, which may lead to the risk of illegal termination of labor. Therefore, they need to pay compensation for illegal termination of labor contracts to employees. In addition, if employees are not arranged to take paid leave, they may face compensation of three times their wages. If the company engages in the above-mentioned illegal behavior, employees can file a complaint or apply for arbitration through the labor supervision and arbitration department." Guo Zheng said.

Strengthen law enforcement and improve systems, fully implement paid leave

Why is it still difficult to implement paid leave despite the explicit provisions of laws and regulations?

Guo Zheng said that currently, relevant departments of the country have realized the promoting and stimulating effects of paid leave on the economy, culture, and other aspects. There are also relevant provisions in the labor law, but it is still difficult to implement in reality. The important reason is that although the current labor law in China has provisions for paid leave, the specific details and practical methods lack clear provisions, and there are certain gaps and loopholes in the system.

In Wang Qian's view, there are multiple reasons for the inadequate implementation of paid annual leave. Some employers have high work intensity and long working hours, and employee leave inevitably leads to vacancies in some positions and increased labor costs. Therefore, some employers lack the willingness to coordinate and arrange employee leave. From the perspective of workers, some workers value income more than rest and are afraid that requesting leave will affect job stability and promotion opportunities. While working, they often dare not or are unwilling to apply for annual leave, and some workers even do not understand the paid annual leave system. The entire society has not formed the concept and consensus of enjoying paid annual leave, and the law enforcement efforts of labor supervision and other departments are relatively weak. The role of grassroots trade unions in safeguarding rights is also limited.

Professor Li Xiong from the School of Economics and Law at Southwest University of Political Science and Law pointed out that there are three main reasons for the difficulty in implementing paid leave: the current situation of some units employing workers in accordance with the law is worrying, as they have not truly signed contracts with workers in accordance with the labor contract law and established sound rules and regulations; Some workers themselves also have problems and are unfamiliar with China's labor laws and the rights enjoyed by workers. They believe that the right to rest can be waived; Some local governments have incorrect views on political achievements and development, leading to difficulties in law enforcement by labor administrative departments.

According to regulations, the labor administrative department investigates the legal consequences of illegal activities through labor supervision. However, relying solely on labor supervision cannot effectively implement the legal system of paid annual leave. According to Wang Xianyong, a professor at the School of Civil and Commercial Economics and Law of China University of Political Science and Law, the implementation mechanism of administrative intervention in labor disputes is difficult to effectively implement, and it is also an important reason why paid annual leave cannot be fully implemented. On the one hand, in the face of a large number of employers and various illegal behaviors within the scope of labor law, labor supervision often lacks strength. On the other hand, due to the fact that the cost of supervision and the risk of litigation must be borne by the labor administrative department, it is also easy for the labor administrative department to subjectively refuse to intervene in supervision and hope that workers can resolve the issue through labor arbitration or litigation.

It is gratifying that in recent years, the paid leave system has been increasingly valued.

In December 2019, the National Development and Reform Commission, the Ministry of Human Resources and Social Security, and other nine departments jointly issued the Implementation Opinions on Improving the Holiday Tourism Travel Environment and Promoting Tourism Consumption, proposing to increase efforts to implement paid leave for employees and promote staggered travel. The 14th Five Year Plan clearly proposes to improve the holiday system and fully implement the paid leave system.

During this year's National People's Congress and Chinese People's Political Consultative Conference, a member of the Chinese People's Political Consultative Conference proposed to enforce paid annual leave policies, improve regulations on corporate violations of legal responsibility, strengthen constraints on the implementation of corporate annual leave, prohibit companies from canceling employee annual leave agreements unless under special circumstances, and make explicit provisions for situations where companies cannot arrange employee leave due to work needs. At the same time, increase the cost of illegal activities and moderately raise the administrative penalty standards for illegal activities. Intensify the accountability efforts of the labor supervision department, timely punish enterprises and their leaders who violate the regulations on paid annual leave for employees in accordance with the law, and effectively safeguard the rights and interests of employees to rest and take leave.

To ensure the implementation of the paid leave system, Li Xiong proposed to strengthen research in theory. We need to strengthen research on the legal issues underlying a series of issues related to paid leave. Based on this, legislation should be followed up to establish a sound working hour system and rest and vacation system. We should reform, abolish, and interpret them, introduce new concepts, and implant concepts such as incentive law, development law, and preventive law into legislation. At the same time, further smooth channels for safeguarding rights such as supervision, complaints, arbitration and litigation.

Wang Xianyong proposed to revise the Regulations on Paid Annual Leave for Employees. Firstly, it is clear that paid annual leave has the dual attributes of labor standards and creditor's rights. Implement the principle of mandatory paid annual leave and establish an administrative law enforcement implementation mechanism based on paid annual leave standards. Secondly, paid annual leave disputes between workers and employers have returned to labor disputes, including annual leave disputes requesting actual leave, annual leave disputes requesting payment of annual leave wages, and annual leave disputes requesting payment of alternative monetary compensation. Thirdly, the law can authorize labor administrative departments to intervene in paid annual leave disputes through administrative mediation. Fourthly, trade unions assist workers in realizing their paid annual leave rights through representative mechanisms and legal supervision mechanisms.

Wang Qian believes that the labor administrative department should increase its proactive law enforcement and inspection efforts, and make the implementation of paid annual leave by employers a key task of labor supervision. It is also necessary to increase the publicity of paid annual leave, improve the legal awareness of workers, and promote social consensus on enjoying paid annual leave. Legislation should clearly adhere to the principle of actual leave and use monetary compensation as an exception, and not allow "money for leave" to become a common phenomenon.

"In practice, there are a large number of workers who voluntarily give up paid annual leave, which is fundamentally due to their weak legal awareness. It is recommended to enhance their legal awareness and promote the effective implementation of the paid annual leave system through legal publicity and other means." Guo Zheng said.