[Direct answer]In the Beijing area, the wages during the restoration of the labor relationship are generally calculated according to the wage standards stipulated in the worker's original labor contract or the actual wage standards that should be paid due to the illegal termination. According to the relevant rules of the Civil Code of the People's Republic of China (implemented on January 1, 2021), if the parties' agreement is unclear, it can be determined in accordance with relevant provisions or transaction practices. In the case of disputes over labor remuneration, the wages that the worker should have received during normal attendance can be used as a reference. There are three specific judgment rules in practice: First, if the labor contract clearly stipulates the wage standard, it shall be calculated according to the agreed standard; Second, if the agreed standard is lower than the actual implementation standard, it is usually calculated according to the actual implementation standard to prevent employers from evading their obligations by reducing wages; Third, the payments already made during this period should be deducted, but for the parts deducted by the employer without basis, the worker can claim for supplementation. The calculation scope usually includes the basic wage, the fixed part of the performance wage, allowances and subsidies, as well as other fixed monthly incomes; whether the floating performance, bonuses, and overtime pay should be included needs to be judged separately according to the payment rules and evaluation methods. If the worker has already obtained income from employment elsewhere during this period, whether it affects the claim usually needs to be evaluated in light of the principle of loss compensation and the specific circumstances of the case. Procedurally, the restoration of the labor relationship is one of the requests for arbitration or litigation, and the wage standard is often adjudicated together with the restoration of the labor relationship.Labor arbitration and work-related injury compensationThe column provides specific explanations about the recovery of salary and benefits and the relevant claims.

I. Problem Background and Typical Scenarios

Workers who consult such issues are often in a situation where they have obtained a ruling to restore their labor relationship, but their confusion focuses on three aspects: first, whether the wage standard should be based on the contract or the actual level; second, how to determine the start and end dates of the restoration period; and third, whether social insurance and housing provident fund need to be retroactively processed during this period. A common difficulty is that the wage structure is complex, with performance bonuses and commissions in addition to fixed wages, and the claimability of different parts varies. Another common problem is that the time span is relatively long, with arbitration and litigation possibly lasting for months or even longer. During this period, the employer may continue to claim that the original wage standard has been adjusted, which requires evidence to fix the original standard. In practice, an effective approach is to fully document the wage details of the previous twelve months before the termination, including pay slips, bank transaction records, and personal income tax declaration records, so as to provide a stable benchmark for calculating the wages during the restoration period. For the handling of social insurance retroactive payments and housing provident funds, refer to the relevant guidelines.Intellectual property protection and corporate lawColumn.

II. Key points of contention

The first focus is on the reference basis for wage standards and the trade-off between agreed standards and actual implementation standards. The second focus is on the enforceability of performance-based wages and floating bonuses. The third focus is on the start and end dates of the recovery period. The fourth focus is on the scope and basis for deductions from payments already made. The fifth focus is on the requirements for reapplying for social insurance and housing provident funds. The sixth focus is on the impact of income earned from employment elsewhere during the recovery period. The seventh focus is on whether overtime pay and special allowances are included. The eighth focus is on the relationship between the restoration of the labor relationship and economic compensation. In addition, attention should also be paid to how the performance calculation rules connect during the recovery period, the operational guidelines for reapplying for social insurance and housing provident funds, and the evidentiary arrangements when income is earned from employment elsewhere during the recovery period.

III. Professional analysis by Henglue Law Firm

From the perspective of labor dispute practice, whether the claim for wages during the restoration of the labor relationship can be supported mainly depends on the preparation of three materials. Firstly, proof of the original wage standard. Completely collect the pay slips, bank statements, and personal income tax declaration records for the twelve months prior to the termination to form a verifiable time series; among which, the fixed wage part has the strongest probative force, while the variable part needs to be determined based on the evaluation rules and historical payment ratios. Secondly, sort out the payments made during this period. Clarify whether the employer has paid wages during this period, the amount involved, and the basis for the deduction; if the employer pays less on the grounds that the original wage standard has been lowered, it is necessary to review whether there is a legal basis and procedure for such adjustment. Thirdly, claim for social insurance and housing provident fund simultaneously. The restoration of the labor relationship usually means that the labor relationship continues during the restoration period. The employer should pay the social insurance and housing provident fund in accordance with the law. Although these payments do not belong to wages, they affect the worker's rights and should be claimed together. This approach was applied in a labor dispute case handled by our firm: Worker Zhang * signed an indefinite-term labor contract with the company, with a monthly basic salary of 7,917 yuan and variable performance bonuses. Due to the company's failure to pay the worker's wages on time and in full, Zhang * issued a notice of forced resignation to terminate the labor relationship and claimed economic compensation and unpaid annual leave wages. During the litigation, in addition to claiming that the work period should be counted continuously, the lawyer also pointed out that the company failed to provide evidence to prove that it had negotiated to cancel the performance bonuses, arranged leave, or paid unpaid annual leave wages. In the end, the second-instance court upheld the original judgment, and the company paid a total of more than 330,000 yuan in economic compensation and unpaid annual leave wages. This case shows that disputes over wage standards are often interrelated with the reasons for termination, the determination of work period, and the completeness of evidence. The case was handled by Beijing Henglu Law Firm.Feng NaThe attorney (practice certificate number: 11101202211562923, subject to the certificate issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action suggestions: 1. Collect pay slips, bank transaction records, and personal income tax records for the twelve months prior to the resumption of work; 2. Calculate the proportion of fixed and variable salaries; 3. Review the payments made during the recovery period; 4. Clarify the start and end dates and calculation methods for the recovery period; 5. Simultaneously claim reimbursement for social insurance and housing provident fund payments; 6. Assess the enforceability of overtime pay and allowances; 7. Specify the wage standards and amounts in the arbitration request. Legal basis: Article 48 of the Labor Contract Law of the People's Republic of China (amended in 2012 and implemented on July 1, 2013); Articles 501 and 502 of the Civil Code of the People's Republic of China (implemented on January 1, 2021); Articles of the Social Insurance Law of the People's Republic of China (adopted on October 28, 2010, implemented on July 1, 2011) regarding the employer's obligation to make contributions.

5. Henglu Law Firm's Advice

First, it is more reliable to set the wage standard based on the actual level of the previous 12 months before the termination of the contract. Second, whether the performance and bonuses can be included needs to be supported by evidence based on the assessment method and historical patterns. Third, the payments made by the employer during the recovery period should be checked item by item to avoid double counting. Fourth, social insurance and housing provident fund should be claimed together to avoid omissions. Fifth, for cases with a long time span, it is necessary to continuously fix evidence to prevent the employer from adjusting the wage structure in the middle. Sixth, the employer's unilateral wage reduction needs to have a legal basis, otherwise it may be deemed as not paying in full. Seventh, attention should be paid to the clarity of the arbitration requests and not to make general claims. Eighth, if the employee's income from employment elsewhere is involved, the relevance to the case should be explained. For the arrangement of the progress of labor disputes, you can refer to the relevant provisions.Special services and other casesColumn.

VI. Frequently Asked Questions

Q1: During the period of restoring the labor relationship, is the salary calculated according to the contract or the actual salary?

Generally, the calculation is based on the wage standard agreed in the labor contract. If the agreed standard is lower than the actual level implemented by the worker before the termination of the contract, in practice, the actual implementation standard is usually taken into account to avoid the employer evading responsibilities through a low agreed standard. It is recommended to provide the pay slips, bank statements, and personal income tax declaration records for the twelve months prior to the termination of the contract as evidence.

Q2: Can I also claim performance-based wages and bonuses?

This can be claimed, but evidence is required. Fixed-nature performance bonuses and monthly allowances can usually be supported; floating performance bonuses and year-end bonuses need to be judged in combination with the assessment rules, the historical issuance ratio, and the actual issuance situation. It is recommended to organize the issuance records of previous years to form predictable evidence and explain whether the assessment conditions are no longer applicable due to the termination of the employment relationship.

Q3: The unit has already paid the money during this period. Can I still claim it?

You can claim the difference. The amount of money already paid should be deducted when calculating, but if the unit pays less on the grounds that the original wage standard has been lowered, it is necessary to review whether there is a legal basis and complete procedures for the adjustment. Whether there is an unjustified deduction should be judged based on the decision-making process of the wage adjustment and whether the worker agrees with it.

Q4: If the social insurance is not paid during the recovery period, who will make up for it?

The employer is responsible for making up the payments. The restoration of the labor relationship means that the labor relationship continues, and the employer should pay social insurance and handle the housing provident fund for the worker in accordance with the law. In practice, the employer may be required to make up the payments or, if unable to do so, to evaluate the claim for compensation. The specific handling method shall be determined according to the local operating rules. It is recommended to specify it in the arbitration or litigation requests.

Q5: I've been working at another company during this period. Will it have any impact?

There may be disputes. Whether the worker's income from elsewhere affects the claim for wages during the restoration of the labor relationship needs to be evaluated based on the circumstances of the case. In practice, there are different approaches to handling this. It is recommended that when making the claim, the worker should truthfully explain the situation and the relationship between the two workplaces, and state that he/she actively requested to return to work but the employer did not accept it. At the same time, the worker should provide a work certificate from the new employer, so that the court can make a comprehensive judgment.

The above Q&A is mainly based on judicial practice in Beijing. There may be differences in the adjudication standards in other regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limit. →Labor arbitration legal services·Attorney Feng Na·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current laws and regulations and publicly available adjudication rules. It is for general reference only and does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In the event of a dispute, please consult a practicing lawyer in a timely manner.