[Direct answer]It depends on the specific circumstances. If the 13th month's salary is written into the labor contract or the effective system and there are no legal obstacles to calculating it monthly, it should generally be supported to pay it proportionally if the employee has worked for less than a year; if it is generally agreed that "it will not be paid if the employee has worked for less than a year" and the payment conditions have been met, the clause may be deemed invalid because it excludes the employee's main rights. The key points are: whether the 13th month's salary is a fixed remuneration or a discretionary bonus, whether the payment conditions have been met, and who set the rules and how they were set. The results will also be different if the employee leaves the company due to company reasons or voluntarily jumps to another job at the end of the year.

I. Problem Background and Typical Scenarios

In November, the company promised to pay a thirteenth month's salary, but when the employee left the company in November of the following year, the company refused to pay it, citing the reason that the employee had not completed a full year of service. Or, if the contract stipulates that the thirteenth month's salary will be paid together with the December salary, but the company downsizes in the middle of the year and dismisses employees without giving them any compensation. The disputes over the thirteenth month's salary often arise from the interpretation of the phrase "completing a full year of service".

II. Key points of dispute

First, the qualification of the 13th month's salary: is it a fixed labor remuneration or a discretionary bonus? Second, the effectiveness of the issuance conditions: whether the full-year clause and the in-service clause are valid. Third, the proportional conversion: how to calculate for periods less than a full year. Fourth, the impact of the reasons for leaving: the differences between the company's termination of the employment contract and the employee's resignation.

III. Professional analysis by Henglue Lawyers

Based on Henglue Lawyer's experience in handling year-end bonuses and the 13th month's salary cases, the review process consists of four steps: 1. **Classification**: If the labor contract or recruitment notice explicitly stipulates that the annual salary includes the 13th month's salary, or if the amount is fixed and the payment time is clear, it constitutes conditional labor compensation that must be paid upon fulfillment of the condition. If the company's rules merely state "the company may distribute it at its discretion based on operational conditions," it falls within the employer's discretionary authority, making it more difficult to enforce, but if it has been consistently paid in previous years and has become a company practice, the employee can claim it as a customary benefit. 2. **Clause validity**: For clauses stipulating that "only employees who are still employed at the time of payment are eligible," Beijing-based arbitration rulings tend to distinguish between terminations initiated by the employer (e.g., dismissal, layoffs, bankruptcy) and those initiated by the employee. In the former case, the condition is deemed fulfilled and support is granted proportionally; in the latter case, support is more difficult to obtain. For clauses stipulating that "no payment is made for less than a year of service," if this breaks with the company's usual practice of prorating payments monthly, support may be granted proportionally. 3. **Calculation**: The mainstream approach is to calculate the fixed amount of the 13th month's salary based on the actual number of working months compared to the full 12-month period. 4. **Evidence collection**: The four primary sources of evidence include the labor contract, offer letter, employee handbook, and historical payment records. For verbal promises, chat records and comparisons with colleagues in the same position can be used as supporting evidence. Strategically, employees who are laid off at the end of the year must include a claim for the 13th month's salary in their arbitration request. If this claim is omitted, they will need to initiate a separate arbitration case.

IV. Practical Suggestions and Legal Basis

The first step is to check the provisions on the 13th month's salary in the labor contract, the recruitment notice, and the employee handbook to determine its nature. The second step is to collect the payment records of previous years and the payment records of colleagues to prove the practice and standard. The third step is to request a pro-rata settlement of the 13th month's salary in writing upon leaving the company, and retain evidence of the refusal to pay. The fourth step is to file a labor arbitration application against the refusal to pay, and claim the compensation based on the calculated amount, noting the one-year statute of limitations. The main legal basis includes: Article 30 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012) regarding the full payment of labor remuneration, and Article 46 regarding economic compensation; Article 47 and Article 50 of the Labor Law of the People's Republic of China (amended on December 29, 2018) regarding the distribution and payment of wages; and the Interim Regulations on Wage Payment (effective since January 1, 1995) regarding the composition and payment of wages. Specific applications shall be subject to the currently effective regulations.

5. Henglu Law Firm's Reminder

Three key points for defending the right to receive the 13th month's salary: First, determine the nature of the dispute and then discuss the conditions. Fixed compensation and discretionary bonuses result in different outcomes; calculating the salary based on the number of months worked during the employment period is the mainstream approach, but clauses stipulating that the employer does not pay the 13th month's salary may not stand up in court; and the reason for leaving the job determines the outcome of the dispute, with the conditions for being laid off being regarded as achievements. Those involved in disputes over the 13th month's salary can seek legal assistance through the following channels:Labor disputes and work-related injury compensationThe service obtains an overall solution, and the year-end bonus system can be integrated into itCompany and commercial disputesFor disputes related to severance payments, you can refer to the following documents for reference:Contract disputesThe column provides advice on the enforcement of judgmentsCreditor's rights and debts, and enforcementTeam.

VI. Frequently Asked Questions

Q1: Is the 13th month's salary a legally required payment?

It's not a statutory item, and the law does not mandate the issuance of the thirteenth-month salary; however, once it's included in the labor contract, the recruitment notice, or has become a systemic practice, it's protected by law, and employers cannot arbitrarily refuse to pay it.

Q2: If I am dismissed after working for ten months, can I receive the 13th month's salary on a pro-rata basis?

Usually, it is possible. For those who leave their jobs due to the termination by their employers, the issuance of severance pay is considered an achievement, and the support is calculated based on the proportion of actual working months to twelve months. This is the mainstream judicial interpretation.

Q3: If the contract states that "the employee must be employed at the time of payment", can they still make a claim?

Reasons for resignation: For those who resign due to company reasons, the condition may be deemed invalid because it excludes the workers' main rights, or it may be considered a fulfillment of the contract; for those who resign voluntarily and have not reached the payment date, it is more difficult to claim compensation, but if the company has consistently paid compensation in previous years, it is still possible to strive for it.

Q4: The company said that the 13th month's salary is a welfare benefit that can be cancelled at any time. Is that right?

It's not absolute. Those that have been fixed as labor compensation cannot be unilaterally cancelled; if they are indeed discretionary bonuses, the cancellation also requires going through a democratic process and providing a justification. If they have been consistently distributed for years and are suddenly cancelled, the reasonableness of the cancellation will be reviewed.

Q5: Is there a time limit for claiming the 13th month's salary?

Arrears during the continuation of the labor relationship are not subject to the one-year arbitration statute of limitations; after leaving the job, the employee should apply for arbitration within one year, and the conversion base and evidence related to the working period should be fixed before leaving the job.

This article is written based on the common judicial interpretation in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

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 limits.Labor arbitration legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.