Can I ask for overtime pay on night duty? Some netizens inquired that he worked in the engineering department of a property company, and the company stipulated that the employees of the engineering department needed to work two night shifts a week, and the night shift time was from 6 p.m. to 8 a.m. the next day. The night shift is mainly responsible for answering the phone and handling emergency repairs. But the company never paid him overtime pay, only a night shift subsidy of 40 yuan. He wanted to know, after working during the day, he had to work a night shift at night, obviously exceeding the 8-hour work system, could he ask the company for overtime pay for night shift hours?
In fact, the main question of this netizen is whether his night shift is on duty or overtime. If it is determined to be overtime, then the property company must pay overtime pay, and if it is on duty, then there is no overtime pay. So is he on duty in this situation?
First of all, duty does not yet have a clear definition in law. However, according to judicial practice, duty generally refers to the employer's arrangement of employees to engage in tasks unrelated to their own work due to safety, fire protection, holidays, etc. According to this definition, the content of this netizen's work at night is related to his own work, and he obviously does not belong to duty. It should be classified as overtime.
However, this netizen also told me that when he is fine on the night shift, there is a bed to rest in the duty room, and he can sleep if he is fine, and he will call him to do things when he has something. Comparing his usual work intensity during the day with the work intensity of the night shift, it is obvious that he has nothing to do most of the time during the night shift, and the property company also pays the night shift subsidy separately. Therefore, this netizen's situation should still belong to duty and not overtime, and his claim for overtime pay will definitely not be supported by arbitration or the court.
For example, Article 22 of the Minutes of the Seminar on the Application of Law in Labor Dispute Cases between the Beijing Higher People's Court and the Beijing Labor Dispute Arbitration Commission stipulates that in the following circumstances, if the employee requests the employer to pay overtime wages, it will generally not be supported: (1) The employer is responsible for safety, fire protection, (2) The employer arranges the worker to engage in tasks unrelated to his or her own work, but the employer arranges for the worker to perform tasks related to his or her own work, but the employee can take a rest during the period. In the above circumstances, the employee may request the employer to pay the corresponding benefits in accordance with the labor contract, rules and regulations, collective contract, etc.