Offline "irregular work" has to be online "irregular overtime"?

Original title: Some employers take advantage of workers' unfamiliarity with the working hours system and use the special working hours system as an excuse for "invisible overtime"——

[Can I be offline outside of 8 hours?(3)] If I work irregular hours offline, I have to work overtime online "irregular hours"?

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With the increasing number of online office scenarios, "how long have I worked" has become a difficult number to quantify. Some experts believe that in the digital age, no matter what kind of working hours system is implemented, as long as online work is adopted, online overtime may occur.

"It was precisely on the basis of the obvious misjudgment in the first instance that we found that Ms. Li was determined to appeal. As the first lawyer in the country to clarify the issue of "invisible overtime" in the judgment document, Wang Ziyuan, a lawyer at Beijing Jiuwen Law Firm, recently introduced to reporters the key details of the second-instance victory of the case.

In the first instance, the company claimed that it had agreed with Ms. Li on irregular working hours in the employment contract, so the judge of the first instance rejected Ms. Li's claim for overtime pay. However, in the second instance, because it was found that the company had not approved the irregular working hours system, the court made a change in judgment based on the objective evidence of overtime provided by Ms. Li.

Many workers said that with the increasing number of online office scenarios, "how long have I worked" has become a difficult number to quantify. For workers who are subject to the special working hours system, it is more difficult to determine the online overtime hours because the working hours are not fixed. Some employers even take advantage of employees' unfamiliarity with the working hours system to deliberately cover up the fact that employees work overtime online.

The special working hours system has become an excuse for online overtime

Ms. Li joined an Internet technology company in Chaoyang District, Beijing in 2019 as a product operator. Ms. Li asserted that during the nearly one-year work, she continued to use social media such as WeChat and DingTalk to communicate with customers and colleagues during non-working hours, and the company did not pay her overtime for a total of 595.8 hours in various forms.

In the first instance, the company stated that it had agreed with Ms. Li on an irregular working hours system in the employment contract, but the judge of the first instance held that since the irregular working hours system had been agreed, there was no non-working time in the strict sense, and therefore rejected Ms. Li's claim for overtime pay.

"However, after the first trial, we found that the irregular working hours system declared in the labor contract had not been approved by the human resources and social security department. Wang Ziyuan said that according to the law, the implementation of the irregular working hours system by the employer must be approved by the human resources and social security department, and cannot only be agreed in the labor contract, and the irregular working hours system is generally only applicable to a small number of employees in special positions, such as senior management personnel, field personnel, sales personnel, as well as long-distance transportation personnel, taxi drivers and some stevedores of railways, ports, warehouses, etc.

Ms. Li herself did not know about the so-called irregular working hours, and she still clocked in and out of work every day, and her job position was not applicable. After Wang Ziyuan communicated with Ms. Li, Ms. Li filed an appeal on this basis because the determination of the irregular working hours system in the first instance clearly did not comply with the existing legal provisions.

In the end, the Beijing No. 3 Intermediate People's Court, based on objective evidence such as the Duty Schedule of the Official Holiday Community Account provided by Ms. Li, held that Ms. Li's use of social media to work during off-duty hours and rest days on some working days should be deemed to constitute overtime, and the company should pay Ms. Li 30,000 yuan in overtime pay.

"I think it's sending a signal to society that with the development of technology, online work does bring efficiency and convenience, but it does not mean that workers' right to rest can be violated. If the employee does provide substantive work online outside of working hours, the court will also have the discretion to find that. Wang Ziyuan believes that this case can serve as an example.

During the interview, the reporter learned that in addition to Ms. Li, there are also many workers who are not familiar with the relevant regulations such as the approval and scope of application of the working hours system. Ms. Chen, who works in finance in Shanghai, often needs to carry a computer on her days off to communicate with her colleagues and leaders, "but the leaders said that we have a flexible work system and calculate performance according to the project, so no one will take the initiative to apply for overtime pay, and I don't know whether it has been approved." ”

Review overtime facts with reference to work saturation

According to mainland law, the special working hours system includes irregular working hours and comprehensive calculation of working hours. According to the Interim Provisions on the Payment of Wages, if the comprehensive calculation of working hours is implemented with the approval of the labor administrative department, the part of the comprehensive calculation of working hours exceeding the statutory standard working hours shall be regarded as extended working hours, and the wages for the extended working hours shall be paid to the workers in accordance with the regulations. Workers who work irregular hours are not subject to the above provisions.

"There are not many cases in which employees who apply for overtime pay under the comprehensive calculation of working hours system, and when reviewing the facts of overtime, courts will generally refer to the work saturation of the employee when working from home or online to determine whether there is a fact of online overtime. Li Yi, a partner at JunZeJun Law Offices in Beijing, said.

In a labor dispute case heard by the Beijing No. 2 Intermediate People's Court, Mr. Yang was the head of human resources at a catering company in Xicheng District, Beijing. In June 2020, Mr. Yang filed a lawsuit with the court requesting the company to pay him overtime wages for overtime during his employment. From June 2019 to May 2020, the company implemented a comprehensive calculation of working hours through the approval of the human resources and social security department. As for Mr. Yang's claim for overtime work from February to April 2020, the court held that due to the new crown epidemic, Mr. Yang was working from home and there was a high possibility that the workload would be unsaturated, so the court did not recognize Mr. Yang's claim for overtime.

"In the digital age, no matter what kind of working hours system is implemented, online or offline work methods may be adopted, and online overtime problems may arise if online work methods are adopted. Wang Qian, a professor at the Shanghai University of Political Science and Law and director of the Social Law Research Center of the Shanghai Institute of Justice, said, "For example, Shanghai stipulates that even if irregular working hours are adopted, overtime pay must be calculated on statutory holidays. ”

Explore time management for the digital age

"Traditional standard working hours may not be able to fully adapt to flexible working arrangements and the modern trend of online work. Li Yi suggested that in order to protect workers' right to rest, it is possible to consider formulating policies and systems to manage fragmented working hours, and encourage employers to take measures to clearly stipulate working hours, the content scope and length of online work.

"Under the special working hours system, although the working hours of workers are not fixed, it is still necessary to guarantee the right of workers to rest. Wang Dandan, a lawyer at Beijing Tian Yuan (Hefei) Law Firm, suggested that technical means can be used to assist in recording, such as project management software and attendance management system, to provide more objective and accurate data support for the determination of overtime hours.

"The blurring of the boundaries between work and rest brought about by the digital age has further exacerbated the conflict between the two sides of labor relations, and it is necessary to reform the overall working hour system in the future. Wang Qian believes that in order to prevent employers from abusing the special working hours system, they should still adhere to the approval requirements for the special working hours system, and at the same time set the application premise as "administrative license" and "personal consent of the employee".

"In response to the problem of 'invisible overtime', it is more important to reasonably set the upper limit of daily working hours or the lower limit of daily rest time, and ensure its implementation by strengthening labor inspections. Wang Qian said.

Source: Workers' Daily