The Spring Festival has just passed, and there are still many laborers working hard during the holidays. If they sacrifice the good time to spend time with their families and rest, can they claim overtime pay from their employers, and if so, how?
Tip 1: Be clear about the "working hour system"!
Workers should be aware of the working hours that apply to their positions.
According to the Labor Law of the People's Republic of China and relevant regulations, the state implements a working hour system in which the daily working hours of employees shall not exceed eight hours and the average weekly working hours shall not exceed 44 hours, and the employer shall ensure that the employees have at least one day off per week, i.e., the standard working hours system. If an enterprise is unable to implement the standard working hours system due to the characteristics of production, it may implement other work and rest methods with the approval of the labor administrative department. Accordingly, there are three types of working hours in the mainland, namely, the standard working hours system, the comprehensive calculation working hours system, and the irregular working hours system.
According to the Beijing Municipal Regulations on the Payment of Wages, if an employer has been approved to implement a system of comprehensive calculation of working hours, the employer shall calculate the wages of the workers according to the actual working hours of the workers during the period of comprehensive calculation of working hours, the part of the total actual working hours of the workers that exceed the total standard working hours shall be deemed to be extended working hours and shall be paid overtime wages at 150% of the wage base; and if the employees are arranged to work on statutory holidays, they shall be paid overtime wages according to 300% of the wage base. If the employer has been approved to implement the irregular working hours system, the provisions of Article 14 of these Provisions shall not apply, that is, the employer is not required to pay overtime wages.
Therefore, Beijing stipulates that if an employee's position is subject to irregular working hours, the employee cannot claim overtime pay. If the employer arranges the employee to work on statutory holidays, it shall pay overtime wages according to 300% of the wage base; if the employer arranges the employee to work during other periods, it shall depend on whether the total actual working hours of the employee exceed the total standard working hours during the comprehensive calculation of working hours, and if the total standard working hours are exceeded, it shall be regarded as extended working hours, and overtime wages shall be paid according to 150% of the wage base. Therefore, under the comprehensive calculation of working hours, there is no 200% wage for overtime work on employees' rest days.
Tip 2: The nature of overtime should be distinguished!
It is necessary to distinguish whether it is overtime on statutory holidays or rest days, and different calculation standards apply.
According to the relevant provisions of the Labor Law of the Mainland, if a worker is assigned to work on a rest day and cannot be arranged to take a compensatory break, he shall be paid a wage remuneration of not less than 200 percent of his wages, and if he or she is assigned to work on a statutory holiday, he shall be paid a wage remuneration of not less than 300 percent of his wages.
According to the provisions of the National Festival and Memorial Day Holiday Measures (revised on December 11, 2013), there are 11 statutory holidays throughout the year:
(1) New Year, 1 day off (January 1);
(2) Spring Festival, 3 days off (the first, second and third days of the first lunar month);
(3) Qingming Festival, 1 day off (on the day of Qingming in the lunar calendar);
(4) Labor Day, 1 day off (May 1);
(5) Dragon Boat Festival, 1 day off (on the day of the Dragon Boat Festival of the lunar calendar);
(6) Mid-Autumn Festival, 1 day off (on the day of the Mid-Autumn Festival of the lunar calendar);
(7) National Day, 3 days off (October 1, 2, 3).
Therefore, the above 11 days are statutory holidays, and if the employee works overtime, the employer shall pay 300% of the overtime wage of the wage base, and if the employee works overtime, the employer shall pay 200% of the overtime wage if the employee works overtime.
Tip 3: Master the calculation method!
How is the wage base for overtime pay calculated?
In accordance with Article 51 of the Labor Law, employers shall pay wages on statutory holidays in accordance with the law, i.e., the 11 statutory holidays stipulated by the state shall not be excluded when converting daily wages and hourly wages. Accordingly, the daily and hourly wages are converted as follows:
Daily wage = monthly salary income ÷ number of days in the month
Hourly wage = monthly wage income ÷ (monthly pay days× 8 hours)
Monthly payroll days = (365 days - 104 days) ÷ December = 21.75 days
Tip 4: Two "Attentions" to know!
As an employee, what other issues do you need to pay attention to if you want to claim overtime pay?
First, we must pay attention to presenting evidence. If an employee claims overtime pay, he or she shall bear the burden of proof on the existence of overtime work. However, if the employee has evidence to prove that the employer has evidence of the existence of overtime work, and the employer fails to provide it, the employer shall bear the adverse consequences. The evidence to prove overtime generally includes attendance records, overtime approval forms, work records during overtime, overtime reimbursement vouchers, chat records with leaders, audio and video recordings, and worker certificates, etc., as long as the employee can provide preliminary evidence, the burden of proof is shifted to the employer. The employer generally has evidence such as whether the employee works overtime, the specific overtime hours and the length of the overtime hours, and if the employer fails to provide it, it will bear the adverse consequences, and the presumption that the employee's claim is established.
The second is to pay attention to the timeliness requirements. Article 27 of the Law on Mediation and Arbitration of Labor Disputes stipulates that the limitation period for applying for arbitration of labor disputes is one year. The limitation period for arbitration shall be calculated from the date on which the parties knew or should have known that their rights had been infringed. If the statute of limitations for arbitration provided for in the preceding paragraph is interrupted because one of the parties claims rights against the other party, or requests rights and remedies from the relevant authorities, or the other party agrees to perform its obligations, the limitation period for arbitration shall be recalculated from the time of interruption. Where the parties are unable to apply for arbitration within the limitation period provided for in paragraph 1 of this Article due to force majeure or other legitimate reasons, the limitation period for arbitration shall be suspended. The limitation period for arbitration shall continue to run from the date on which the reasons for the suspension are removed. In the event of a dispute arising from arrears of labor remuneration during the existence of the labor relationship, the employee's application for arbitration shall not be subject to the one-year limitation period for arbitration, but if the labor relationship is terminated, the application shall be filed within one year from the date of termination of the labor relationship. Since overtime pay is also a labor remuneration, the statute of limitations for an employee's claim for overtime pay is filed within one year from the date of termination of the automatic relationship.
Text: Yang Shuqi (Beijing Fengtai District People's Court)
Source: Beijing Youth Daily