Establish and improve the labor and employment system in the digital era, and give both parties to labor relations full room for negotiation
How far is it to crack the "rest without resting", how far is the offline right to land?
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Labor law professionals pointed out that mainland laws and regulations have detailed and clear provisions on workers' right to rest, which provides a basis for the implementation of offline rest rights. However, there are still some practical difficulties in implementing and protecting workers' right to offline rest.
Mr. Chen, who works as a salesman in a physical examination center, usually clocks in and out of attendance through DingTalk, and the labor contract signed with the employer stipulates a standard working hour system, but he often needs to communicate with customers after work, rest days, and statutory holidays, contact projects, and accept assignments from superiors. In 2023, Mr. Chen resigned after working for the unit for five years and demanded compensation for overtime pay from the medical examination center through labor arbitration. Will Mr. Chen's request be supported?
Online work undermines workers' right to rest
As the agent of Mr. Chen's case, Xiong Xingxing, a lawyer at Jilin Zhengji Law Firm, told reporters that under normal circumstances, the burden of proof for overtime pay lies with the employee, and if the evidence provided by the employee is insufficient to prove the existence of overtime work and the necessity of overtime, it is difficult for the employee's claim for overtime pay to be supported. In this case, Mr. Chen submitted screenshots and screen recordings related to WeChat work groups, DingTalk attendance system, etc., and the employer recognized the authenticity of the evidence, and the case was finally settled through mediation, and Mr. Chen's legitimate rights and interests were safeguarded.
"The biggest difficulty in this case is to prove that online work undermines workers' right to rest. Xiong Xingxing said that at present, mainland laws and regulations do not have clear provisions on the right of workers to rest offline, but the right to rest offline belongs to the right to rest, which is a right that workers should enjoy in accordance with the law.
"The right to offline rest means that workers have the right to refuse to communicate or conduct work through digital tools outside of their statutory or agreed working hours, and not to be treated unfavorably as a result. Ren Guoyou, deputy dean and professor of the School of Safety Engineering of the China Institute of Labor Relations, said that the core of this right is to ensure that workers are not disturbed by employers outside working hours, ensure the integrity and continuity of rest periods, and promote the realization of work-life balance.
In judicial practice, there are also some cases that reflect the law's attention to the determination of online overtime and the right to offline rest. According to a case released on the judgment document website, Liao joined an information technology company in Hangzhou, Zhejiang Province in January 2021 as an after-sales service manager, and the position implements a standard working hour system. In September of the same year, Liao resigned and applied for arbitration, demanding that the company pay him overtime wages for statutory holidays, rest days, and extended working hours on working days during his employment, totaling more than 190,000 yuan. Both the arbitral award and the court of first instance rejected Liao's claim.
In the second instance, the court held that if an employee provides necessary assistance and cooperation to the employer's work without affecting his rest, it should generally not be deemed to be overtime. In this case, the evidence provided by Liao showed that in addition to the above-mentioned temporary and short-term work exchanges, he still had substantive labor content, such as going out to work on the spot, submitting work reports, providing after-sales maintenance support, etc., which obviously occupied the rest time and should be found to be overtime. In the end, the court comprehensively considered that the employer could not objectively grasp Liao's use of social media to work, and that Liao could engage in other life activities while working online, and determined that Liao's overtime pay was 10,000 yuan.
There are misunderstandings on both sides of the labor relationship
Promoting the implementation of the right to offline rest is conducive to ensuring the health and safety of workers, improving the work efficiency and enthusiasm of workers, as well as the satisfaction and loyalty of workers to employers, and building harmonious labor relations. Liao Weicheng, a lawyer at Guangdong Kaisu Law Firm, believes that the right to offline rest should include two aspects: first, the right of workers to refuse work arrangements outside of working hours and enjoy the right to rest, and second, the right of workers to work online should be subsidized.
Professor Scope of the School of Labor Economics at Capital University of Economics and Business said that although some judicial practices have shown the importance and support for workers' right to offline rest, the implementation of this right still faces some practical difficulties.
"At the enterprise level, first, enterprise managers do not necessarily accept the right to offline rest; second, after work, they still arrange and complete work through the Internet, which essentially reflects the overall management level of the enterprise and the production efficiency of workers needs to be improved; third, the intensity of supervising and supervising the implementation of workers' right to rest needs to be strengthened. The scope added.
Ms. Li, who has more than 10 years of experience in human resources, told reporters that even though online overtime often occurs in reality, there is no concept of online overtime in many company management regulations, let alone the right to offline rest. "The company doesn't allow workers to compete with the company like this. Employees claim to work overtime online, but the company doesn't have a grasp of the actual work situation, which is difficult to monitor and measure, so it is not easy to implement. ”
For Mr. Zhang, a middle-level leader at an Internet company, working online on his days off is a "daily routine". "Most of them are due to a lot of weekday meetings and chores, the original work plan is disrupted, and it is necessary to make up for it after working overtime on the weekend, or the product that the department is responsible for has a failure and needs to be dealt with urgently. Mr. Zhang told reporters that the company stipulates that only overtime applications initiated by leaders can be approved and arranged for compensatory leave.
"Guaranteeing workers' right to offline rest still faces institutional obstacles and practical difficulties with low social awareness. Ren Guoyou believes that the society's awareness of the right to offline rest is insufficient, and some workers may ignore their own rest needs while pursuing work efficiency and performance, or even take the initiative to give up the right to offline rest.
The relevant supporting systems still need to be improved
From the perspective of scope, although the existing legal system has a certain basis for the right to offline rest, there are still areas that need to be improved. For example, the relevant system of non-retaliation for the right to offline rest has been improved, that is, if an employee refuses to work on the grounds of the right to offline rest after work, the employer shall not impose an adverse sanction.
It is worth noting that it is also necessary to clarify the exception provisions for the right to offline rest, and to face up to the differences between different employers, on the basis of setting up the institutional framework of the offline right, the employer and the employee should be given room for free negotiation, such as in specific occupations or under specific circumstances, it should not be exercised. "The scope is also recommended.
Xiong Xingxing said that during the statutory rest time, the employer should protect the employee's right to rest in accordance with the law, and should not extend the working time in disguise to squeeze the rest time of the employee. She suggested that it is necessary to further refine and clarify which behaviors of employers infringe on employees' right to offline rest, which situations require online overtime pay, and increase the cost of illegal overtime work for enterprises, and at the same time, it is necessary to improve the complaint and reporting mechanism for employees, smooth the channels for rights protection, and return workers a complete right to rest.
With the increase of social attention and the promotion of the efforts of all parties, some progress has been made in the protection of workers' right to offline rest. However, with the increasing number of digital work scenarios, it is necessary to gradually establish and improve the labor and employment system in the digital era, so that the "algorithm" can be full of warmth and achieve a win-win situation for enterprises and employees.
Reporter Tao Wen
Source: Workers' Daily