At the beginning of this year, the work report of the Beijing High People's Court mentioned a case of "invisible overtime" using social software such as WeChat, which was on the hot search, and this case was the first case in the country to clarify invisible overtime in a judgment document. When the WeChat group becomes a work group, you still have to look at your mobile phone to reply to messages after work, and the "invisible overtime" on your fingertips has become a common phenomenon, how to effectively protect the right to rest of workers? At this year's National People's Congress and the National People's Congress, the right to rest offline was proposed as one of the solutions to invisible overtime, which once again aroused heated discussions.
The first case of hidden overtime clearly takes the principle of "providing work substance" and the principle of "obviousness of occupied time" as the criteria for determining the problem of hidden overtime. Nandu reporters combed through 64 cases related to invisible overtime in recent years and found that these two principles have long been the mainstream standards in judicial practice, but the problem of difficulty in identifying invisible overtime for employees has also existed for a long time.
To this end, Nandu reporters interviewed Chen Jingyuan, assistant professor at the Law School of Chinese University, and Huang Zhen, a researcher at the Legislative Research Institute of Zhejiang University, in an attempt to clarify the current situation of invisible overtime and the difficulties of the court's determination of invisible overtime.
status quo
More than 80% of the cases do not support the determination of overtime facts
In view of the fact that WeChat has become a common social tool, the reporter of Nandu used "WeChat + overtime" as the keyword to retrieve a total of 7,366 cases in the Peking University magic weapon-judicial case database in the past five years, and finally screened 64 valid cases.
In the valid cases, the employees all filed a claim for determination of overtime work with the court on the grounds of replying to work-related WeChat messages during the break period, and further filed a claim for overtime pay. For example, in a labor dispute case heard by the Licang District People's Court of Qingdao City, Shandong Province, the plaintiff claimed overtime pay from the defendant company. The defendant alleged that most of the chat records provided by the plaintiff were temporary inquiries or inquiries. In the end, the court recognized that in normal work, even if there are temporary and occasional work inquiries during non-working hours, it cannot be regarded as overtime in judicial adjudication, and therefore did not support the plaintiff's request for overtime pay.
In a case heard by the Hongshan District Court in Wuhan, the plaintiff claimed that he had been on 24-hour standby for a long time, and that he had to handle work affairs on WeChat even after work. The court held that the plaintiff's online WeChat account had the characteristics of continuous and coherent communication, and had seriously affected the normal rest and life of the employee, so it should be regarded as substantial overtime, and the enterprise should pay it overtime pay.
Nandu reporters counted the time distribution and regional distribution of 64 cases, and from the perspective of time, the number of cases in the past five years has generally shown an upward trend, and will show an explosive trend in 2022. This trend is in line with the widespread use of social media in the workplace in the digital age and has been linked to the large number of online work activities during the pandemic. From the perspective of regional distribution, the cases of invisible overtime are concentrated in Beijing and Shanghai, two economically developed regions.
Temporal distribution of cases
Map of the regional distribution of cases
Nandu reporters further combed through the court's judgment documents and found that in the current judicial rulings on invisible overtime, the determination of the fact of invisible overtime is relatively strict. Among the 64 cases related to hidden overtime, only 12 cases were identified as overtime, and more than 80% of the cases did not support the determination of overtime.
The court's determination of the fact of overtime
From the perspective of the court's reasoning, the court generally focuses on how to determine the fact of overtime, whether the disputed act obviously occupies time and whether the employee has substantive work content.
Statistics on the reasons for determining the fact of overtime
In the cases in which the court found the fact of overtime, the judge's reasoning referred to "obviousness of the time occupied" and "substantiality of the work", that is, to determine whether the act of replying to WeChat pointed to continuous and obvious time occupation and whether it pointed to substantive work results.
Overtime is not recognized as a factual element of statistics
However, in cases where the court does not recognize the fact of overtime, the judge mainly considers five types of factors: "flexible nature of work", "inability to reflect the fact of overtime", "inability to reflect the employer's arrangement", "inability to prove continuous occupation of time", and "inability to prove the provision of substantive work". Among them, "unable to prove the continuous occupation of time" and "unable to prove the provision of substantive work" accounted for 35% and 18% respectively, and appeared the most frequently in the judge's reasoning in the judgment documents.
It can be said that the current judicial decision has taken the first step to identify "invisible overtime".
Chen Jingyuan, assistant professor of the Law School of Chinese People's University, told reporters from Nandu that the current controversy over hidden overtime cases mainly focuses on the determination of the fact of overtime, that is, what kind of identification standard the evidence provided by the employee needs to meet to prove the existence of the fact of overtime.
In the first case of hidden overtime, the Beijing No. 3 Intermediate People's Court proposed in its judgment that the "principle of substantiality of work provided" and "the principle of obviousness of occupation time" should be used as the criteria for determining the problem of hidden overtime. According to Article 9 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases, if an employee claims overtime pay, he or she shall bear the burden of proof on the existence of overtime work. This means that the employee can bear the burden of proof to claim overtime pay by proving that he or she has provided substantial work through invisible overtime and that invisible overtime has clearly taken up his or her time.
Huang Zhen, an associate professor at the City College of Zhejiang University and a researcher at the Legislative Research Institute of Zhejiang University, also told the reporter that the proposal of the "principle of providing work substance" and the "principle of the obviousness of occupancy time" reflects the initiative of the judiciary, and at the same time provides a substantive interpretation of the law, which is in line with the original intent of the law.
It is difficult to identify invisible overtime
How to protect workers' right to rest in the digital age?
In the reality that it is difficult to identify invisible overtime, how to protect employees' right to rest?
During the two sessions this year, Lu Guoquan, a member of the National Committee of the Chinese People's Political Consultative Conference (CPPCC), put forward the "Proposal on Guaranteeing Workers' Right to Offline Rest", which provides another perspective for solving the problem, that is, incorporating the rules of offline rights into the mainland's legal system of working hours. The "right to offline breaks" refers to the right of workers to refuse to communicate at work or to handle work matters through digital tools outside of statutory or agreed working hours.
Regarding the implementation of the "right to offline rest", Lv Guoquan openly talked to the media that the implementation of the right to offline rest requires organizations such as trade unions to intervene from the perspective of a third party and from the perspective of safeguarding the rights and interests of employees, and supervise in accordance with laws and regulations. He also said the process may not happen overnight.
In this regard, Chen Jingyuan told a reporter from Nandu, "If the offline right rule is placed on the employee's right to refuse offline work, it is difficult to realize it in the current workplace environment in the mainland, and it is difficult for us to expect that the worker can refuse to reply or ask the other party not to contact him during non-working hours when facing the work information of the unit or customer." ”
In view of this, Chen Jingyuan suggested that the construction of rules for offline rights should focus on the employer's obligation not to notify the employee due to work reasons within a certain period of time, so as to ensure that the employee is truly liberated from work during specific non-working hours. In addition, taking into account the sudden and temporary nature of business operations and daily work, Chen Jingyuan also suggested that the relationship between principles and exceptions should also be properly handled in the construction of the "right to offline rest". For example, the flexible space for employers to contact employees based on specific urgent and legitimate reasons is retained, and collective negotiation between employers and employees is allowed to be conducted on the specific ways to realize the offline right based on the business characteristics of the employer.
However, in Huang Zhen's view, the implementation of the provisions of the labor law is the fundamental way to protect the rights and interests of workers in the digital age. "The right to rest has been clearly stipulated in the Labor Law and the Labor Contract Law, but in reality, the failure to realize the right is a stubborn disease. The problem may not be the need for new legislation, new rights, but the strengthening of legal enforcement mechanisms so that the right to rest can be truly realized. In addition to law enforcement during the event, arbitration or justice after the fact, what is lacking now is prevention in advance, and labor compliance fills this gap, which transforms the contradiction between the employee and the employer into the contradiction between the employer's own overtime needs and compliance requirements, so that the employer's infringement not only harms the employee's right to rest, but also harms the employer's own interests, so as to play an effective preventive role. ”
In addition, Chen Jingyuan also suggested that the "working time interval" rule could be introduced with reference to EU regulations. At present, there is still room for improvement in the protection of the right to rest for traditional labor in the working time law of the mainland. "I believe that before discussing the introduction of the right to go offline, it is important to discuss whether to introduce a 'working interval' rule to ensure that workers are entitled to consecutive rest hours per day and week. "For example, the EU Working Time Directive ensures that workers are truly emancipated from their work by providing for at least 11 consecutive hours of rest between each working day and at least one continuous 24-hour rest break per week.
Written by: Intern Chen Yifan Nandu reporter Cheng Shuwen