On April 28, the topic "5,000 yuan salary and 46 work groups" detonated the hot search and topped the hot search list of Weibo and Baidu.
For the first time in this year's "two supremes" report, such terms as "invisible overtime" and "offline rest rights" appeared. The "invisible overtime" labor dispute case was also selected as one of the "Top 10 Cases in 2023 for Promoting the Rule of Law in the New Era", which is the first case in the country to clarify the issue of "invisible overtime" in a judgment document, and for the first time put forward relevant identification standards for the use of social media such as WeChat for invisible overtime.
"Invisible overtime" means that you have to complete work tasks during breaks, and use the Internet and communication software to work overtime anytime and anywhere. This kind of overtime completely mixes working time with personal time, and cannot enjoy overtime pay, so that employees are unconsciously "overtime". "A salary of 5,000 yuan and 46 work groups" reflects the problem that the overtime system of employers needs to be standardized.
The "overtime approval system" ≠ does not require overtime pay
Mr. Zhang is a back-end development engineer at a network company, and he agreed with the company to implement a standard working hours system. The two parties agreed in the contract that "if the employee needs to work overtime, he shall fill in the overtime application form and obtain the approval of the company, and the failure to perform the overtime approval procedures shall not be regarded as overtime". But every Friday afternoon after work, Zhang's leader will ask everyone in the department to attend the department summary meeting, which is about 1 hour each time. Later, Zhang went through the litigation procedure and demanded that the company pay overtime pay. The court held that the WeChat chat records submitted by Zhang could prove that he was working overtime under the company's arrangement, and that he did not initiate it on his own initiative. Although the company defended with the "overtime approval system", it could not deny the fact that Zhang's overtime was arranged by the company. Mr. Zhang was arranged by the company to provide overtime labor, and the company should pay overtime pay.
Dong Hongchen, a judge of the Haidian District People's Court in Beijing, told reporters that in practice, the "overtime approval system" is a defense often raised by some employers who do not agree to pay overtime pay. According to Article 44 of the Labor Law of the People's Republic of China, if an employer arranges an employee to work overtime, it shall pay overtime pay. Therefore, even if the employee works overtime without the approval procedure, if the employee can provide evidence to prove that the overtime work was arranged by the employer, it can still be deemed to be overtime, and the employer should pay overtime pay.
Dong Hongchen said that at present, employers arrange overtime work for workers to work overtime, which can be divided into "institutional overtime" and "directive overtime". "Institutional overtime" means that the working hours set by the employer themselves exceed the statutory working hours, in which case, the employee does not need to provide separate evidence for the overtime hours. "Mandatory overtime" means that the employer clearly notifies the employee to work overtime, the employee works overtime based on the arrangement of the employer or department head, and the employee's direct leader or department leader exercises the right to manage the employment of the employee on behalf of the employer, which is an act of duty, and the above-mentioned arrangement can also be recognized as overtime arranged by the employer, and the employee does not need to file a separate application.
"It must be pointed out that the original intention of the design of the overtime approval system is to encourage employers to standardize overtime management, control operating costs, and protect the legitimate rights and interests of employees in accordance with the law, but some employers regard the overtime approval system as a threshold or even an obstacle to maliciously damage the legitimate rights and interests of employees, and such behavior will bear legal responsibility in accordance with the law." Dong Hongchen said.
Scheduling overtime in excess of the legal limit: Illegal
Since joining the company, a technology company has arranged for Wang to work 8 hours a day and 6 days a week. The company's "Employee Handbook" stipulates that employees should obey the company's arrangements and provide labor according to the company's requirements, and refusal to implement the work arrangement is regarded as a serious violation of labor discipline, and the company may terminate the labor contract.
One day, Wang refused the company's weekend overtime arrangement due to physical discomfort, and the company terminated the labor contract with Wang on the grounds that he had seriously violated the rules and regulations. Later, Wang demanded that the company pay compensation for the illegal termination of the labor contract through litigation procedures. After trial, the court ordered the company to pay Wang compensation for the illegal termination of the labor contract.
The Labor Law of the People's Republic of China stipulates that, except in the event of natural disasters or accidents that threaten the life, health and property safety of the employee or affect the public interest, the employer shall not arrange for the employee to work overtime for more than one hour per day, and if it is necessary to extend the working hours for special reasons, the extended working hours shall not exceed three hours per day but not more than 36 hours per month under the condition of ensuring the health of the employee. "A technology company's arrangement of Wang's work time exceeds the upper limit of overtime hours prescribed by law, which is an illegal arrangement of overtime, and Wang's refusal to work overtime is an act of protecting his legitimate rights and interests in accordance with the law, and the company believes that Wang's violation of discipline obviously lacks basis and cannot be supported. Dong Hongchen said.
It is understood that in order to ensure the realization of the right of workers to rest and vacation, the Labor Law clearly stipulates the upper limit of extended working hours, and at the same time stipulates that if an employer illegally extends the working hours of an employee, the labor administrative department shall give a warning, order it to make corrections within a time limit, and may impose a fine. Since August 2021, local human resources and social security departments have also carried out centralized investigation and rectification of the problem of overtime, and ordered relevant units to stop illegal acts and imposed fines. Although some employers have paid their employees overtime in full, it is illegal for an employer to arrange for an employee to work overtime in excess of the statutory overtime limit, regardless of whether the employee agrees to work overtime or not.
There is an essential difference between "on-duty" and "overtime".
Mr. Han is a kindergarten teacher who usually works 8 hours a day, 5 days a week. Based on the needs of parents, the kindergarten will arrange a teacher to work every weekend to take care of the children in the same class. In January 2023, Han resigned, and he demanded that the kindergarten pay overtime pay on rest days through litigation procedures. The court held that although the kindergarten arranged for Han to be "on duty" on weekends, the nature, work content, working hours and labor intensity of Han's work during the duty period were no different from those during the normal work period, so it was determined that Han worked overtime on rest days in accordance with the law, and ordered the kindergarten to pay Han overtime pay on rest days during his employment.
Dong Hongchen told reporters that the current law does not clearly stipulate whether and according to what standard the duty should be paid, and the duty allowance is usually paid to the worker through the rules and regulations of the employer or the way agreed with the worker. In this case, although the kindergarten's arrangement for Han was called "on duty", the content of Han's work during the shift was the same as the nature of his own work. The kindergarten combines all the children who come to the kindergarten on weekends into a class management, and Han's work intensity is comparable to that of normal work. Han's weekend arrival is actually overtime, and the kindergarten should pay overtime pay on rest days.
The judge reminded that the difference between "on-duty" and "overtime" is only one word, and both are in addition to normal working hours, and the employee is engaged in additional work based on the employer's arrangement, but there is still an essential difference between the two, and the employer shall not arrange the employee to work overtime in the name of "on-duty". Duty usually refers to the situation where the employer arranges the employee to engage in duty tasks unrelated to his or her own work due to safety, fire protection, holidays, etc., or the employer arranges the employee to engage in duty tasks related to his or her own work, but the employee can take a break during the duty period, and the employee's claim for overtime pay will not be supported.