These two days
Topic "5000 yuan salary 46 work groups"
Detonated the hot search
Topped the hot search lists of Weibo and Baidu
The topic of "exploding" a large number of empathetic netizens, many netizens said that they have more work groups
If you leave the group, you will have to retire for a long time
Poor worker
After hours, during holidays
Also bombarded with work group messages
Make people unconsciously "go to class everywhere"
This kind of "invisible overtime" also makes our work and life without boundaries, in fact, it reflects the problem that the overtime system of employers needs to be standardized
Overtime is possible ≠ unlimited overtime
"Eight hours a day, five days a week"
This is the "standard working hours" in the sense of mainland law
In this case
Overtime is not only paid for overtime
There is also a cap of "3 hours per day, 36 hours per month".
on this
Beijing Haidian District People's Court
Judge Dong Hongchen introduced
The labor law of the mainland stipulates that——
■ Except for natural disasters, accidents and other situations that threaten the life, health and property safety of employees or affect the public interest, etc., which require urgent treatment, the employer shall generally not arrange overtime for employees to work overtime for more than one hour per day;
■ If it is necessary to extend the working hours due to special reasons, the extended working hours shall not exceed 3 hours per day but shall not exceed 36 hours per month under the condition of ensuring the health of the workers.
■ In order to ensure the realization of employees' right to rest and vacation, the Labor Law clearly stipulates the upper limit of extended working hours, and 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.
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.
The "overtime approval system" ≠ does not require overtime pay
If the company and the employee agree that overtime must be approved before it is approved, is overtime without the company's approval still considered "overtime"?
Here's an example:
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.
In this regard, Judge Dong Hongchen introduced:
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.
"On duty" ≠ are not subject to overtime pay
However, many tasks are also difficult to complete at a fixed time, so some companies require employees to be "on duty" for long hours.
For example, if a security guard works 24 hours a day, or a media reporter works 12 hours a day, all of which exceed the time limit for overtime work stipulated by law, how can overtime pay be calculated?
Judge Dong Hongchen introduced: Duty usually refers to the employer's arrangement of workers to engage in duty tasks unrelated to their own work due to safety, fire protection, holidays and other needs, or the employer arranges workers to engage in duty tasks related to their own work.
The current law does not clearly stipulate whether and according to the standard of payment should be paid for on-duty duty, and the on-duty allowance is usually paid to the employee through the rules and regulations of the employer or the agreement between the employer and the employee.
However, if the employee can take a break during the shift period, the employee's claim for overtime pay will not be supported.
"Flexible working" ≠ work from anywhere
Nowadays, in order to improve efficiency, many Internet companies have also proposed a "flexible work system" to allow employees to freely control their working hours.
The flexible working system involves the relevant provisions of the Labor Law of the mainland on the "special working hours system", that is, the "irregular working hours system" and the "comprehensive calculation of working hours working hours system".
Among them, the "comprehensive calculation of working hours system", which has not changed much for employees, the total amount of working hours is the same, but the schedule is more flexible, from "eight hours a day", to weekly, monthly, quarterly, and annual work.
On the other hand, the "irregular working hours system" is relatively complex, and the provisions on the total number of working hours and overtime pay are relatively vague.
In order to prevent companies from abusing the "irregular working hours system", the law stipulates that, under normal circumstances, enterprises that want to implement the "irregular working hours system" must first obtain the approval of the labor administrative department, and only for specific positions such as senior executives, field work, sales, long-distance transportation, taxi drivers, etc., can apply.
In this regard, Zhao Jingwu, an associate professor at the Law School of Beijing University of Aeronautics and Astronautics, reminded that if the labor contract does not have a clear working hour clause, it is possible to confirm the working hours with the employer in the follow-up, and give priority to retaining the internal management rules with the official seal, or the chat record of the employer's senior management informing them of the specific working hours.
The root cause of these phenomena lies in the lag and imperfection of the current laws and regulations, and for the first time in this year's "two supremes" reports, such as "invisible overtime" and "offline rest rights", the "invisible overtime" labor dispute case was also selected as the "Top Ten Cases in 2023 to Promote the Rule of Law in the New Era", which is the first case in the country to clarify the issue of "invisible overtime" in the judgment document, and for the first time to put forward relevant identification standards for the use of WeChat and other social media for invisible overtime, the details can be seen in the first case in the country! The company was sentenced to pay 30,000 yuan!
In any case, the simple demands of the laborers to have income and the laborers to have a rest should be seen that the last "May Day" International Labor Day is coming, and Xiaoguan is here
I wish every worker a happy holiday!
(I wish you all no more overtime today.)
）
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▌Source of this article | Civilization New Observation (ID: wmxgc2015) is synthesized from Labor Daily, CCTV, Rule of Law Daily, Youth Zhejiang, and Weibo netizen comments.
▌Edit | To the truth
▌Audit| Qin Li, Chen Xiaoyun, Yang Jun