"The more large Internet companies that implement flexible working hours, the more frequent the overtime work within the organization."
The summary table of overtime hours was placed in front of Wang Ziyuan, and some special nights after work were pieced together by a female migrant worker:
On January 22, 2020, at 0:13 a.m., I was ready to go to bed late at night, and the leader sent a WeChat message, and was arranged to publish the article, turn on the computer again, log in to the company's background to forward, and it took 6 minutes;
The next day, when I came home after a day of work, at 9:01 p.m., I was just about to take a shower, and another arrangement came, "to count the number of customers", which took 6 minutes;
On February 5, it was almost 10 o'clock in the evening, and I was asked to hold a WeChat conference call, which ended in 11 minutes;
On February 6, it was still so late, the boss asked to communicate in the group, launched a conference call at 9:23, and finally communicated until 10:41.
Wang Ziyuan is a lawyer at Beijing Jiuwen Law Firm. In the autumn of 2021, Li Xue, who was in her thirties, walked into the office, full of grievances. One of her demands is that she wants her overtime pay back. The above-mentioned overtime summary table is just a small part of Wang Ziyuan's compilation based on more than 300 pages of WeChat records, punch-in records and shift schedules.
He realized that the case was unusual. It is "very rare" to want to claim overtime pay in the name of online overtime, and it can be supported by the court in the end.
Wang Ziyuan took over the lawsuit. At that time, he did not know that the twists and turns of this labor dispute case exceeded expectations, and in the end, it was regarded by the Supreme People's Court as "the first case of invisible overtime". In the two sessions in 2024, members of the National Committee of the Chinese People's Political Consultative Conference (CPPCC) also proposed for the first time when proposing that "the right to rest offline be incorporated into the law".
Liang Meng, a labor sociology scholar and associate professor at China Agricultural University, wrote in his book Overtime: "Flexible work...... Whose interests and flexibility are reflected in this arrangement? ”
What exactly counts as overtime?
In 2019, Li Xue joined an Internet technology company in Chaoyang District, Beijing, as the head of operations. She is responsible for building the operational organizational structure, responsible for program operation, managing the content team, and responsible for the formulation and implementation of the delivery plan and business development. She also often needs to keep an eye on the business group, provide timely feedback and communication, and write official account articles.
Almost a year later, she had a conflict with her boss, reported to the police, and was later fired by the company. Before she left her job, she took two weeks in sick due to tonsil inflammation. "She told me that [it was] because she was working too hard overtime, she was tired, and she couldn't help it." Wang Ziyuan said.
Thinking about her state during work, Li Xue decided to apply for labor arbitration. She advocated that the company handled work during non-working hours, and that the total number of overtime hours in various forms amounted to 595.8 hours, and the company should pay nearly 200,000 yuan in overtime pay. The request was denied.
Angry, Li Xue found Wang Ziyuan.
After careful combing, Wang Ziyuan believes that overtime is a fact, but the traditional overtime is in the workplace, there are attendance records, the evidence is sufficient, and the controversy is not big; However, this is "online overtime", and he searched for cases and did not find any precedents to support this view.
It's a bit hard.
Wang Ziyuan began to reorganize Li Xue's work records. Eventually, the evidentiary documents grew thicker and thicker. They made a table detailing the type of overtime, the date, the start and end time of the overtime, the duration of the overtime, and the number of pages of the corresponding evidence. For example, in an audio conference outside of work, everyone is asked to go online and take a screenshot of their voice start and end times to calculate the overtime hours.
Even so, at the first instance, the defendant still disputed this. According to the verdict, the defendant company said that Li Xue was the head of the operation department, and that calling her after work by other employees was not considered overtime. Regarding weekends and statutory holidays on duty, there are customers and other employees of the company in the WeChat group, and customers ask questions in the group, but they do not need everyone to answer customer questions, only reply to the information that customers need, which does not belong to overtime.
"They did not deny the objective facts, but the other party believed that these behaviors did not reach the level of labor (overtime)." Wang Ziyuan said that the law does not clearly stipulate what constitutes overtime and what does not, and the boundary is very blurred. The judge judges through daily life experience and normal rational analysis, whether this is communication or work.
In Wang Ziyuan's view, it is indeed difficult to determine that substantive labor is provided when the leader sends a work arrangement to complete the work on Monday and reply "good received", but if you ask you to write an article on the weekend, it takes an hour to complete it, "I think it is a substantive work." ”
Sociologist Liang Meng further asked, even if it only takes 30 seconds to reply to a customer message, "Do I have the right to refuse?" Will the employer penalize me if I refuse? If you punish me or have a negative impact on the performance appraisal of my work, it is an implicit internal rule. ”
However, the first-instance verdict was issued, and Li Xue lost the case. In his ruling, the judge emphasized that the party's claim for overtime pay was not supported because the party and the company "agreed in the employment contract to implement an irregular working hours system".
Irregular working hours
The Ministry of Human Resources and Social Security and the Supreme People's Court jointly released the first batch of typical cases of labor and personnel disputes. Among them, the detailed definition of "irregular working hours" is a working hours system adopted for workers who cannot be measured by standard working hours or need to work flexibly due to the relationship between production characteristics, special needs of work or the scope of duties.
A person working overtime in an office building in Beijing's East Third Ring Road. This kind of scenario is very common in major Internet companies. (@视觉中国 Fig.)
In real life, this is often referred to as "flexible work". Liang Meng is very familiar with this term.
In 2012, she was studying for a Ph.D. at Peking University, doing research on the sociology of labor. Her younger brothers and sisters entered Internet companies in batches, and many Internet companies were thriving at that time, preparing to go public. Its employees work brightly and earn well.
She decided to use Internet companies as a research field, and interned at a large Internet company (pseudonym "Yiwan Company") for 4 months, writing 79 field logs. And "flexible work" is what she observes as a daily routine for Internet employees.
"We don't clock in, and flexible working is not a fantasy, there will be a core time." Liang Meng works in the product department, and the core hours are 10 a.m. to 6 p.m., "The programmer is even later, from 11 a.m. to 8 p.m." ”
Towards the end of her internship, Yiwan Company began to promote the "wolf culture", and then adjusted the management model.
The first is to turn work into "transparent and monitored labor" through performance appraisal OKRs (Objectives and Key Results). Compared with the previous KPIs that are generally assessed twice a year, this assessment method is granular to the month or even the day. Colleagues and leaders can see the OKRs you fill in, which is a hint, "You need to work harder to collaborate with other colleagues." The goals are broken down in more detail, and the time pressure will be greater and clearer. ”
On the other hand, Internet companies work as project teams, and as the market becomes more and more competitive, the time given to project development is getting shorter and shorter. If you don't work overtime, it will not only affect your own work, but also affect the entire project and even the customer's benefits. Liang Meng said that this way of working makes employees "have to respond to messages and have frequent meetings during non-working hours."
It is precisely because of "flexibility" that no one knows whether you work 8 hours or 12 hours, and only cares about whether the performance is completed or not. Every year when performance increases, working hours increase. I have a friend who is pregnant, and she takes a taxi home at 9 p.m., and she can still receive a call from the manager in the car and have an online meeting. "Later, it became more and more crazy, and everyone thought that this was necessary, and [overtime] became an implicit institutionalization."
In March 2022, Wang Ziyuan and Li Xue received the first-instance verdict, and they need to decide whether to appeal. The first instance revolves around the litigation claims, while the focus of the second instance is different, "We must point out that there are errors in the first-instance judgment, and present evidence and debate in combination with the issues, and only in this way can we make a change in the judgment." ”
It was precisely from the "irregular work system" that Wang Ziyuan found a turning point.
Violation of borders
What is strange is that Li Xue's contract not only writes that the working hours are 9 to 6, but also that the irregular work system is written.
Wang Ziyuan believes that the first-instance judgment is obviously wrong in the face of existing laws and regulations. In the above-mentioned labor and personnel dispute cases, the Supreme People's Court stated that according to the Measures for the Examination and Approval of the Implementation of the Irregular Working Hours System and the Comprehensive Calculation of Working Hours System by Enterprises, employers implement the irregular working hours system for employees, and there are strict requirements for the applicable subjects and applicable procedures, such as senior management personnel, field staff, sales personnel, some on-duty personnel and other employees whose work cannot be measured according to standard working hours. Moreover, this must be approved by the human resources and social security department before the employer can implement the irregular working hours system, otherwise it cannot be implemented.
In the second-instance trial, regarding the overtime work, the judge carefully asked the company whether the irregular working hours system had been approved.
The defendant replied, "No."
At the beginning of the birth of the flexible work system, radiating the light of humanity was a manifestation of the "dream, freedom, and equality" culture of Chinese Internet companies, but now it has become an important reason for breaking the boundaries between work and life.
After taking a closer look at Internet companies, Liang Meng came to a slightly ironic conclusion that sometimes it is the large Internet companies that implement flexible working hours that work more frequently within the organization.
In management, boundary theory argues that there are clear boundaries between three different areas: work, life and leisure. However, the flexible working hours make the boundaries themselves blurred. Once work permeates the living space, breaking boundaries without any moral and institutional pressure, "makes it easier for work to encroach on your time for life and leisure, and no one thinks it should be".
The pandemic hastened everything. Liang Meng took herself as an example, during the epidemic, she used a lot of online meetings and other tools, and the convenience of online work increased exponentially, which also provided a lot of convenience for breaking through the boundaries between work and life.
It seems that the flexible working system will be regarded as a resource by migrant workers, who can flexibly arrange work and life, but it is precisely this resource that creates an opportunity to improve the penetration of work into life, "this resource is a double-edged sword, and most people do not see both sides".
Final question
Wang Ziyuan's Li Xue labor dispute case won the second instance. In the official account of the Beijing No. 3 People's Court, Zheng Jizhe, the judge of the second instance, mentioned that the sentence was changed because a holiday duty schedule in the evidence caught his attention.
In the duty schedule, not only the time schedule is clear, but also there are standardized requirements for the work content, such as "reply to a sentence in the group first (within 30 seconds) when receiving user needs" and "process the article (complete within 2 minutes)". As the head of operations, Li Xue has more than 50 working communities, and she often schedules shifts on weekends and holidays.
He realized that in the context of the platform economy, the tools for workers to provide labor have changed from physical to digital, and the problem of "virtualization" and "invisibility" of overtime has also arisen, but "invisible overtime" is not a clear definition in the law, and no court has made relevant rulings in previous judgments.
Therefore, after several studies, he proposed that the criteria for "invisible overtime" are "substantial labor" and "obvious occupation of time". In the end, the judgment confirmed Li Xue's labor and ordered the company to pay Li Xue 30,000 yuan in overtime pay.
It's an uplifting ending, but it's also the result of physical and mental exhaustion.
From labor arbitration to the first and second instance, Li Xue took more than two years. She eventually declined the invitation for an interview.
"Maybe from the perspective of the legal profession and the media, this is a good thing, but for her, the impact is not good." Wang Ziyuan explained that if you stand in the perspective of the employer and are reluctant to hire such employees, you will feel that such employees are not easy to manage.
In the past two years, the growth of some Internet companies has slowed down, and they have even begun to abandon the use of OKRs to evaluate employees. Liang Meng visited his classmates who worked on the Internet back then, and he had already foreseen his end: he was laid off because of his age.
At the end of the book Overtime, Liang Meng wrote, "Why did those Internet companies that were born out of nowhere fall like meteors in just a few months, leaving only angry consumers, dazed employees, and material waste scattered in the corners of the city?" ”
All this is enough to make people reflect, "Is it necessary to be so fast?" ”