Recently, the topic of "overtime" has aroused heated discussions among netizens.
Similar to whether it is illegal to refuse to work overtime, and whether returning to work after work is considered overtime, etc., have aroused everyone's attention.
In daily work, it is easy for enterprises to step on the pit in the setting of working hours and the calculation of overtime wages, so HR must pay attention! Keep up with the latest situation, make timely adjustments, and avoid possible risks.
Overtime is illegal!
A number of companies have already been fined
In fact, since the Ministry of Human Resources and Social Security and the Supreme People's Court released typical cases of overtime, local human resources and social security bureaus have also begun to focus on investigating and rectifying the problem of overtime.
Among them, the Beijing Municipal Bureau of Human Resources and Social Security has announced that two companies have been fined for illegally extending the working hours of workers, and one of the companies has been fined up to 17,000 yuan.
1. From March to July 2021, the company arranged for 14 workers, including Li X and Liu XX, to work more than 36 hours per month, and did not guarantee that the workers had at least one day off per week.
On November 5, 2021, the Xicheng District Human Resources and Social Security Bureau made an administrative penalty decision in accordance with the law, giving a warning to the company for illegally extending the working hours of employees, fining it 7,000 yuan, and ordering the company to stop illegally extending the working hours of employees.
2. The Yingbin branch of a company implements a standard working hour system, and from April to October 2021, the company arranged 44 workers such as He XX and Yang X to extend their working hours by more than 36 hours per month.
On February 16, 2022, the Huairou District Human Resources and Social Security Bureau made an administrative penalty decision in accordance with the law, giving a warning to the company for illegally extending the working hours of employees, fining it 17,600 yuan, and ordering the company to stop illegally extending the working hours of employees.
What are the penalties for overtime?
According to the Labor Law, due to the needs of production and operation, the employer may extend the working hours after consultation with the labor union and the workers, which shall generally not exceed one hour per day; Where it is necessary to extend the working hours due to special reasons, the extended working hours shall not exceed three hours per day, but shall not exceed thirty-six hours per month, under the condition of ensuring the health of the workers.
According to the Regulations on the Supervision of Labor Security, if an employer extends the working hours of an employee in violation of labor security laws, regulations or rules, the labor and social security administrative department shall give a warning, order it to make corrections within a specified period of time, and may impose a fine of not less than RMB 100 but not more than RMB 500 per person who has been violated.
If an employee encounters overtime work, he or she can report the complaint through the 12333 hotline, the on-site reporting and complaint window, email, the Internet and other channels.
Is it reasonable to have a single day off on weekends?
Article 3 of the Provisions of the State Council on the Working Hours of Employees stipulates that "employees work 8 hours a day and 40 hours a week. ”
Article 38 of the Labor Law of the People's Republic of China stipulates that "an employer shall ensure that an employee has at least one day off per week." ”
Article 41 of the Labor Law of the People's Republic of China stipulates that: "Due to the needs of production and operation, an employer may extend its working hours after consultation with the labor union and the workers, and generally shall not exceed one hour per day; If it is necessary to extend the working hours due to special reasons, the extended working hours shall not exceed three hours per day, but shall not exceed thirty-six hours per month, under the condition of ensuring the health of the workers.
According to the above three laws, there are the following three situations, and it is completely legal to take a single day off.
Scenario 1:
The real-time standard working hours system of the enterprise ensures that employees can have at least one day off per week, and the working hours are within 40 hours per week, which is a legal behavior.
Scenario 2:
It is legal for enterprises to ensure that employees can take at least one day off per week, extend their working hours by no more than 36 hours per month after negotiation, and pay overtime pay in accordance with the law.
Scenario 3:
Other work and rest methods such as the real-time irregular working hours system and the comprehensive calculation of working hours system.
Once the maximum overtime standard is exceeded, the company will break the law. For example, the hotly discussed "996" refers to going to work at 9 o'clock in the morning and leaving work at 9 o'clock in the evening, working a total of more than 10 hours, and working 6 days a week, working more than 60 hours a week, and overtime hours seriously exceed the legal standard.
At the same time, it is recommended that enterprises that implement single days off can shorten the fixed working hours per day to ensure that the working hours do not exceed 40 hours per week, so as to avoid paying overtime pay.
Does the lunch break count towards working hours?
Whether the lunch break is included in the working hours shall be clearly notified by the employer in the form of rules and regulations or in the labor contract when the employee joins the company, which is nothing more than two situations: one is that the lunch time is included in the working time, and the other is that the lunch time is not included in the working time.
For employers that explicitly stipulate that lunch breaks are included in working hours, employees can flexibly arrange this period, and if they do need to work, employees can properly coordinate lunch time and working hours.
For employers that clearly stipulate that lunch breaks are not counted as working hours, in addition to fulfilling the obligation to inform employees in the form of rules and regulations, they also need to have the ability of employees to use this period freely, rather than being on standby or temporarily arranging work tasks.
If the employer clearly informs the employee that the lunch break is not included in the working hours, but arbitrarily occupies the employee's lunch time, leaving the employee in a state of standby or actual work, then the lunch time shall be deemed to be working time.
Answers to frequently asked overtime questions
1. What is overtime?
According to Article 36 of the Labor Law and the Provisions of the State Council on the Working Hours of Employees, the mainland implements a working hour system in which the daily working hours of workers do not exceed 8 hours and the average weekly working hours do not exceed 40 hours, that is, the standard working hours system.
Overtime is constituted if the working hours are exceeded, or work is arranged on a rest day or statutory holiday.
2. How to calculate overtime wages?
Article 13 of the Interim Provisions on Payment of Wages stipulates that if an employer arranges an employee to work longer hours beyond the statutory standard working hours in accordance with the law, the employer shall pay wages at a rate not lower than 150% of the employee's hourly wage. If the employer arranges for the employee to work on a rest day in accordance with the law, but cannot arrange a compensatory break, the employer shall pay the employee 200% of the daily or hourly wage; If the employer arranges for the employee to work on statutory holidays and holidays in accordance with the law, the employer shall pay the employee 300% of the above-mentioned wage standard.
3. If the company has not approved, is it considered overtime?
There are 3 criteria for judging whether to work overtime:
- Overtime is required by the employer;
- The content of overtime reflects the will of the employer;
- Outside of standard working hours.
If the above conditions are met, even if the company fails to perform the approval procedures for overtime, it will not affect the determination of the fact that "the employer arranges" overtime.
If the employee voluntarily requests overtime work without the approval of the employer, the employer may not pay the overtime wage.
4. Can workers refuse to work overtime?
Article 31 of the Labor Contract Law of the People's Republic of China stipulates that employers shall strictly enforce labor quota standards and shall not force or covertly compel employees to work overtime.
The employer and the employee can change the labor contract through consultation, but it is illegal for the employer to increase the work task without reaching an agreement with the employee.
5. Can overtime pay replace overtime pay?
The law does not require overtime allowance, and employers can decide whether to set up and implement an overtime allowance system according to the characteristics and needs of the enterprise. Overtime wages are different from those set by law for employers, and if an employee works overtime, the employer shall calculate and pay overtime wages according to the actual overtime hours (such as overtime work on weekdays, weekends, and statutory holidays). It can be seen that the payment of overtime allowance by the employer does not necessarily exempt it from the statutory obligation to pay overtime wages.
However, in employment practice, the principle of "more than refund, less should be compensated" is generally implemented, and when the actual overtime wage is higher than the overtime allowance, the employer shall pay the overtime salary according to the actual amount of overtime salary. When the actual overtime pay is lower than the overtime allowance standard, the employer may pay the overtime allowance standard according to the internal regulations of the enterprise.
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Source: 51 Social Security Network