#The country’s first case of invisible overtime clearly stated in the judgment document# has become a hot search topic. On January 23, at the second session of the 16th Beijing Municipal People’s Congress, Kou Fang, President of the Beijing Higher People’s Court, delivered a work report. Kou Fang mentioned that in 2023, Beijing courts focused on the protection of workers' rights and interests, concluded 41,526 labor dispute cases, and protected the rights and interests of workers in new employment forms such as courier boys in accordance with the law. In response to the phenomenon of "invisible overtime" in the Internet age, WeChat will be used after work to Substantial labor is recognized as overtime work in accordance with the law, and workers' "right to offline rest" is guaranteed. Details >>>
Have you ever encountered "invisible overtime"? How much do you know about overtime? Quick overview of this article >>>
The popularity of online and network offices has caused many workers to lose the obvious difference between commuting and get off work. . Picture/ic photo
What practices are "invisible overtime", have you ever encountered it?
"Invisible overtime" means that during rest time, in order to complete work tasks, you must work overtime at home anytime and anywhere. This kind of overtime completely mixes working time with personal time, and does not allow you to enjoy overtime pay. This kind of overtime work is very hidden. Many people in the workplace even do not realize that they are working overtime, and unknowingly they are "being worked overtime". .
These seemingly ordinary practices are actually "invisible overtime":
(1) Arrange team building activities on weekends.
(2) Do not turn off your mobile phone during breaks! Keep the phone open.
(3) Do not shut down your phone for 24 hours and reply within 10 minutes after receiving the message.
(4) You can’t leave even if the leader doesn’t leave.
(5) meetings are held in the evening, which is euphemistically called training.
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In fact, the phenomenon of "invisible overtime" is not a new problem. In the context of the digital age, the new phenomenon of “invisible overtime” is spreading.
What issues should we pay attention to regarding overtime and overtime pay?
There are many employees who often need to work overtime due to work reasons. Regarding overtime, you must understand these 10 questions.
1. Is there a time limit for overtime work?
Article 41 of the "Labor Law of the People's Republic of China" stipulates that due to production and operation needs, the employer may extend working hours after consultation with the trade union and workers. Generally, the working hours shall not exceed 1 hour per day. hours; if working hours need to be extended due to special reasons, the extended working hours shall not exceed 3 hours per day while ensuring the health of the workers, but shall not exceed 36 hours per month.
At the same time, Article 42 of the Law stipulates that under any of the following circumstances, extension of working hours is not subject to the restrictions of Article 41 of this Law: (1) Natural disasters, accidents, or other reasons that threaten labor The life, health and property safety of the workers require emergency treatment; (2) production equipment, transportation lines, and public facilities malfunction, affecting production and public interests, and must be repaired in a timely manner; (3) other situations stipulated by laws and administrative regulations.
2. If the company has not approved it, is it considered overtime?
There are three criteria for judging whether to work overtime:
1. Overtime is required by the employer;
2. The content of overtime reflects the will of the employer;
3. It is outside the standard working hours.
If the above conditions are met, even if the company fails to complete the overtime approval procedures, it will not affect the determination of the fact that overtime is "arranged by the employer".
If an employee actively requests to work overtime without approval from the employer, the employer may not pay overtime wages.
3. What evidence can be used as proof of overtime?
Workers should pay attention to collecting the following evidence at work: labor contracts or rules and regulations containing overtime content; attendance sheets stamped by the unit; time, location, and meeting content records of overtime meetings; Overtime notices, such as WeChat groups, QQ, email notifications, etc.; air tickets, tickets, invoices, etc. for business trips on weekends and holidays; salary slips with records of overtime pay; records of reporting work progress to superiors during overtime; proof of the existence of overtime work Records and work results; witness statements between colleagues and co-workers, etc.
4. How to calculate overtime wages?
Normal working time wages are the basis for calculating overtime wages. It refers to the labor remuneration that should be obtained for providing normal labor within legal normal working hours.Including: ① basic salary (base salary); ② technical allowance; ③ position allowance; ④ price subsidy; ⑤ perfect attendance award.
Article 44 of the "Labor Law of the People's Republic of China" lists several situations in which the employer shall pay wages higher than the worker's normal working hours:
▶If the worker is arranged to extend his or her working hours, the employer shall pay no less than 150% of the wage. % of wages and remuneration;
▶If workers are arranged to work on rest days and compensatory leave cannot be arranged, a wage remuneration of no less than 200% of wages shall be paid;
▶If workers are arranged to work on statutory holidays, no less than 300% of wages shall be paid % of salary remuneration.
5. Can compensated days off replace overtime wages?
Generally speaking, only overtime work on rest days (usually Saturdays and Sundays) can be arranged for compensated days off (if the days cannot be compensated, overtime wages must be paid). Overtime wages must still be paid for extended overtime work and overtime work on legal holidays.
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6. Can workers refuse forced overtime work?
Article 31 of the Labor Contract Law of the People's Republic of China stipulates that employers shall strictly implement labor quota standards and shall not force or force workers in disguised form to work overtime. If an employer arranges overtime work, it shall pay overtime pay to workers in accordance with relevant national regulations.
The employer can change the labor contract by consensus with the employee, but it is illegal for the employer to increase the work tasks without consensus with the employee.
7. Is there overtime pay during holidays under the flexible working system?
The special working hour system currently implemented in our country is the comprehensive calculated working hour working system and the irregular working time system. The irregular work system is commonly known as the flexible working system. Not all positions can implement irregular working hours, and the implementation of irregular working hours requires approval from the labor administration department.
Employees who have been approved to implement the irregular working system cannot require the employer to pay overtime pay for overtime work on weekdays and overtime pay for weekend work because their commuting hours are not fixed and the employer does not impose attendance requirements. However, if you work on statutory holidays, you can require the employer to pay overtime pay for statutory holidays.
8. If the employer is unwilling to work overtime, can the employer deduct bonuses?
Article 31 of the "Labor Contract Law of the People's Republic of China" stipulates that the employer shall strictly implement the labor quota standards and shall not force or force workers in disguised form to work overtime. If an employer arranges overtime work, it shall pay overtime pay to workers in accordance with relevant national regulations.
Article 41 of the "Labor Law of the People's Republic of China" stipulates that due to production and operation needs, the employer may extend working hours after consultation with the trade union and workers, generally no more than 1 hour per day.
Employers cannot unilaterally decide whether to require employees to work overtime. Workers have the right to refuse to work overtime beyond the legal hours, and the employer has no right to withhold bonuses on the grounds that workers do not work overtime.
9. Is there a statute of limitations for applying for overtime pay?
Article 27 of the "Labor Dispute Mediation and Arbitration Law of the People's Republic of China" stipulates that the statute of limitations for applying for arbitration of labor disputes is one year. The arbitration limitation period is calculated from the date when the parties knew or should have known that their rights had been infringed.
Overtime pay disputes fall within the category of labor remuneration. If a dispute arises due to arrears of labor remuneration during the existence of the labor relationship, the employee's application for arbitration is not subject to the limitation period for arbitration stipulated in paragraph 1 of this article; however, if the labor relationship is terminated, the application must be made within one year from the date of termination of the labor relationship.
Therefore, during the existence of the labor relationship, there is no time limit for applying for arbitration. If the employee has resigned, there is a one-year statute of limitations for applying for arbitration.
10. What legal responsibilities does the employer bear if it illegally extends working hours?
If an employer illegally arranges workers to work overtime, it shall bear corresponding legal responsibilities. Legal responsibilities are divided into administrative responsibilities and civil responsibilities. Article 25 of the "Labor Security Supervision Regulations" Article 1 stipulates the administrative liability of employers for illegally extending working hours, that is, the labor and social security department can impose a fine on the employer of not less than 100 yuan but not more than 500 yuan per employee.
Article 85 of the "Labor Contract Law of the People's Republic of China" stipulates the civil liability and administrative liability of an employer that arranges overtime work and fails to pay overtime pay. That is, the labor administrative department shall order the employer to pay overtime pay within a time limit. If it fails to pay overtime pay within the time limit, it shall be ordered to do so. The employer shall pay additional compensation to the employee at a standard of not less than 50% but not more than 100% of the amount payable. According to the above regulations, when the employer fails to pay overtime pay, the employee can apply to the labor administration department to require the employer to fulfill its obligation to pay overtime pay. At the same time, the employer can also request the employer to pay additional compensation. These regulations provide labor benefits to a certain extent. Provides guarantee of rights and remedies.
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How to define "offline rights"?
In 2016, France took the lead in introducing the concept of employees' offline rights in the Labor Code, which is "the right to disconnect from the work network and thus not accept the employer's instructions and provide work." EU 2021 " Article 2 of the draft directive "Proposed Text of the Right to Offline Directive" stipulates that "offline" means "not engaging in work-related activities or communications directly or indirectly through digital tools outside of working hours."
With the rapid development of my country's Internet and digital technology, the use of online media such as WeChat, email, QQ, and DingTalk for information communication in the workplace is very popular. Employers often use the above-mentioned software to make work contacts, issue instructions, and promote advertisements. Nowadays, working from home and online are becoming more and more common, which has led to an increase in workers’ working hours and challenges to their right to rest and health protection.
The so-called "offline right" means that, except by law or agreement, workers have the right to refuse to use digital tools to contact work or handle work-related matters during non-working hours, and shall not suffer disadvantageous treatment as a result, thereby further protecting their rest time. Integrity and continuity, promoting work-life balance. The right to offline is a derivative right, derived from the worker's right to rest. Its core mainly includes: first, "offline", which ensures that workers are not disturbed by the employer outside working hours and receive work instructions from the employer during non-working hours. There is no need to respond; secondly, the employee will not be disadvantaged by exercising this right, and the employer will not impose adverse penalties on the employee. The introduction of "offline rights" is conducive to solving the common problem of workers working from home working too long, and is conducive to controlling workers' working hours, promoting work-life balance, and protecting workers' rights to rest and safety and health. Safeguard the basic rights of workers.
More reading: ""Invisible overtime" is included in the report of the Beijing High Court, supporting the "right to offline rest" | Quick Comment"
Sources: Beijing News, CCTV Finance, Fuzhou Federation of Trade Unions, Jiangxi Human Resources and Social Security, Huangshi Judiciary , Jinfeng Court, Youth Zhejiang Public Account, National Laws and Regulations Database
Editor Ai Zheng Proofreading Fu Chunmin
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