How to calculate the overtime pay during the Spring Festival? Can workers refuse to work overtime? Here comes the expert explanation →
The Spring Festival holiday is approaching, and many people choose to welcome the Chinese New Year at work under the initiative of "New Year's Day in Place" this year.
Although it is a holiday, quite a few people still need to stick to their posts.
On January 27, Zhang Ying, Director of the Employment Promotion Department of the Ministry of Human Resources and Social Security, stated that if workers are arranged to work overtime during the Spring Festival, the employer shall pay overtime wages in accordance with the law.
According to the "Notice of the General Office of the State Council on the Arrangement of Part of the Holidays in 2021", the 2021 Spring Festival holiday schedule is as follows: February 11-17, a total of 7 days.
If I work overtime during the Spring Festival, how should I calculate my salary?
According to Su Hainan, a special researcher of the Chinese Society of Labor, the "Labor Law of the People's Republic of China" stipulates that if workers are arranged to work on statutory holidays, they shall be paid not less than 300% of their wages; If compensatory time off is arranged, a salary of not less than 200% of the salary shall be paid.
Su Hainan, Special Researcher of the Chinese Society of Labor: During the Spring Festival this year, the legal holiday is 12-14. During these three days, if a worker needs to continue working because of his work, he should be paid three times his own salary for overtime.
If there is no rest during the entire 7-day Spring Festival, and the other 4 days are borrowed weekends, then if you work on these 4 days, if you can’t take a rest, you should pay twice your salary for overtime.
According to relevant regulations, when calculating overtime wages, daily wages are converted according to the average monthly working hours of 21.75 days, that is, overtime wages on legal holidays = calculation base of overtime wages ÷ 21.75 × 300%, overtime wages on rest days = calculation base of overtime wages ÷ 21.75 ×200%.
According to the above calculation method, as long as the "calculation base of overtime wages" is determined, overtime pay can be determined.
How is the "base for calculating overtime wages" determined?
Su Hainan introduced that if the labor contract clearly stipulates the amount of wages, the wages stipulated in the labor contract should be used as the calculation base for overtime pay.
When the labor contract does not clearly stipulate the amount of wages, or the contract is not clear, the actual wages should be used as the calculation base; the minimum base must not be lower than the local minimum wage standard.
Su Hainan, Special Researcher of the Chinese Society of Labor: According to the labor law, the salary should be full-caliber. If you are 3,000 yuan a month, you will get your daily salary at 21.75 (days) and use this as the base; Some companies use this as the base if the middle basic salary or post salary accounts for the bulk of all their wages. Some companies do this, and they use an average value negotiated by both employers and employees as the base; the third is based on local The minimum wage is the base.
In short, the minimum base for paying overtime must not be lower than the local minimum wage standard. It is best to operate in full accordance with the law. It should be the worker’s own monthly wage divided by 21.75 days, or on a daily basis. Those who come to pay wages should pay overtime based on daily wages.
Taking Beijing as an example, based on the 2020 Beijing minimum wage standard of 2,200 yuan, during the Spring Festival, one can get at least 1718.5 yuan for 7 days on the job.
Although there is overtime pay, it is a holiday after all. Disputes caused by workers' refusal to work overtime also occur from time to time. A software engineer from a consulting company was fired for refusing the company's request to bring a computer home to work during the Spring Festival holiday.
After labor arbitration, the laborer received a compensation of 194,000 yuan.
The company dissatisfied and filed an appeal, which was later dismissed. The judgment has now taken effect.
If the company requires employees to work overtime, can workers refuse it? How can we avoid unnecessary disputes?
Zuo Xiangqi, a labor law expert, pointed out that according to the law, under normal circumstances, employers are not allowed to force or in disguise to force workers to work overtime.
However, in the event of an emergency that endangers public safety and public interests, the law allows employers to extend the working hours of workers to appropriately break these restrictions on overtime.
Labor law expert Zuo Xiangqi: In fact, whether it is the Spring Festival, or on weekdays, or Saturday and Sunday, in principle, employees must agree to work overtime.
The company has no right to force employees to work overtime.
Of course, the law has some special rules and regulations. For example, there are some public emergencies, and some people who have job behaviors are not allowed to not participate in overtime work based on their job requirements.
For example, if a city’s water supply system is out of order, on Saturdays, Sundays, or holidays, I don’t want to work overtime to make repairs. This won’t work.
The labor-management relationship is a cooperative relationship, not a struggle relationship.
During the Spring Festival, labor imbalances appeared among different industries and different companies. In order to effectively solve the contradiction between "labor shortage" and "employment idle", many places implemented "shared employees" between labor shortage enterprises and labor surplus enterprises. It also provides "new positions" for migrant workers who celebrate the Spring Festival on the spot during the Spring Festival.
At the same time, employment relations may face some legal risks.
For example, who should be responsible for any employment problems during the loan period?
Zuo Xiangqi introduced that under the premise that the labor relationship has not changed, the lending unit shall assume the main responsibility of the employer during the temporary loan period.
Labor law expert Zuo Xiangqi: During this period, (if) the company that actually used you has no labor contract with you, and the labor contract is still in the previous company, if there is a dispute in this case, you still have to sue the original company.
Of course, you can file an arbitration with the entity that actually provides labor or actual work as a third party or a common respondent.
(Sun Lujin, reporter from Central Broadcasting Corporation)