11 years of overtime work, in the end, only one year and three months of overtime pay will be returned——
Worker: "What do you want to prove that you have worked overtime in'those years'?"
Our reporter Li Runzhao
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According to the law, workers claiming overtime pay shall bear the burden of proof on the basic facts of overtime work.
The reporter's investigation found that in the process of workers discussing overtime pay, the longer the time span of the overtime dispute, the lower the probability of the worker recovering the overtime pay.
What is the difficulty in obtaining evidence of overtime work?
How to avoid "unpaid" overtime work until the "old" year?
"Replenishment of overtime pay for nearly 3 years", "requiring enterprises to pay 5 years of overtime pay", "advocating 10 years of overtime pay", neatly arranged in the office of Zeng Huansheng, a mediator of the Labor Dispute Mediation Committee in Huli District, Xiamen City, Fujian Province There are stacks of verdicts.
These labor dispute cases all have a common feature: all workers advocate that employers pay them overtime wages.
Overtime pay has a short span of six months and a full 18 years.
"Wine is Chen's fragrance, but this overtime pay is tricky when it becomes'Chen'." Zeng Huansheng admitted frankly that the probability of workers being able to recover these overtime wages in full decreases as the time span of the case increases.
The reason is that as time goes by, the difficulty for workers to obtain evidence is also increasing.
253 screenshots of Moments
Yan Qingxiang (pseudonym), who used to work for a security company in Xiamen, took the company to court for a dispute over overtime.
The overtime wages he advocated span from December 2016 to November 2019, and the amount of overtime wages claimed for compensation is 37574.13 yuan.
For this less than 3 years of overtime wages, it took him nearly half a year to obtain evidence.
Yan Qingxiang told reporters that the security company did not object to the fact that he worked overtime, and the focus of the dispute between the two parties has been on the specific length of overtime.
In the list of evidence he submitted, the attendance sheet and salary sheet were included.
The reporter noticed that after January 2018, the time sheet of the security company recorded the overtime hours of the security guards by marking the symbols "+" and "/", "+" means 8 hours of overtime, and "/" means 4 hours of overtime.
In the list of evidence, the reporter could not find the attendance records before January 2018.
Zeng Huansheng told reporters that Article 42 of the "Supreme People's Court Interpretation on the Applicable Legal Issues in the Trial of Labor Dispute Cases (1)" implemented this year stipulates that workers who claim overtime pay shall bear the burden of proof for the existence of overtime.
However, if the employee has evidence to prove that the employer has the evidence of the fact that the employer has worked overtime, if the employer does not provide it, the employer shall bear the adverse consequences.
According to the "Interim Regulations on Wage Payment", the employer is responsible for keeping the employee's attendance records and wage payment conditions for at least two years.
Yan Qingxiang was told that the security company failed to submit the attendance records two years ago and would not bear any adverse legal consequences for this. The burden of proof is still on his own.
In order to prove his overtime work two years ago, Yan Qingxiang had to find people to help collect the shift record sheet and holiday notice of the year, but there were not many supporting materials that could be found.
These evidences are either missing the signature of the person in charge, or are not stamped with the company's official seal, and it is difficult to prove the fact that they have worked overtime.
Later, Yan Qingxiang found Liu Qing (a pseudonym), the security guard who worked with him.
In 2017, Liu Qing was in the WeChat circle of friends, and almost every day he “posted” a picture of him clocking in at work to his family.
Liu Qing didn't expect that his habit of "showing the circle" turned out to be a favorable evidence for Yan Qingxiang's overtime work.
In the list of evidence submitted by Yan Qingxiang, 253 screenshots and signature testimonies of Moments provided by Liu Qing are also included.
These screenshots, testimonies and Yan Qingxiang’s claims are mutually corroborated, proving that from January 7th to October 17th, 2017, Yan Qingxiang's daily attendance was 12 hours.
Fortunately for a few people
Yan Qingxiang received the award, and the final compensation was consistent with the amount he claimed.
The Arbitration Commission believes that although Yan Qingxiang did not provide proof of his overtime work from December 2016 to January 2017, the security company also has no evidence to prove that Yan Qingxiang's job position and labor remuneration have changed significantly after January 2017.
Therefore, the overtime from December 2016 to January of the following year shall be verified according to the law after January 7, 2017, and the overtime shall be calculated according to 4 hours per day.
"Labor disputes apply the principle of'who claims, who provides evidence', and cases of recovering overtime pay should not be exceptions." Zeng Huansheng told reporters, "Workers who claim overtime pay should provide evidence on the facts of overtime work, but because most of this kind of evidence is made by the employer. The unit holds that the overtime evidence that workers can obtain is extremely limited. In this case, it is quite difficult to require workers to provide sufficient evidence to prove the number of overtime days and the specific amount of overtime pay."
It is rare for Yan Qingxiang to recover overtime wages in full.
"He is one of the lucky few!" Hearing that a colleague was paid overtime wages three years ago, Li Xuefu (pseudonym), who is also a security guard, was both envious and helpless.
He envied Yan Qingxiang's hard work to obtain evidence and had good results. What was helpless was that his 11 years of day and night overtime only got back one year and three months of overtime wages.
"On average every 3 hours of patrol every day, and every 2 hours of patrol on major festivals. Outside of patrols, I watch the surveillance in the duty room and are on duty 12 hours a day." After joining in 2009, this was the daily routine of Li Xuefu's security work.
Since Li Xuefu was unable to provide evidence of overtime work before February 2016, the local arbitration commission did not affirm the fact that he had worked overtime.
In the end, he only got the overtime wages for statutory holidays and weekends from February 2016 to the resignation period, totaling 2951.7 yuan.
Li Xuefu’s mobile phone still retains the picture of the verdict two years ago. He exclaimed: “What can I use to prove that I have worked overtime in those years?”
Zeng Huansheng has mediated a number of labor disputes over overtime wages in the past three years. For over two years, nearly 80% of the workers were unable to provide evidence, which led to the claim to claim overtime pay was rejected or partially rejected.
Among the piles of rulings, it was the "silent majority" who, like Li Xuefu, could not recover overtime pay.
"Unpaid" overtime should not last until the "old" year
"In order to pay a little overtime, it takes time and effort to collect evidence. For ordinary workers, the'threshold' for rights protection is too high." In Li Xuefu's view, let workers prove that they have worked overtime. This incident is somewhat "fantasy."
"The burden of proof for overtime facts should be weighed against the ability of labor and management to provide a reasonable allocation of the burden of proof for both parties." Zeng Huansheng said that in my country's legal practice, based on the principle of protecting workers, workers' burden of proof for overtime pay is usually eased. .
As long as the basic or preliminary evidence provided by the worker can prove the fact that the employer has worked overtime, it can be deemed to have completed the burden of proof, and the employer will be transferred to prove the actual overtime of the worker.
If the employer is unable to provide evidence, it shall bear the adverse consequences of the inability to provide evidence.
“Instead of waiting until after the fact to invest a lot of energy and painstakingly collecting evidence of'unpaid' overtime, it is better to take up the weapon of workers' rights protection when the infringement occurs.” Huang Jiayan, a lawyer at Fujian Jinlei Law Firm, said in an interview with reporters, “ 'Unpaid' overtime work should not last until the'old' year."
He suggested that labor unions and labor law supervision organizations should carry out regular investigations, discover problems in a timely manner, and fix evidence as soon as possible. Workers should pay attention to the preservation of overtime certificates, such as clock-in, attendance, wage payment records, and overtime notices, and put the "checking evidence" work before overtime.