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Recently, courts in many places across the country have released a number of typical labor dispute cases, many of which involve overtime. In practice, some enterprises include paid leave in the category of leave and directly deduct it from the overtime hours of employees, and some units do not approve overtime work in accordance with regulations... These routines violate the legitimate rights and interests of workers.

What should I do if the parties to the labor relationship agree in the contract to implement the irregular working hours system, but do not carry out the approval of the irregular working hours system? If the employer fails to perform the overtime approval procedures in accordance with the rules and regulations, can it determine the fact that the employee is working overtime? Is paid vacation the same thing as regular time off?

Recently, courts in many places across the country have released a number of typical labor dispute cases, many of which involve overtime. Some employers deliberately circumvent the fact that employees work overtime.

Paid leave becomes a "clever calculation" of overtime pay for leave

How to calculate overtime pay, companies and employees have different algorithms, which leads to controversy. The employee sued the Wuzhong District People's Court in Suzhou, Jiangsu Province.

Yang is an employee of an electronics company, and according to the law, he is entitled to 10 days of paid annual leave every year; According to the internal regulations of the electronic company, it is entitled to five days of paid sick leave per year. The standard of overtime pay for rest days of the electronic company is: overtime work on rest days of more than 5 days per month, 20% overtime pay per day at 11.5 hours, deduction of leave days in the current month, calculation of overtime days of rest days based on actual attendance days, annual leave and paid sick leave are not included in the number of days of attendance.

Regarding the above-mentioned overtime pay calculation standards, the electronics company believes that the law stipulates that the statutory working day per month is 21.75 days, and it is more beneficial to employees to settle double wages based on the actual attendance of more than 20 days per month, which is regarded as a rest day. Based on the situation of the whole year, it has exceeded the statutory standard and paid employees double wages for 1.75 days/month × a total of 12 days for 21 months. The employee's annual leave and paid sick leave will not exceed 21 days even if they are fully taken, and their salary calculation is not illegal.

Yang believes that the accounts should not be calculated in this way. Assuming that he works on Saturday, the electronics company should pay twice the salary, and there is no relationship between his Saturday work and his normal attendance from Monday to Friday; However, according to the salary calculation method of the electronic company, assuming that it took four days of annual leave from Monday to Friday, the electronic company directly deducted the overtime expenses of four Saturdays, but in fact, the four days of annual leave was paid leave, and the deduction should not have been made, and the overtime on Saturday should have been paid double wages.

After investigation, the court held that the overtime pay calculation standard of the electronics company ignored the nature that paid leave should be regarded as the employee's attendance and the employer should pay wages normally, and classified paid leave into the category of leave and directly deducted it from the employee's overtime hours, which was actually taking advantage of the employer's strong position and clever and complex overtime pay calculation method in favor of the employer, and improperly deducting the overtime hours of employees who were entitled to paid leave treatment according to law, so as to achieve the purpose that employees did not dare to enjoy paid vacation treatment. The court finally found that the electronics company should pay the difference in wages of 10336,78.<> yuan.

Behind the case, the workers face difficulties in defending their rights

Not long ago, the case of "keeping an eye on WeChat after work is not considered overtime" has become a hot spot. In this case, Li joined a company to operate products, and the labor contract stipulated the implementation of the irregular working hour system. Li said that he worked more than 500 hours of overtime after work, rest days and statutory holidays, but the company did not pay the relevant fees. The company said that the content of the shift is responsible for responding to occasional questions raised by customers in the customer group on rest days, not overtime.

The court held that although the parties agreed in the contract to implement an irregular working hour system, the company did not carry out relevant approval. Workers' working patterns are becoming more and more flexible, and they can provide labor anytime, anywhere through computers and mobile phones, and the problem of invisible overtime for such workers cannot be denied simply because the employee is not working at the employer's workplace. In the end, the court found that overtime was constituted and the company should pay overtime.

"This verdict looks good, but many workers actually face difficulties in defending their rights." Wang Zhenglou, a lawyer at Jiangsu Qianshu Law Firm, reminded that the fact of overtime pay and overtime is evidenced by workers, but few workers will collect evidence of overtime in ordinary times. In addition, employers are also consciously or unintentionally trying to avoid overtime pay, and will not let employees easily collect evidence. In addition, the employer will take the initiative to make it impossible for employees to claim overtime pay at the evidentiary level by splitting the wage structure, agreeing on the calculation base of overtime pay, signing and confirming the salary table, implementing the overtime application system, and applying for a special working hour system.

Xu Xudong, a lawyer at Jiangsu Yicheng Law Firm and a legal aid lawyer at the Jiangsu Federation of Trade Unions, said that WeChat office and home office have blurred the workplace and commuting time, and also brought challenges to legislation, judiciary and law enforcement on issues such as the determination of overtime. How to prove that workers are working overtime and how long they have worked are practical questions.

Employees do work but cannot report overtime

A labor dispute lawsuit that Xu Xudong is representing also involves how to determine overtime in WeChat. Lv Cheng (pseudonym), a former employee, demanded that a Nanjing automobile sales and service company, the "old employer", pay compensation for illegal termination of labor contracts, overtime pay and other expenses.

In July 2020, Lv Cheng joined the company as a marketing specialist, and later adjusted to the person in charge of account operation and management of a short video platform. The company often assigns work tasks that are limited to 7 or 12 o'clock on the day through the WeChat work group on rest days, but employees cannot declare overtime hours in the attendance system, and the company does not arrange for after-the-fact leave.

Another case represented by Xu Xudong also involved overtime pay. In March 2022, a fashion company in Nanjing issued an internal notice saying that in view of the unfavorable overall economic environment, "from March 3, overtime will no longer be counted for personnel at the manager level or above, and personnel at the supervisor level or above can only apply for overtime after more than 3 hours". If the overtime application cannot be made in the Tintin system, there will be no overtime time at the time of salary calculation, and accordingly no overtime pay will be paid.

If the employer fails to perform the overtime approval procedures in accordance with the rules and regulations, can it be recognized that the employee is working overtime? Xu Xudong believes that this case is very similar to one of the second batch of typical labor dispute cases released by the Supreme People's Court and the Ministry of Human Resources and Social Security.

In this case, Wu, who joined a pharmaceutical company in December 2019, actually implemented the work system of working from 12 a.m. to 9 p.m. every day and 9 days a week according to the company's arrangement. Wu submitted an overtime application to the company, but the company did not actually perform the approval procedures. Later, Wu applied for arbitration, requesting that a pharmaceutical company pay 6,2019 yuan for overtime work from December 12 to November 2020. The attendance records submitted by Wu, WeChat chat records with department leaders and colleagues, work meeting minutes and other evidence formed a relatively complete chain of evidence, and the arbitration committee ruled that a pharmaceutical company paid Wu overtime according to law.

Lawyer Xu Xudong believes that labor rules and regulations are binding on both employers and employees. On the one hand, employers should strictly follow the rules and regulations to implement management behaviors, and must not abuse their dominant position and infringe on the legitimate rights and interests of employees; On the other hand, when the legitimate rights and interests of workers are infringed, they should pay attention to retaining relevant evidence to provide a basis for rights protection. The arbitration commission and the people's court shall accurately grasp the standards for determining the facts of overtime, and correct the employer's behavior of evading statutory responsibilities and infringing on the legitimate rights and interests of employees.

Wang wei