Various parties have made efforts to curb the spread of invisible overtime in the digital era

Experts called for amending the law to effectively protect the legitimate rights and interests of workers

Reporter Zhu Ningning

It seems to be off work, and it seems that it is not off work.

More and more people find that although they have left the unit, they are still in a working state. Various instant messaging software in mobile phones remain online, and employers can issue work tasks to employees at any time through chat tools such as WeChat, or use remote office software to hold work meetings at any time. If the response is not done in time, the worker will be blamed and even fired.

With the development of instant communication technology, the convenience of communication has broken the limitations of physical space and time in the traditional workplace, and also blurred the boundary between working time and rest time, resulting in working hours constantly "infiltrating" into workers' rest time. Using your phone to handle work and keep responding online has become the norm for many people.

Invisible overtime will undoubtedly cause damage to the rights and interests of workers, so how to avoid the spread of invisible overtime in the digital age? Some industry experts recently pointed out in an interview with the "Rule of Law Daily" reporter that in the context of the digital era, labor forms tend to be flexible, working hours systems are becoming more flexible, and it is necessary to focus on the identification and standardization of working hours. The protection of workers' rights and interests has become a systematic project, and it is recommended to improve labor laws and regulations as soon as possible to protect the legitimate rights and interests of workers.

There are many reasons for the spread of invisible overtime

In fact, invisible overtime is not a new problem. In the context of the digital age, the new phenomenon of invisible overtime is spreading.

The reporter followed up on whether to respond to the work content in the work group after work, and most respondents had this experience. When asked if overtime was counted, few said they had received overtime pay for it.

The reporter's investigation also found that in practice, some employers believe that occasionally assigning work tasks after work does not belong to overtime, but is within the scope of the employee's work responsibilities. Some employers have inadequate overtime management systems, do not accurately record employees' working hours outside the workplace, or although there is an overtime approval system, it is useless. Some employers arbitrarily agree with employees on an irregular working hour system without the approval of the labor administrative department, and arrange the working hours of employees arbitrarily on this basis, and do not pay overtime pay.

It is worth noting that the Beijing No. 3 Intermediate People's Court recently concluded a labor dispute case, and the court finally found that the long-term work of employees through social media such as WeChat outside working hours and the workplace is invisible overtime, and the employer should pay overtime pay to the employee.

Even with judicial practice support, many interviewees told reporters that they would not say "no" to invisible overtime work for fear of being treated unfavorably by the employer or even dismissed, nor did they dare to claim overtime pay from the employer.

Speaking of the phenomenon that invisible overtime is becoming more and more common but almost no overtime pay is paid, Ban Xiaohui, associate professor of Wuhan University Law School, pointed out that in addition to the employer's weak awareness of working hours and law-abiding and the lack of awareness or willingness of workers to protect their rights, the lack of labor inspection and law enforcement is also a reason that cannot be ignored.

"Due to the weak enforcement of labor inspections and limited punishment methods, it is often difficult for law enforcement agencies to monitor invisible overtime when workers do not take the initiative to complain. Especially in the digital age, invisible overtime is even more difficult to achieve timely and proactive monitoring. Ban Xiaohui said that although the labor law has strict regulations on overtime, in order for it to really play a role, the link of supervision and law enforcement needs to be further strengthened.

Take multiple measures to make employers no longer "capricious"

"Theoretically, no matter where the worker provides his or her labor, the time that belongs to the employer's control is considered working time, as long as it belongs to the time that he cannot freely use. Therefore, if the employer arranges employees to work outside the workplace remotely during non-working hours, it should still pay the corresponding overtime pay in accordance with the working hour system. Ban Xiaohui believes that to curb the growing phenomenon of invisible overtime, a more modern attendance system should be established.

Specifically, first, employers can use software and other technical means to accurately record employees' working hours outside the workplace; Second, employees should properly keep evidence of overtime work such as chat records and software clock-in records arranged by the employer remotely, so as to effectively claim their legitimate rights and interests in overtime; Finally, labor inspection departments should establish more convenient online complaint channels, and enhance workers' awareness of rights protection and employers' awareness of law-abiding by publishing typical hidden overtime cases.

Wang Tianyu, deputy director of the Social Law Research Office of the Chinese Academy of Social Sciences, believes that the effective regulation of invisible overtime should further give play to the positive role of trade unions.

"Due to the need to reduce the cost of employment, employers generally tend to let employees work longer hours. In this context, the role of trade unions is very important. Wang Tianyu believes that signing a collective contract between a trade union and an employer to agree on a labor quota is a reliable way to open up the "last mile" of labor rights protection under a pluralistic labor form. In his view, trade unions have the responsibility to urge enterprises to implement labor laws and regulations, and are important subjects to balance the management rights of employers and realize the basic equality of rights between employees and enterprises. Only by truly giving play to the role of trade unions can employees be given a layer of rights protection within the enterprise. Through collective bargaining, trade unions can agree with employers on labor quotas and write them into collective contracts with reference to the specific nature of the industry, as the basis for limiting invisible overtime.

In addition, Wang Tianyu believes that the procuratorate should also become an important force in protecting the rights and interests of workers. "If the procuratorate can conduct public interest litigation against some labor violations that are of high social concern and strongly complained to by the public in their respective industries and regions, it will help better protect the legitimate rights and interests of workers." Wang Tianyu said.

Experts suggest introducing "offline rights" into labor laws

The working hour system of the current labor law mainly includes standard working hours (i.e. 8 hours per day, 40 hours per week) and special working hours for special positions (such as field service, salesmen, long-distance transport personnel). Due to the needs of production and operation, the employer may extend its working hours after consultation with the labor union and the workers, generally not exceeding 1 hour per day; If it is necessary to extend working hours for special reasons, the extended working hours shall not exceed 3 hours per day but not more than 36 hours per month under the condition of protecting the health of the workers.

So, how to effectively protect the legitimate rights and interests of workers while adapting to flexible working conditions? Experts believe that it should be solved from the perspective of system design and improve relevant labor laws and regulations as soon as possible.

"To protect the rights and interests of workers, we must correctly understand the reality of labor relations." Wang Tianyu said that in the absence of a corresponding guarantee mechanism, the more flexible the working hour system, the more hidden the overtime work, and the more difficult it is to protect the rights and interests of workers. In view of this, he suggested that the guarantee of working hour standards should be incorporated into the overall upgrading of the labor legal guarantee mechanism. In addition to administrative law enforcement safeguards, social organizations should also be involved in supervision, and the collective labor legal system should be improved and implemented.

Wang Tianyu also suggested that the current collective bargaining behavior focusing on "wages" should be expanded into a comprehensive collective bargaining mechanism that includes other labor standards such as working hours, so as to realize the transformation of the "administrative" labor standard guarantee system to the "socialized" labor standard guarantee system, and better protect the legitimate rights and interests of workers.

In Ban Xiaohui's view, with the continuous development of digital technology, China's labor law should consider the introduction of "offline rights".

"The so-called 'offline right' means that in addition to statutory or agreed working hours, workers have the right to refuse to contact or deal with related work matters through digital tools during non-working hours, and must not be treated adversely for this, so as to further protect the integrity and continuity of rest periods and promote the realization of work-life balance." Ban Xiaohui said.

Comics/Li Xiaojun

(Rule of Law Daily)