I have meetings as soon as I get off work and training as soon as I get to the weekend; when I go home during the Chinese New Year, I am required to bring my computer with me and not lose contact——
Does "fragmented" work during breaks count as "fragmented overtime"?
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Should there be overtime pay for "fragmented overtime"? Is it reasonable to be required to take a computer home and be “on call” at any time during the Spring Festival holiday? The court held that companies are not allowed to force employees or force them in disguise to work overtime. If employees have evidence to prove the fact of overtime, they have the right to claim overtime pay even without approval.
"This year's classes have been added here!" The new year is approaching, and many professionals who are accustomed to working overtime will jokingly tease them when they are about to end their work year. Due to the nature of work, business progress and other reasons, many people still have to stick to their posts in various forms during the Spring Festival holiday. However, some workers are not able to enjoy their due rights after their efforts.
During the Spring Festival holiday, can companies force employees to work overtime? How to calculate overtime pay? Meetings are held as soon as get off work gets off, and training is done as soon as weekends come. How to identify "fragmented overtime"?
Focus 1: Do meetings and trainings count as overtime?
Some overtime work is "hidden" so deeply that workers cannot detect it, and their own time is quietly occupied. A few days ago, the Shanghai Songjiang District People's Court heard a case involving "fragmented overtime."
Xiao Yao, who joined a company as the operations director, said that the company often organized meetings after get off work and arranged training on weekends. He frequently worked "fragmented overtime" but received no overtime pay. Xiao Yao did not expect that he would be fired by the company two months later because he failed to pass the probation period.
Xiao Yao was not the only one who had his rest time "stolen". Chang's company stipulates that employees must apply for overtime, and 18:00 to 21:00 is employees' dinner and rest time, and employees' overtime time is after 21:00. After joining the company, Chang applied for nearly 100 hours of overtime through the company system, but the company only recognized the overtime hours after 21:00.
Chang filed a labor arbitration requesting the company to pay a total of over 57,000 yuan in overtime wages, which was supported by the arbitration. The company was dissatisfied and went to court. The court of first instance deducted Chang's reasonable meal and rest time based on Chang's attendance records and overtime application records, and ruled that the company should pay Chang overtime wages of 32,000 yuan. The second instance upheld the original verdict.
Xu Yan, a judge of the Civil Tribunal of Shanghai No. 1 Intermediate People's Court, said that the reasonable and legal parts of the rules and regulations formulated by the employer should be used as the basis for hearing labor dispute cases, and the employer's autonomy in employment should be fully respected and guaranteed. At the same time, the court should also protect the legitimate rights and interests of workers due to overtime work, and rules and regulations that illegally avoid labor costs and infringe on the legitimate rights and interests of workers should be deemed invalid.
Xu Yan also reminded that employers should clarify from their consciousness that working overtime is only an emergency way for the company to deal with temporary business needs, and it is not the norm for employees.
Xiao Yao's case was also solved. The court finally ruled that meetings and training were overtime work, and the company should pay overtime wages of more than 12,000 yuan.
Judge Zhang Shuihong of the Sijing Court of the Songjiang District People's Court of Shanghai believed that based on the evidence provided by the plaintiff, these training meetings were initiated, organized and arranged by the employer and did take up the workers' rest time, so they should be included in overtime wages; if employees If there is evidence that can prove the existence of overtime, even if there is no approval, you have the right to claim overtime pay.
Focus 2: Can you refuse if you are asked to work overtime during the Spring Festival holiday?
Xiao Zhang was a software engineer at a consulting company and was fired by the company after working for 4 years. The notice of termination of the labor contract stated that Xiao Zhang "maliciously refused to perform and maliciously delayed the labor tasks arranged by the company, and maliciously violated the working time regulations established by the company." Only then did he understand the whole story - before the 2019 Spring Festival, the company notified him to take his computer home for the New Year on the grounds that the customers Xiao Zhang was responsible for maintaining might need emergency services, but he refused.
What made the company even more dissatisfied was that Xiao Zhang took 27 days off during the Spring Festival and "lost contact" during this period. Xiao Zhang believes that he has to spend time with his family during the Spring Festival holiday and is not obligated to work. Moreover, the 27 days are legitimate holidays, including 11 days of Spring Festival holiday, plus 12 days of rest and two weekends.
Xiao Zhang applied for labor arbitration, requiring the company to pay 194,000 yuan in compensation for illegal termination of the labor contract, as well as overtime wages and other expenses, and received support. The company was dissatisfied and took Xiao Zhang to court, asking for a ruling that the company did not have to pay the compensation.
Can refusing to work overtime during the Spring Festival constitute a reason for companies to fire workers?
After hearing, the Shanghai Pudong District People's Court held that regarding Xiao Zhang's refusal to bring a computer during the Spring Festival, there was indeed a situation where work emergencies needed to be dealt with. The company's request was not inappropriate, but the employee was on vacation and did not have the right to do so. The employee has the obligation to provide labor to the enterprise, so his refusal to bring a computer does not constitute a malicious refusal to work assigned by the company.
The court pointed out that the seven-day vacation was also due to due procedures and procedures, and was not the "lost contact" state claimed by the company. Considering that the other two disciplinary violations did not constitute a serious violation of rules and regulations, the court rejected the company's lawsuit.
The People's Court of Jing'an District, Shanghai also heard similar cases. Workers have bought their train tickets to go home during the Spring Festival in advance. Can they refuse the company's overtime arrangement? Is it legal for the company to terminate the labor relationship with him on this ground? Ouyang Bin, assistant judge of the Civil Tribunal of this court, stated in accordance with Article 31 of the Labor Contract Law that workers can refuse the company's overtime arrangements, and the company may not force or disguised force workers to work overtime. If the company terminates the labor relationship on this basis, the employee can submit an arbitration application to the local arbitration committee and request the restoration of the labor relationship or the payment of compensation for illegal termination of the labor contract.
Focus 3: How to calculate overtime wages during the Chinese New Year?
Faced with fast-paced and high-intensity work, working overtime seems to have become the norm for many people. But when it comes to overtime wages, some employers are silent.
Before the Spring Festival of 2022, Li Mei's company received an urgent order, requiring that the product must be produced during the Spring Festival holiday. The company then summoned employees to work overtime during the Spring Festival and promised to pay overtime pay. Li Mei went to the company from 9 to 9 every day for seven days from New Year's Eve to the sixth day of the first lunar month to stick to her job. Unexpectedly, the company never mentioned overtime wages.
"When Li Mei wants to calculate overtime wages, she should first understand which one of the standard working hours system, comprehensive calculated working hours system, and irregular working hours system her position belongs to." Ouyang Bin said, "Overtime is on statutory holidays from the first to the third day of the new year. , cannot be used to deduct overtime wages. New Year's Eve, the fourth to the sixth day of the lunar month are rest days, and compensatory leave should be arranged at the same time. If compensatory leave cannot be arranged, overtime wages for rest days will be paid."
Ouyang Bin also explained the situation during the Spring Festival: "Overtime wages from the first to the third day of the first lunar month should be calculated as 300% of the overtime wages for statutory holidays. Overtime wages for New Year's Eve and the fourth to sixth day of the lunar month should be calculated as 200% of the overtime wages for rest days. calculate."
Ouyang Bin introduced that the specific calculation of overtime wages is the hourly wage multiplied by the overtime hours, and then multiplied by working days (150%), rest days (200%) and statutory holidays (300%). She particularly emphasized that overtime wages are labor remuneration for workers. Even if Li Mei terminates the labor relationship with the company, she can still apply for arbitration and require the company to pay overtime wages for the previous Spring Festival.
Regarding the comprehensive time work system that is easily confused, Ouyang Bin gave an example of the monthly comprehensive calculation working time system: "The total working time of the month should be 20.83 working days per month × 8 hours = 166.64 hours. The part exceeding 166.64 hours is If you extend your working hours, you should be paid overtime wages for extended working hours. If you are scheduled to work on statutory holidays, you should also be paid overtime wages for statutory holidays." (Worker Daily reporter Pei Longxiang)