24-hour standby. Do not turn off your phone. No leave allowed during morning and evening gatherings.
Are you still working "invisible overtime" after get off work?
At this year’s “Two Sessions” in Beijing, the work report of the Beijing Higher People’s Court mentioned a case of “invisible overtime”. The report pointed out that this case was the first in the country to clearly specify the issue of "invisible overtime" in the judicial documents. In response to the phenomenon of "invisible overtime" in the Internet age, the court legally recognized the use of WeChat to perform substantial labor after get off work as overtime, protecting workers' "right to offline rest."
While many netizens praised the case, they also expressed various frustrations: "Our company is the same, mobile phones must not be turned off 24 hours a day", "Don't turn off mobile phones during breaks, keep the phone open", "We can't leave even if the leader doesn't leave." ""The meeting will be held in the evening, and training is required"...
What exactly does "invisible overtime" include in reality? How to protect workers’ right to rest? Reporters conducted investigations around these issues.
□ Our reporter Zhao Li
□ Wan Peng, an intern of this newspaper
After returning home at 10 o'clock in the evening, the messages in the WeChat work group still kept ringing.
"Every day, I have to report on the day's work in the WeChat group, how many customers were contacted, how the progress was, etc. If I don't reply to the message, I will be blamed for leaving my post without permission and be severely criticized by the leader." Feng Qian, 32, works in a certain For her, the most painful thing about working in a bank branch is the sense of urgency of being "on call 24 hours a day" - the leader requires that she be on call 24 hours a day, and she needs to communicate with her new ideas about work 24 hours a day.
Like Feng Qian, it has become the norm for many working people to respond to work messages and handle related work in a timely manner after get off work. With the prevalence of remote working, the boundaries between work time and personal time have gradually become blurred. People are no longer in the company, but they still live on their bodies. "Invisible overtime" is prevalent, but there is no consensus on whether it is overtime, and it is even more difficult to protect rights.
Reporters from the "Rule of Law Daily" recently interviewed more than 20 workers from various industries in Beijing, Hebei, Guangdong and other places and found that more than 15 of them had "invisible overtime" and more than half of the workers did not receive any form of compensation after working overtime. Compensation, such as overtime pay, paid time off, etc.
Experts interviewed believe that by further improving relevant laws and regulations, workers should increase their awareness of proof, employers should assume record-keeping obligations and responsibilities, and strengthen the construction and supervision of enterprise trade unions, so as to work together to safeguard the legitimate rights and interests of workers.
On call 24 hours a day
Invisible overtime is everywhere
It is normal to work overtime until 21 o'clock, and it is also common to work overtime until 22 o'clock or even 23 o'clock when working on projects, but these are nothing in Zhao Kai's heart. What makes this person who works in product operations at a large Internet company in Shenzhen the most The young man’s pain is: it’s already midnight when he gets home, and the department leader is still sending messages in the work group to remind everyone of unfinished tasks and materials to be submitted tomorrow morning, “Isn’t this just asking us to continue working overtime after we get home? "
"I never dare to turn off my phone after working for so long, because the department leader will call at any time." Zhao Kai complained.
Li Nan, who works in a public institution in Hebei, also has this problem - he works 24 hours a day on call and still has to deal with work on social software after get off work. Sometimes he is already lying in bed to rest late at night, and he will receive video conference notifications from his leaders.
31-year-old Liu Jing joined a company in Beijing last year as a product operator, responsible for building an operational organizational structure, managing content teams, formulating and implementing launch plans, researching product pros and cons, and tracking them. According to the company, her job was based on variable hours, a working time system for workers whose scope of duties cannot be limited by fixed working hours. Sometimes Liu Jing needs to be on duty on weekends and statutory holidays. When the company has something to do after get off work, her boss and other employees will communicate with her online.
"More than 100 pages of WeChat chat records, more than 100 pages of DingTalk punch-in records, and more than 30 pages of duty schedule records." These are 15 months of overtime records compiled by Liu Jing. When on duty, he needs to answer questions from relevant customers and post content on the company's public account .
For "workers", the content of "invisible overtime" goes beyond "replying to work in social groups". Many times, the instructions to "work overtime" are also "invisible".
Luo Wei, a Beijinger, joined a new media operation company as an editor last year. She did not expect that her overtime work would be far more than just work. "The leader will never explicitly say to work overtime, but will suddenly assign tasks on Thursdays and Fridays and ask them to complete them the next Monday. Then he changes his mind and says that if we have a meeting on Monday morning, it is better to publish the article on Sunday. This is what he means by asking me to work overtime on the weekend. ”
In addition, there are team-building activities that occupy Saturday and Sunday breaks in the name of "releasing work stress and rekindling work morale", there are no performance indicators and there is no need to clock in but people must be on duty at the company's holidays, and semi-mandatory weekly morning meetings, etc. The content is indescribable, it seems like "work" but not "work", and it squeezes Luo Wei's life inch by inch invisibly.
Feng Qian also had a similar experience. "There is no overtime pay, and the word 'overtime' is not even mentioned." She said that sometimes the leader will directly arrange tasks and participate in various external outreach on weekends, "such as setting up stalls in front of concerts to promote banking services. For example, Regarding the workload outside of working hours, the leadership's attitude is also very tough - I have to go and there are no benefits."
The holidays that many people look forward to may become a "nightmare" for Feng Qian. Because the autumn sports games, annual meetings, social activities, team building and climbing the Great Wall and Xiangshan Mountain are all scheduled on weekends, and no leave is allowed.
"Rehearsals for singing and dancing programs at annual meetings and sororities require two or three nights a week and three hours of rehearsal every day. If a large-scale event is approaching, you may have to rehearse on the weekends two weeks in advance to go through the entire process." Feng Qian said that there was no overtime pay, no benefits, no time off, and no advice was even asked. She was directly informed by phone where to report.
In addition to team building activities, some morning and evening parties also consume a lot of energy.
Luo Wei has a morning meeting every Monday. All employees are required to arrive half an hour earlier than work time and are not allowed to be late or absent. There was no talk of data or performance at the meeting. The first item on the agenda was to sing the "Song" composed by the veterans and praising the company. Then representatives from each department took turns to talk about their struggles and inspirational stories. Before the meeting ended, they collectively swore: work hard, Thanks to the company and customers. Later, the morning meeting culture intensified, and additional department morning meetings were added on Thursdays and Fridays. This made Luo Wei feel suffocated.
As the Spring Festival approaches, Feng Qian’s workplace has to put up couplets and window grilles, so she has to “stay after get off work to decorate.” In addition, “at the end of the year, all employees are required to be at work even on weekends, and everyone has dinner together, buys food, and cleans up.”
Communication technology is increasingly developed
Mixing work and life areas
The "Survey Report on the Current Situation of Overtime Work in the Workplace 2022" released by 51job shows that nearly 60% of the workplace workers surveyed said that they are in a "flexible overtime" mechanism, and their working time and personal time are not clearly distinguishable. On the surface, there is no Under the mode of high-intensity overtime, he was swallowed up by "invisible overtime".
Shen Jianfeng, director of the Academic Committee of the Law School of the China Institute of Labor Relations, believes that a prominent phenomenon in the labor field brought about by the development of communication technology in the digital era is the confusion between the labor field and the personal life field of workers, which has led to the problem of "invisible overtime". How to solve this problem is an urgent topic that labor law theory and practice must face in response to the digital age.
"The development of digital communication technology has made remote work easier, which is the technical prerequisite for the emergence of 'invisible overtime'. This is also related to the changes in modern industry. Many labors are no longer limited to specific labor places, and their work forms are more diverse. Most of them are result-oriented." Shen Jianfeng analyzed.
Zhang Liyun, associate professor at the China Institute of Labor Relations, believes that overtime in the conventional or traditional sense must be performed in the workplace and within the employer. However, in modern cities, the development of network and telecommunications technology allows some work to be completed entirely online. In this case, work location is no longer the only criterion for evaluating whether to work overtime.
"Therefore, holding meetings in the evening after get off work and arranging team-building activities on weekends are all considered 'invisible overtime'." Zhang Liyun said.
In the country's first case in which the issue of "invisible overtime" was clarified in a judicial document, the second-instance court, the Beijing No. 3 Intermediate People's Court, held that in the case of using social media such as WeChat to carry out work, if workers use social media during non-working hours, If the work carried out by the media has gone beyond the scope of ordinary simple communication, and the workers have contributed substantial labor content, or the use of social media to work has cyclical and fixed characteristics, which obviously takes up the workers' rest time, it should be deemed as overtime work.
The Beijing No. 3 Intermediate People's Court also pointed out in the judgment of the above case that it is not uncommon for workers to use social media such as WeChat to carry out work during working hours and outside the workplace. For such workers' "invisible overtime" problem, it cannot be just because of labor. To deny overtime work, the employee does not work in the employer's workplace. Instead, the concept of workplace should be blurred and comprehensive consideration should be given to whether the employee has provided substantial work content to determine overtime work.
"In the above-mentioned case, the court of second instance clarified the adjudication method of comprehensive consideration, and regarded 'obviously occupying rest time' and 'providing substantial work content' as key judgment factors for determining overtime, which captured the essence of overtime in the legal sense and also This prevents the generalization of overtime recognition," Shen Jianfeng said.
The definition criteria are not yet clear
It is difficult to prove invisible overtime work
However, in reality, there are still legal difficulties in proving and identifying "invisible overtime". Many past cases have shown that the judgment does not support the compensation of overtime pay. The reasons include that the evidence provided by the employee cannot directly prove that overtime is arranged by the employer, and fails to prove the existence of continuous and regular overtime as claimed by the employee.
During the interview, the reporter also noticed that regarding "invisible overtime", many interviewees expressed that they did not dare to defend their rights or that it was difficult to defend their rights. The reasons behind this include the difficulty of providing evidence.
"I want to protect my rights, but I don't know what constitutes 'invisible overtime', and I don't know how to find evidence. And I'm also afraid of offending my boss or being isolated by my colleagues," Feng Qian cried.
"Whether answering calls from your boss or clients after get off work is considered work, and to what extent should be included in workload, it is currently unclear." Shen Jianfeng said, "In fact, not all 'WeChat Office' online "Office work is considered overtime work. If the worker only communicates briefly in social groups, is episodic and temporary, and does not affect the worker's life and rest, it should not be considered overtime work."
How to determine the working hours of "invisible overtime" also needs to be considered. Shen Jianfeng said that considering that it is difficult to grasp the "working status" of workers working overtime through social software, employers cannot supervise them in real time, and workers can also carry out other life activities during the process of "online overtime", he believes that it is directly It is unfair to the employer to regard all the time periods or times of a certain day reflected in the chat records as overtime hours.
"The specific identification of labor issues in the digital era and how to provide evidence need to be continuously improved in future jurisprudence. The judicial ideas expressed in the 'Invisible Overtime Case' have important implications for the theoretical and institutional development of labor law and the balanced protection of the interests of workers and employers. It is very inspiring in all aspects." Shen Jianfeng said.
Strengthen awareness of time rules
Consider introducing “offline rights”
So, how to solve the problem of "invisible overtime"?
Shen Jianfeng believes that there are three ways to solve the problem of "invisible overtime" for workers after get off work: one is to deny the possibility of it constituting overtime; one is to introduce "offline rights" through legislation; the other is to adapt through development The overtime system in the digital age will solve this problem.
In recent years, some European countries, such as France, took the lead in introducing employees' "offline rights" into the labor code in 2016, that is, the right to disconnect from the work network and not accept the employer's instructions and provide work. Article 2 of the draft directive of the EU's 2021 Proposed Text of the Right to Offline Directive stipulates that "offline" means "not engaging in work-related activities or communications directly or indirectly through digital tools outside of working hours."
Shen Jianfeng believes that the "right to go offline" is not simply an issue of overtime, because contacting workers after get off work to arrange work is actually a work status.
Zhang Liyun also pointed out that the introduction of "offline rights" actually puts workers' rights to work and rest in the most important position. You can refuse to answer calls for labor arrangements outside of 8 hours. Retrospective liability for refusing to answer the phone is untenable. Although our country's legal system does not mention the "right to offline", there are institutional limits on the maximum time for overtime work, which also protects workers' basic right to rest.
Experts interviewed all said that only when corporate managers and employees have established a strong awareness of working time rules, including the awareness of respecting and protecting the "right to offline", can working time rules such as the "right to offline" be effectively implemented.
"According to the current arbitration rules, the burden of proof for workers claiming overtime pay lies with the workers. Workers need to retain overtime instructions and complete the proof in the form of evidence." Shen Jianfeng said that at the same time, employers should also improve the obligation record system. “Employers have legal obligations to record the labor they arrange for workers.”
Shen Jianfeng said that in current relevant judicial cases, workers will be kicked out of social work groups due to litigation, which makes it difficult to produce evidence. “The obstruction of evidence system points out that the litigants refuse to submit or submit evidence for some reason,” Shen Jianfeng said. The consequences of not being able to provide evidence due to one's own reasons. In the future, this system can be applied to the issue of overtime, making it clear that employers need to produce attendance records and other records of work arrangements."
Zhang Liyun’s suggestion is that workers should improve their awareness of rights protection. In addition to giving priority to completing work within the scope of their duties, workers must safeguard their rights according to the working hours stipulated in the labor contract. Fix the evidence and work content in the form of chat records. Not only should the records of the entrustment be reflected in the chat records, but also the records of the submitted results should be kept.
"At the same time, we should also give full play to the support and role of labor legal aid and the trade union system, and use a series of means to restrict employers from abusing their rights." Zhang Liyun said that the power of trade unions should be strengthened, and trade unions balance the power of workers and employers. An important subject, through the power of the group, promotes the balance between workers and employers.
(The workers interviewed in this article are all pseudonyms)
(Legal Daily)