At the National Two Sessions in 2024, "the right to offline rest" has become a hot topic. In his proposal, Lu Guoquan, a member of the National Committee of the Chinese People's Political Consultative Conference, proposed for the first time "enacting the right to offline rest into law", that is, establishing legal provisions to protect the right to offline rest and providing workers with the right to safeguard their rights. Legal support.
Lu Guoquan said that the right to offline rest refers to the right of workers to refuse to use digital tools to communicate or handle work matters outside of legal or agreed working hours.
Recently, Lu Guoquan said that the proposal of "legislation of the right to offline rest" has been put on file.
Earlier, a labor dispute case known as "the first case of invisible overtime" was on the hot search, and was included in the work reports of the Beijing High Court and the Supreme People's Court.
The client, Ms. Li, took her employer to court and demanded that the other party pay overtime wages. Part of her appeal was supported by the Beijing No. 3 Intermediate People's Court, the court of second instance. In the judgment, the judge made the concept of "invisible overtime" clear and pointed out, Overtime work cannot be denied simply because the employee does not work at the employer's workplace. Instead, the concept of the workplace should be blurred and comprehensive consideration should be given to whether the employee has provided substantial work content to determine overtime work.
Jiang Guang, deputy dean, professor and doctoral supervisor of the School of Labor Economics at Capital University of Economics and Business, pointed out that the reason why invisible overtime and offline rest rights have attracted widespread attention from all walks of life is that previous legislation and law enforcement applications faced challenges: First, workers actually Overtime work, but in terms of proof, it is difficult to identify overtime work; secondly, the development of mobile information technology has blurred the boundaries between the workplace and personal life areas, working time and rest time, and work matters and private matters.
Lu Guoquan expressed optimism about the "legislation on the right to offline rest".
In an interview with the media, he said, "I think everyone will be able to explore a good way to protect workers' rights that is suitable for the digital economy or the new economy."
"The first case of invisible overtime"
According to the judgment, Ms. Li joined an Internet technology company in Chaoyang District, Beijing in 2019 as the person in charge of operations.
Ms. Li claimed that during the past year of working, she had continued to handle work for the company online during non-working hours. She worked a total of 595.8 hours of overtime in various forms, and the company should pay nearly 200,000 yuan in overtime pay.
Before filing the lawsuit, Ms. Li applied for labor arbitration, but her request was rejected.
Wang Ziyuan, a lawyer at Beijing Jiuwen Law Firm, received this case in 2021. After reading the evidence provided by Ms. Li, Wang Ziyuan believed that she did provide substantive work after get off work and could claim overtime from the employer. Fee demands.
Wang Ziyuan said that Ms. Li's "breakup" with this employer was not pleasant. She had a conflict with the person in charge of the company during work, and then the conflict intensified. During a dispute, she even called the police. After that, Ms. Li was fired by the company. dismiss.
After sorting through Ms. Li’s chat records, Wang Ziyuan’s first reaction was that overtime does exist, but at the same time, according to his professional intuition, “working overtime online after work is still relatively difficult to get support from the perspective of judicial practice. , First, how to determine the existence of online overtime is highly controversial in practice, and second, even if overtime is recognized, there is also controversy over whether the specific overtime hours and overtime pay can be supported."
After officially taking over this case, Wang Ziyuan did a case search, hoping to find similar refereeing opinions to this case, "but he did not find it."
Wang Ziyuan recalled that he and the client spent a lot of effort in collecting evidence in this case. He and Ms. Li sorted out all the chat records, sorted out the information in the communication group with the person in charge of the company and customers, and made a detailed copy of the chat records. The form and text description stated what kind of work the parties performed at which time point, and collected the account operation schedule issued by the employer, which showed that during the holidays, the employer still arranged for Ms. Li to be on duty.
"This job is very trivial. We cannot throw hundreds of pages of chat screenshots to the judge. Instead, we must write down the specific time and specific work content of overtime work, and indicate that the overtime work at that time was necessary or was the work assigned by the employer. There are too many, and the parties have to work overtime to complete it. Only in this way can they prove to the judge that the parties’ claims are based on facts.”
After sorting out the evidence, they ushered in the first trial.
In court, the defendant, a technology company, stated that Ms. Li is the head of the operations department. After get off work, if the company has something to do, other employees calling Ms. Li for consultation should not be considered overtime.
Regarding Ms. Li’s claim about being on duty on weekends and statutory holidays, the defendant stated that there are customers and other employees of the company in the WeChat group. Customers will ask questions in the group, and employees only need to reply to customer information. The defendant believes that this does not fall into the category of overtime. .
The case was ultimately lost in the first instance.
Wang Ziyuan said, “My expectation at the time was that even if the court did not support all of our requests, it would support some of them, but the result was cruel, and all of our requests were rejected.”
On the night when he received the verdict, Wang Ziyuan had a phone call with Ms. Li. It was a phone call that was both frustrating and depressing. “The client has no idea. The arbitration committee did not support her, and she did not get a good result in the first trial. She has no idea whether to continue the appeal."
Wang Ziyuan analyzed based on the judgment of the first instance, "Although the result was not good, we found a problem in the first instance judgment. The first instance court believed that the evidence we provided was not enough to determine that the parties involved worked overtime because the labor contract stipulated irregular hours. Working system." After inquiry, he found that the irregular working system needs to be approved by the human resources and social security department. The Supreme People's Court has also issued typical cases related to the irregular working system. Based on this, Wang Ziyuan suggested that Ms. Li appeal.
In the second trial, Wang Ziyuan specifically stated that the irregular working hours agreed between the employer and Ms. Li had not been approved by the human resources and social security department. This was also recognized by the employer. After that, the focus of the trial was still on whether there was overtime. fact.
In the end, the shift schedule issued by the employer became the key evidence.
Judge Zheng Jizhe of the Beijing Third Intermediate People's Court was the presiding judge of the second instance.
A report from Beijing Daily mentioned that Zheng Jizhe repeatedly studied chat records and employment contracts, consulted a large amount of information, and innovatively proposed in the judgment that "substantial labor" and "obvious occupation of time" were used as "invisible overtime". According to the determination standard, the judgment affirmed Ms. Li’s labor and decided that the company should pay Ms. Li overtime pay of 30,000 yuan.
The judgment of the second instance showed: With the development of economy and the advancement of Internet technology, workers’ work patterns have become more and more flexible. They can provide labor anytime and anywhere through computers and mobile phones, and are no longer limited to the work location and office workstation provided by the employer, especially It is not uncommon for workers to use social media such as WeChat to carry out work during working hours and outside the workplace. Regarding the invisible overtime problem of such workers, overtime cannot be denied simply because the workers do not work in the employer's workplace. Instead, the concept of the workplace should be blurred and comprehensive consideration should be given to whether workers have provided substantial work content to determine overtime work.
Regarding the use of social media such as WeChat to carry out work, if the worker's use of social media to carry out work during non-working hours has exceeded the scope of ordinary simple communication, the worker has paid substantial labor content, or the use of social media to work is cyclical and fixed. If the work has obvious characteristics and takes up the rest time of the workers, it should be regarded as overtime work.
When he received the verdict, Wang Ziyuan did not expect that the case would become a landmark case. At the beginning of 2023, some media paid attention to the case, and the matter also appeared on hot searches many times, and was subsequently selected as one of the 2023 cases. Top ten cases that promote the rule of law nationwide.
Patience or resignation
Luo Ming is a practitioner in the financial industry. He has heard of "invisible overtime" and "right to offline rest," but he did not have much reaction to the term "right to offline rest."
After graduating from a top domestic university with a bachelor's degree and a master's degree, he entered a well-known investment bank. It took Luo Ming nearly 20 years to get to this point. The same goes for his colleagues. During their student days, they immersed themselves in study. A lot of early accumulation.”
In his first year in the industry, Luo Ming almost never rested on weekends. He needed to carry a computer with him to cope with sudden work tasks from his boss. One early morning, he received a call from his boss asking him to complete the work immediately. A document. That day, he worked until four in the morning.
Afterwards, the leader praised him for doing a good job, and he thought, "Are you trying to PUA me?"
Luo Ming said that this kind of working situation is almost normal. Colleagues sometimes complain privately, but no one brings the problem to the public, let alone labor arbitration or using the law to protect themselves.
Employees who are forced to work longer hours have only two options: endure or leave.
This is an industry shrouded in halo, and there is always a steady influx of new people.
One year after joining the company, Luo Ming rarely thinks about the issue of labor rights protection, and rarely participates in colleagues’ discussions about working hours. “It’s useless to think about it.” He sometimes even feels guilty, “Our treatment is already calculated. Okay, shouldn’t I ask for so much?”
Zhong Lin, who is in the film and television industry, reacted fiercely when the "right to offline rest" was mentioned. She sometimes wondered, "Is this a place that the Labor Law cannot control?"
Zhong Lin said that during the project period, she often had to assign tasks to suppliers in the WeChat group late at night, and frequently communicated with artists during off-duty hours. She almost needed to respond to the needs of the leadership at the first time at any time, and appease those nearby. There are hundreds of WeChat groups from film producers, artists and higher-level leaders who may put forward opinions at any time.
Zhong Lin saw “the first case of invisible overtime” on a hot search, but she was not optimistic about how far this industry could go. “This is an industry where everyone works overtime and stays up late. After being in this industry for a long time, you Everyone would think that it is reasonable for a WeChat call to wake me up to work. After all, even if there is no "invisible overtime", can the crew still guarantee an 8-hour working day? I have worked for 8 hours and have to get off work. Let others Are the cast and crew waiting?”
Zhong Lin said, "If you still want to continue working in the film and television industry, it is best to maintain the status quo and keep your mouth shut. If other companies know that you went to arbitration because you did not want to reply to the message on WeChat after work to claim the task, then you I guess I can’t survive in the industry anymore, and I might really lose my job.”
Lu Guoquan, a member of the National Committee of the Chinese People's Political Consultative Conference, mentioned in an interview that a store designer in Sichuan joined more than 600 work groups in more than two years. He was "on call 24 hours a day" and "was trapped by the groups". He did not dare to turn off his mobile phone and spent a lot of money after leaving his job. After quitting the group for three and a half hours, he felt much more relaxed. This incident became a hot search topic, which deeply impressed him.
"Nowadays, 'invisible overtime' is common, and there are no corresponding regulations and regulations. People are always under a very transparent pressure, a kind of 'work' atmosphere, and there seems to be no corresponding means to limit and regulate it. For workers, being affected in this way outside of working hours seems to mean that the leader or boss thinks highly of him and there is still work for him to do; on the other hand, he has a sense of "dare he dare to be angry but dare not" I can’t talk about my mental state to the outside world, it’s just a kind of social hidden pain.”
According to the "Survey Report on the Current Situation of Overtime Work in the Workplace 2022" released by 51job.com, overtime work has become an unavoidable norm in the workplace.
62.9% of the interviewed workers said they need to work overtime occasionally (1-2 days/week), and 28.7% said they need to work overtime frequently (3-5 days/week).
Nearly 60% of the workplace workers interviewed said that they are in a "flexible overtime" mechanism. Their working time and personal time are not clearly distinguishable. On the surface, there is no high-intensity overtime work mode, but they are swallowed up by "invisible overtime".
Evidence Difficulties
Having interacted with many parties involved in labor disputes, Wang Ziyuan has also witnessed the various concerns of migrant workers when it comes to protecting their rights and interests. “What should I do if the rights protection cycle is too long? I have invested so much time, energy and money, but I can’t get what I want.” What about the desired result?”
He knows that there are only a few people who can come forward to him, and more often than not, workers give up on their own before embarking on the path of rights protection. “Everyone’s daily life is very stressful, and they may not be willing to spend so much energy. to claim relevant rights.”
Wang Ziyuan understands workers’ concerns when safeguarding their rights. “It is very difficult to identify overtime work. If workers work overtime voluntarily, they cannot claim overtime pay. In judicial practice, punch-in records generally cannot be used as evidence of overtime work, because even if it is postponed, Even if the off-duty time is determined, it is impossible to confirm that the employee provided labor during this period. For example, some employers believe that the employee will order takeout after get off work, chat with colleagues for a while, and stay until ten o'clock in the evening. Just clocked in."
Wang Ziyuan said, "In labor dispute cases, workers need to provide evidence by themselves when suing, and the evidence of overtime must be approved by both the worker and the employer. For example, many companies will require employees to submit overtime applications. If Such evidence can basically be supported by the court, but if it is one-sided evidence or one-sided statement, it often cannot be supported."
Judging from Wang Ziyuan’s experience, many workers feel that it is difficult to obtain good results in labor dispute cases. The biggest difficulty is evidence. “How to prove that they have indeed worked overtime, that overtime is necessary, and that such overtime is recognized by the employer?” .”
Employers and workers often disagree on whether hidden overtime exists.
Wang Ziyuan believes that the key point that constitutes overtime is whether the work arranged by the employer requires employees to complete it during the rest period.
"For example, if the leader gives a notice after get off work and requires it to be completed the next day. I don't think it is overtime, but if a task is assigned after 19 o'clock and requires it to be completed before 22 o'clock, then this is asking workers to provide it during non-working hours. Substantial labor should be recognized as overtime work.”
According to Article 36 of the Labor Law, “The state implements a working hour system in which workers’ daily working hours do not exceed eight hours and the average weekly working time does not exceed forty-four hours.” According to Article 44 of the Labor Law Article 1, “If an employee extends his or her working hours or works overtime on holidays or rest days, the employer shall pay the employee a wage higher than the employee’s normal working hours wages.”
Scope also agrees that the Labor Law has clear provisions on working hours, breaks, vacations, and overtime. These provisions can also become the legal basis for invisible overtime management and workers’ rights to offline rest.
However, there is still a long way to go before the real implementation of invisible overtime and the right to offline rest. The reason is: in terms of overall social perception, the concept of hard work still dominates the mainstream, and there is a perception that some companies have relaxed labor law controls and sacrificed the rights and interests of workers. Second, at the institutional level, labor inspection and judicial arbitration regarding the right to rest are still insufficient, especially the power to supervise and enforce law is insufficient, and they basically ignore complaints; at the arbitration and litigation stages, the burden of proof on workers is relatively high Heavy.
Scope believes that labor legislation and law enforcement should also conform to the development trend of new technologies, especially based on new technologies to strengthen the employer's responsibility and restrictions on overtime management, such as requiring employers to manage through digital technology, and do a good job in working hours, including Collect overtime statistics and inform relevant workers of relevant information.
Wang Ziyuan also agrees that the implementation of the right to offline rest cannot rely solely on workers' rights protection. "Employers should have such awareness, and relevant management departments should also play a supervisory role."
"A wake-up call for employers"
In my impression, the right to offline rest began to attract academic attention in 2021, and the discussion about invisible overtime started a few years earlier.
He noticed that relevant government departments have also paid attention to this topic and provided guidance mainly on the online labor rights of workers in the new employment form.
For workers in new forms of employment who rely on Internet platforms for employment, in November 2023, the Ministry of Human Resources and Social Security promulgated the "Guidelines for the Protection of Rest and Remuneration Rights and Interests of Workers in New Employment Forms", which provides guidance on how platform companies and platform employment cooperatives ensure Guidelines are provided for workers to obtain necessary rest periods.
It is mentioned that the daily working hours of workers in the new employment form include the cumulative order-taking time of the day and the relaxation time determined by due consideration of the workers’ necessary online waiting for orders, service preparation, physiological needs and other factors.
If the enterprise explicitly requires workers in the new employment form to be online or go to designated places at designated times to accept routine management, the online time and offline routine management time required by the enterprise shall be included in working hours.
Supreme People's Court Chief Zhang Jun mentioned in this year's work report of the Supreme People's Court that "substantial labor" and "obvious occupation of time" should be used as the criteria for identifying online "invisible overtime", so that online work can be profitable and offline rest can be beneficial. Assure.
The Supreme People's Court work report pointed out that data show that in 2023, the Supreme People's Court concluded 142,000 labor dispute cases involving new industries, a year-on-year decrease of 10.2%.
According to the report, based on actual employment, it is determined whether there is a labor relationship between delivery boys and other platform companies, and the "hidden tricks" of avoiding employment responsibilities through serial outsourcing of labor services, inducing self-employment registration, etc. are eliminated.
It is clear that "substantial labor" and "obvious occupation of time" are used as the criteria for identifying online "invisible overtime".
In an interview with the media, Lu Guoquan expressed his suggestions for solving this problem institutionally, "I suggest revising the standard working hours and clearly defining online overtime and working time compensation. Increase wages, working hours, breaks, vacations, etc. in the context of the digital economy. In terms of labor standard system, we should research and standardize the working hours standard guarantee into the labor security mechanism. Determine the boundaries of online and offline working hours, and make institutional arrangements for working hours for positions that rely on the Internet to work with irregular working hours and high work intensity. The current wage-based The key collective consultation has been expanded to a comprehensive collective consultation mechanism that includes labor standards such as working hours, and overtime pay is determined as appropriate by taking into account online overtime frequency, duration, wage standards, work content and other factors. Guide employers to include in labor contracts Define and compensate for the terms of offline rest rights, and agree on online overtime compensation standards.”
More than a year has passed since the "First Case of Invisible Overtime" was concluded. Wang Ziyuan needs to look through the documents for some details related to this case before answering.
But the impact of this case continues. A colleague took on a labor dispute case this year, and the other party told him that a party had already brought the judgment of this case to the arbitrator for reference.
Wang Ziyuan hopes that more people will see this case, "This is also a wake-up call for employers not to infringe on the rights of workers at will. It also makes more workers realize that if they face a similar situation, You can defend your rights.”
On March 13, a reporter called the Beijing Municipal Human Resources and Social Security Bureau. When mentioning invisible overtime and other related issues, the staff said that there are indeed new situations where workers still need to handle work through mobile phones after leaving the working environment. But at present, no new regulations and documents have been issued for this type of labor disputes. "Relevant laws and regulations were promulgated earlier. The Labor Law has been implemented since 1995. At that time, they were all working on-site at the unit. Indeed, they were not considered. The new situation of working online now.”
Staff said that according to current legal documents, if working hours need to be extended, the employer generally needs to negotiate with the labor union or with the employees, and extend the working hours with the consent of both parties.
In an interview with the media, Lu Guoquan said that the proposal has been filed.
The relevant departments will then communicate with them about the proposal and give a reply.
He will continue to focus on the issue, but the process may not happen overnight.
Lu Guoquan said that to solve this problem, theoretical departments, policy departments, legal departments, business departments, and the media must all participate together.
Because this new social problem is something that everyone and every industry will encounter and want to solve.
"I am confident about this. I think everyone will be able to explore a good way to protect workers' rights that is suitable for the digital economy or the new economy. China will also come up with ways to protect workers' right to offline rest." A good 'China solution'."
(Luo Ming and Zhong Lin are pseudonyms in the article)
Beijing News reporter Li Bingjie