For the first time in this year's "Two Highs" report, terms such as "invisible overtime" and "offline rest rights" appeared. The labor dispute case of "invisible overtime" has also been selected as one of the "Top 10 Cases to Promote the Rule of Law in the New Era in 2023". This is the first case in China where the issue of "invisible overtime" is explicitly stated in a judgment document, and for the first time, relevant recognition standards have been proposed for the use of social media such as WeChat for invisible overtime. "Invisible overtime" means to complete work tasks during break time, and work overtime anytime and anywhere using the Internet and communication software. This kind of overtime completely mixes work time with personal time, without being able to enjoy overtime pay, making workplace workers unknowingly "overtime.". The salary of 5000 yuan and 46 job groups reflect the issue of the employer's overtime system that needs to be standardized. "Overtime approval system" ≠ No need to pay overtime pay. Zhang is a backend development engineer of a certain network company, and he has agreed with the company to implement the standard working hour system. Both parties agree in the contract that "if employees need to work overtime, they should fill out an overtime application form and obtain approval from the company. Failure to complete the overtime approval procedures will not be considered as overtime.". But every Friday afternoon after work, Zhang's leader requires everyone in the department to attend the department summary meeting, which takes about an hour each time. Later, Zhang requested the company to pay delayed overtime pay through legal proceedings. The court ruled that the WeChat chat records submitted by Zhang can confirm that he worked overtime under the arrangement of the company, rather than initiating it himself. Although the company argues with the "overtime approval system," it cannot deny the fact that Zhang's overtime was arranged by the company. Zhang is arranged by the company to provide overtime work, and the company should pay overtime pay. Judge Dong Hongchen from the Haidian District People's Court in Beijing told a reporter from the Legal Daily that in practice, the "overtime approval system" is a common defense raised by some employers who do not agree to pay overtime pay. According to Article 44 of the Labor Law of China, if an employer arranges for workers to work overtime, they shall pay overtime pay. Therefore, even if an employee works overtime without approval procedures, if the employee can provide evidence that the overtime is arranged by the employer, it can still be recognized as overtime and the employer should pay overtime pay. Dong Hongchen said that currently, employers arrange for workers to work overtime, which can be divided into "institutional overtime" and "mandatory overtime". "Institutional overtime" means that the working hours set by the employer themselves exceed the statutory working hours. In this case, the employee does not need to provide additional evidence regarding the overtime hours. "Directive overtime" refers to the employer clearly notifying the employee to work overtime, and the employee works overtime based on the arrangement of the employer or department leader. The employee's direct supervisor or department leader represents the employer to exercise the right to work management over the employee, which is considered a duty behavior. The above arrangement can also be considered as overtime arranged by the employer, and the employee does not need to apply separately. It must be pointed out that the original intention of designing the overtime approval system was to promote employers to standardize overtime management, control operating costs, and protect the legitimate rights and interests of workers in accordance with the law. However, some employers regard the overtime approval system as a threshold or even an obstacle, maliciously damaging the legitimate rights and interests of workers. Such behavior will bear legal responsibilities in accordance with the law. Dong Hongchen said. Arranging overtime beyond the legal limit: illegal self entry
Edit：Ying Ying Responsible editor：Shen Chen
Source：http://www.legaldaily.com.cn
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