More and more people find themselves as if they have "taken a vacation shift" every day, although the body has left the workplace, people still maintain the state of work, and may receive work notices and even invitations to meetings on their mobile phones at any time, if they fail to reply in time, they will be accused of "not being serious and responsible", and there is still an illusion of going to work after work.
Recently, the country's first case of "** overtime" caused by replying to work messages after work has been decided!
Case review. In this year's work report of the Beijing High People's Court, a case of "overtime" involving the use of social software such as WeChat was mentioned.
In this case, the employee, Mr. Li, sued the company for overtime pay from December 21, 2019 to December 11, 2020. The overtime content advocated by Li is the labor he paid to communicate with customers or colleagues in WeChat or DingTalk and other software after work. However, the company argued that this was not overtime.
After the trial, the Beijing No. 3 Intermediate People's Court held that Li's use of social work during the off-duty hours and rest days on some working days had gone beyond the scope of simple communication, and that the work content had the characteristics of periodicity and fixity, which was different from temporary and occasional general communication, and reflected the characteristics of the employer's management and employment, and should be determined to constitute overtime, and accordingly ruled that the company should pay Li 30,000 yuan in overtime pay.
It is reported that this case is the first case in the country to clarify the issue of "overtime" in the judgment document.
The judgment of this case creatively put forward the principle of "providing work substance" and the principle of "obviousness of occupied time" as the criteria for determining the issue of "** overtime", and recognized the use of WeChat to pay substantive labor after work as overtime in accordance with the law, so as to protect the employee's "right to offline rest".
In fact, the phenomenon of "overtime" is not a new problem. In the context of the digital age, this phenomenon is constantly spreading, and the determination and proof of overtime will continue to improve in more and more precedents. The issue of overtime has always been a key issue in labor-management relations, and the 996 and even 007 systems of major Internet companies have pushed the issue of overtime to the forefront.
So under the standard working hours, what is overtime, the upper limit of overtime hours and how should enterprises avoid the risk of overtime have become worthy of the question, and the root of this series of problems lies in the understanding of the concept of "overtime" and the analysis of the risks that enterprises may face.
Common misunderstandings and risks of overtime in enterprises.
1.Failure to complete normal work tasks, delayed work, no overtime pay;
2.Piecework wages are more work, and overtime pay can be waived;
3.If the employment contract stipulates a special working hour system, there is no need to pay overtime pay.
4.As long as overtime is paid, employees must obey the overtime arrangement;
5.Employees who are arranged to work overtime on statutory holidays can be compensated after the holiday, and overtime pay will not be paid;
6.The contract stipulates a 6-day work week, and the default salary includes overtime pay
7.The company has stipulated an overtime approval system, and voluntary overtime is considered without procedures;
8.After DingTalk clocks in, the WeChat group arranges work, which is not counted as overtime;
9.The enterprise agrees on its own overtime hourly wage, which is lower than the minimum wage standard;
10.The pay slip does not specify the overtime pay, and the pay slip is not signed by the employee.
For enterprises, overtime is unavoidable, but the risk of overtime can be avoided.
How can companies avoid the risk of overtime?
1. Formulate a clear overtime system.
The inclusion of overtime management clauses in the company's rules and regulations is not only a necessity for employers in management, but also an important guarantee to effectively avoid legal risks.
In practice, many companies do not include the application process for overtime and the relevant penalty treaties when formulating employee handbooks or articles of association, or even do not formulate employee handbooks at all. As a result, when a company has a labor dispute with an employee over overtime pay, it often falls into a passive situation due to insufficient evidence or no basis.
2. Implement the overtime system in accordance with the law.
Laws and regulations also have restrictions on overtime hours, generally not more than 1 hour per day, 3 hours per day under special circumstances, and 36 hours per month.
It should be noted that the company shall not arrange extended working hours for female employees who are more than 7 months pregnant or who are breastfeeding a baby under the age of 1.
3. Clarify the calculation methods and standards of overtime wages.
If the company increases the work intensity of employees due to business needs, it should pay attention to giving employees reasonable compensation for overtime pay within the scope of the law.
When signing a labor contract with an employee, the company may clearly stipulate the wages for normal working hours, and at the same time agree that the bonuses and allowances that the company should pay to employees are not wages for normal working hours. Secondly, it is necessary to specify the working hours system in the contract as one of the bases for whether the employee has overtime.
Clarify the salary composition, such as: overtime pay, overtime expenses, bonuses, subsidies, etc.
Overtime pay is the most common type of labor dispute, and the most difficult thing for enterprises to prove is to provide evidence for such disputes, so it is particularly important to clarify the rules and regulations for "overtime pay".
In the process of business development, labor disputes are inevitable, and how to minimize employment risks is a practical topic that every enterprise must face. Therefore, in order to avoid unnecessary employment risks, enterprises must arm the company with legal standards to achieve labor and employment compliance, and at the same time prevent legal risks from the source.
Finally, the overtime system is based on the need to protect the basic human rights of employees and take into account the efficiency of the employer, so the employer can appropriately extend the working hours of employees in order to improve the efficiency of the enterprise, but on the basis of protecting the employees' right to rest and health, it should legally and reasonably arrange for employees to work overtime and rest.