Working overtime during the Spring Festival, did you get the right overtime pay?
The Spring Festival is a traditional festival of the Chinese nation and a legal holiday in China. However, some workers remained at work during the Spring Festival holiday.
So, how to calculate overtime pay for overtime during the Spring Festival?
In judicial practice, some employees do not have a good understanding of the legal knowledge of overtime work during the Spring Festival statutory holidays, or lack the awareness of evidence retention, resulting in the loss of their rights and interests in overtime pay.
In order to protect the legitimate rights and interests of workers, the People's Court of Haidian District, Beijing Municipality announced two cases to sort out "how to protect the rights and interests of overtime pay during the Spring Festival" for workers. Spring. Section.
One. Spring Festival overtime pay.
Should I be paid twice or triple my salary?
Facts of the case. 
Zhang is a cashier in a supermarket, and in recent years, during the Spring Festival holiday every year, the supermarket needs to arrange Zhang to work overtime due to normal business. After the holiday, the supermarket will pay overtime pay to employees who work overtime during the Spring Festival holiday according to the standard of twice the salary per day. Later, Zhang proposed to terminate the labor contract on the grounds that the supermarket had not paid overtime pay in full for many years, and through litigation procedures, demanded that the supermarket pay the severance for the termination of the labor contract and the difference in overtime pay on statutory holidays.
After trial, the court held that the employer held that the employer held that the employer held a holiday during the Spring Festival (the beginning of the year).
First, the beginning. 2. 3) If an employee is arranged to work overtime, the employee shall be paid overtime pay of not less than 300% of the salary.
In this case, during the Spring Festival holiday, the supermarket paid Zhang 200% of his salary for overtime on statutory holidays from the first to the third day of the junior high school, and there was a difference and should be paid. Overtime pay is wages, and Zhang terminated the labor relationship on the grounds that he had not paid overtime pay in full, and the supermarket should pay Zhang severance for terminating the labor contract.
Tell the story by case. Article 51 of the Labor Law of the People's Republic of China stipulates that the employer shall pay wages to employees on statutory holidays, marriage and funeral leave, and during their participation in social activities in accordance with the law. According to the Notice of the former Ministry of Labor on Issues Concerning the Conversion of Employees' Average Monthly Working Hours and Wages (2008), in accordance with Article 51 of the Labor Law, employers shall pay wages on statutory holidays in accordance with the law, i.e., the 11 statutory holidays stipulated by the state shall not be excluded when converting daily wages and hourly wages.
It can be seen that the rest on the statutory holiday is the normal payment of wages, if the employee is on the statutory holiday (the beginning.
First, the beginning. 2. The third day of the junior high school is rested, and the salary is still calculated normally; If the employer arranges for the employee to be at the beginning.
First, the beginning. In addition to the normal wages of the day, the workers are also entitled to overtime pay of not less than 300% of the wages in addition to the normal wages of the day. And for the Spring Festival holiday, except for the beginning of the year.
First, the beginning. The rest of the period of the second and third years of the junior high school is a rest day, and if the employee is assigned to work overtime, he or she is entitled to overtime pay of not less than 200% of his salary.
Judge's tip. Workers have the right to rest and leave in accordance with the law. Overtime work refers to the employer's use of the employee's rest time to arrange the employee to work outside the standard working hours.
Judge's assistant Zhen Yiyi reminded employers that wages should be paid to the workers themselves in the form of money on a monthly basis, and that wages should not be deducted or owed to workers without reason. At the same time, the employee is reminded that the limitation period for applying for arbitration of labor disputes is one year, and overtime pay is an integral part of the total salary, that is, it should be filed within one year from the date of termination of the labor relationship, and the rights should be claimed in a timely manner in accordance with the law.
One. Comprehensive calculation of working hours".
It can be exempted from paying overtime pay on statutory holidays.
Reason?
Facts of the case.
Through the approval procedures of the labor administrative department, a property management company implements an irregular working hours system and a comprehensive calculation of working hours on an annual cycle for some positions such as security guards. Feng was arranged to work as a doorman in a residential community, implementing the "three shifts" work system of the day and night shifts, and Feng could not rest during the Spring Festival holiday every year, but a property company never paid Feng overtime pay on statutory holidays. Later, Feng went through litigation procedures to demand that a property management company pay overtime pay on statutory holidays during the Spring Festival.
After trial, the court held that Feng was engaged in janitor work and was arranged to stick to his post during the Spring Festival, and it would be Feng's turn to work from the first to the third day of the Lunar New Year every year. The difference between the comprehensive calculation of working hours and the standard working hours system lies in the daily working hours, the length of the working hours calculation period and the guarantee of rest days, while there is no difference between the provisions on statutory holidays.
Therefore, a property management company should pay Feng overtime pay on statutory holidays during the Spring Festival according to the overtime hours from the first day to the third day of the new year as stated in the schedule.
Tell the story by case. Article 39 of China's Labor Law stipulates that if an enterprise is unable to implement the provisions of Articles 36 and 38 of this Law due to the characteristics of production, it may implement other work and rest methods with the approval of the labor administrative department. Article 62 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China issued by the former Ministry of Labor stipulates that employees of enterprises that implement the system of comprehensive calculation of working hours and work day are considered to be normal work if their working day happens to be a weekly rest day; If the working day falls on a statutory holiday, the wages and remuneration of the employees shall be paid in accordance with the provisions of Article 44 (3) of the Labor Law.
In this case, a property management company was approved by the labor administrative department to implement a comprehensive calculation of working hours, and the cycle of calculating working hours under the working hours system was based on weeks, months, quarters, and years, and the working hours of working days and rest days in the cycle were cumulative, and the overall accounting of working hours was considered normal work if it did not exceed the statutory standards. However, if you are arranged to work overtime on statutory holidays, you still need to pay overtime pay of not less than 300% of your salary.
Judge's tip. China's working hours system is usually divided into three types: standard working hours system, comprehensive calculation of working hours system, and irregular working hours system. According to Article 44 (3) of the Labor Law, if an employee is assigned to work on a statutory holiday, he or she shall be paid a wage remuneration of not less than 300% of the wage. China's labor laws and regulations do not exempt employers from the obligation to pay overtime pay on statutory holidays under the comprehensive calculation of working hours, so the implementation of the comprehensive calculation of working hours system cannot be an excuse for employers to refuse to pay overtime pay on statutory holidays.
It should be reminded that Article 42 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases stipulates that if an employee claims overtime pay, he or she shall bear the burden of proof for the existence of overtime work. However, if the employee has evidence to prove that the employer has evidence of the existence of overtime work, and the employer fails to provide it, the employer shall bear the adverse consequences. When an employee claims overtime pay on statutory holidays during the Spring Festival, he or she shall bear the burden of proof for the fact that overtime is working on statutory holidays, and common evidence such as overtime approval forms, attendance records, wage slips, overtime records, labor processes, labor results, etc., should pay attention to retaining relevant evidence and protect their legitimate rights and interests in obtaining overtime pay during the Spring Festival in accordance with the law.
Editor of this issue: Zhou Qian.