Is it overtime for employees to punch in and report work through mobile apps such as WeChat during breaks? Should the employer pay overtime for this? On January 8, the Intermediate People's Court of Nanjing Municipality, Jiangsu Province, announced the verdict of a labor dispute case in which a hotel executive who was required to clock in and report on his work results in a WeChat work group late at night on the weekend sued the hotel for overtime wages, and finally the court decided that the hotel should pay him a total of 240,000 yuan. (See Yangtze Evening News, January 9).
In another typical case of "WeChat overtime", another worker's claim for rights protection was upheld by the court. Previously, employees using WeChat and other software to communicate and report work "outside of eight hours" counted as overtime, which has sparked multiple rounds of discussion. The Nanjing case once again released a positive signal, which will help to further consolidate judicial and social consensus, and clarify the concept, circumstances, scope and recognition standards of off-site overtime and non-traditional overtime.
In fact, regardless of the form of overtime, it should be qualitatively necessary for the employee to provide a certain amount of substantial work during non-working hours. The public is concerned that with the spread of the Internet and the diversification of work styles, the standards for determining jobs, workplaces, and work styles should also keep pace with the times, such as whether they can be further flexible, virtualized, and expanded. In addition to the traditional workplace, whether other places that can be "linked" with work should be included in the scope of the workplace, and whether online punch-in, reporting, and meetings should be included in the recognition of "work" will be a problem faced by many workers.
For this type of labor dispute case, many courts have held that the worker's work through WeChat and other social networks during non-working hours goes beyond the scope of ordinary simple communication and pays substantive labor, and this kind of labor has the characteristics of periodicity, regularity, fixity, etc., which occupies the employee's rest time, so it is determined that "WeChat report" and "WeChat office" during non-working hours belong to overtime.
The positive significance of this judicial characterization lies in the fact that it confirms working hours, online overtime, implicit overtime, and new types of overtime outside the traditional workplace, expands the concept of workplace and overtime, and not only protects the rights and interests of employees in individual cases, but also has a general educational, exemplary and leading significance for employers, workers, other courts and labor arbitration institutions.
With regard to new types of overtime phenomena and problems such as WeChat overtime, local courts at all levels, labor arbitration institutions, trade unions, and human resources and social security departments should strengthen their attention and research, grasp their rules and characteristics, use a case to protect their rights, delineate the boundaries of overtime rights, clarify the elements, conditions, and standards for identification, and form a standardized and unified identification mechanism to provide comprehensive protection for the rights and interests of workers. At the same time, we will carry out more activities to explain the law through cases, guide employers to take a correct view of overtime, and improve the rules and regulations related to overtime. In addition, it guides workers to have a more accurate understanding and cognition of overtime, and is good at expressing rights protection claims through communication, negotiation, and initiating labor arbitration.