How to calculate overtime pay for "online overtime"?
The court ruled that the employee should make a discretionary determination based on factors such as the frequency and duration of overtime work.
Receiving labor remuneration on time and in full is the most concerned right of workers. China has made clear laws and regulations on the working hours and overtime wages of employees, but compared with traditional overtime, the recognition of "online overtime" is special.
Can online work from home be considered overtime? How to calculate overtime pay for "online overtime"? On February 18, the reporter learned from the Beijing No. 1 Intermediate People's Court that in a case heard by the court, the court ruled that when determining the overtime pay for "online overtime", it comprehensively considered the frequency and duration of the employee's overtime, wage standards, work content and other factors, and determined it as appropriate.
According to the facts of the case, Li joined a company in April 2020 as the director of operations, and the two parties signed a labor contract with a period from April 8, 2020 to April 7, 2023, and agreed on a three-month probationary period, with a salary standard of 20,000 yuan per month during the probationary period.
During his tenure from April 8, 2020 to May 28, 2020, Mr. Li completed the work of replying to the design plan and improving the plan during non-working hours. On May 28, 2020, the company terminated the employment relationship on the grounds that Li did not meet the employment conditions during the probationary period and failed to pay him overtime pay.
Mr. Li believed that the company had illegal acts such as failing to pay overtime pay and applied for labor dispute arbitration. Later, Li was dissatisfied with the arbitral award and requested the company to pay overtime pay 196705 yuan, 26,331 yuan for overtime pay on weekends and other litigation claims. The court of first instance ordered the company to pay 10,000 yuan for overtime work. The company appealed to the Beijing No. 1 Intermediate People's Court.
The court held that overtime does not refer to a simple passage of time, and whether the determination of whether it is overtime and the conditions for overtime work need to be supported by specific work, and whether the employee is engaged in the work of the employer during that time period and whether the work is carried out by the employer as the result of the employer's additional assignment of work tasks should be comprehensively determined based on the employee's job situation, the business characteristics of the employer, and the standard of remuneration payment.
According to this, Li's work is characterized by the fact that after the company's leaders give instructions to him, he needs to reply to the leaders in a short period of time to design the plan, work requirements, plan improvement and other work. Combined with the WeChat chat records submitted by Li, it can be proved that he engaged in the company's work after work, and it can be determined that Li worked overtime.
In this case, the WeChat content submitted by Li alone could not prove the specific overtime hours of Li. Based on the WeChat content submitted by Li, the attendance time of the company as described by Li, and Li's salary standard, the trial court determined that the company should pay Li 10,000 yuan in overtime pay.
The Beijing No. 1 Intermediate People's Court rejected the appeal and upheld the original judgment, upholding the workers' right to receive labor remuneration.
Online overtime occurs during non-working hours and non-working locations, and work arrangements and results submission have shifted from offline to online, which is characterized by home-based and fragmentation. Judge Wu Bowen of the Beijing No. 1 Intermediate People's Court said, "Unlike overtime work in the traditional sense, 'online overtime' has problems such as it is difficult for employers to supervise and manage employees in real time, and it is difficult for employees to provide evidence to prove their overtime hours." ”
Wu Bowen told the reporter of "Worker**" that whether it constitutes "online overtime" can be judged from two aspects: working hours and work content.
If the employer arranges for the employee to carry out a single long-term online communication or meeting through social networking, or frequently communicates about the work content within a certain period of time, or the online work has obvious periodic or fixed characteristics, it may be deemed that the employee's rest time is obviously occupied and can be found to be overtime. Wu Bowen said.
From the perspective of work content, it should be judged whether the employee has provided substantive work under the arrangement of the employer in light of the employee's job position. Wu Bowen said that on the one hand, it is necessary to confirm that the worker has provided substantive labor, and if it is only an occasional sentence or two of simple communication, it should not be determined that there is a fact of overtime. On the other hand, the labor should be provided under the arrangement of the employer, which not only complies with the provisions of the law, but also avoids the situation that the employee has to pay overtime pay during working hours and working after hours. (Reporter Lu Yue).
*:Worker**.