The Spring Festival has just passed, and during the holidays, there are still many workers working hard. If they sacrifice the good time to reunite with their families and rest, can they claim overtime pay from their employers? If so, how can I claim overtime?
Tip 1: Be clear about the "working hour system"!
Workers should be aware of the working hours that apply to their positions.
According to the Labor Law of the People's Republic of China and relevant regulations, the state implements a working hour system in which the daily working hours of employees shall not exceed eight hours and the average weekly working hours shall not exceed 44 hours, and the employer shall ensure that the employees have at least one day off per week, i.e., the standard working hours system. If an enterprise is unable to implement the standard working hours system due to the characteristics of production, it may implement other work and rest methods with the approval of the labor administrative department. According to this, there are three types of working hours system in China, namely the standard working hours system, the comprehensive calculation working hours system and the irregular working hours system.
According to the Beijing Municipal Regulations on Payment of Wages, if an employer has been approved to implement a system of comprehensive calculation of working hours, the employer shall calculate the wages of the employee according to the actual working hours of the employee during the period of comprehensive calculation of working hours. The part of the total actual working hours of the worker that exceeds the total standard working hours shall be regarded as extended working hours, and overtime wages shall be paid at the rate of 150% of the wage base; Where workers are arranged to work on statutory holidays, overtime wages shall be paid at 300% of the wage base. If the employer is approved to implement the irregular working hours system, the provisions of Article 14 of these Provisions shall not apply, that is, the employer is not required to pay overtime wages.
Therefore, Beijing stipulates that if an employee's position is subject to irregular working hours, the employee cannot claim overtime pay. The employer shall pay overtime wages at 300% of the wage base if the employee is assigned to work on statutory holidays. If the employer arranges the employee to work in other periods, it shall depend on whether the total actual working hours of the employee exceed the total standard working hours during the comprehensive calculation of working hours, and if the total standard working hours are exceeded, it shall be deemed to have extended working hours, and overtime wages shall be paid at 150% of the wage base. Therefore, under the comprehensive calculation of working hours, there is no 200% wage for overtime work on employees' rest days.
Tip 2: The nature of overtime should be distinguished!
It is necessary to distinguish whether it is overtime on statutory holidays or rest days, and different calculation standards apply.
According to the relevant provisions of the Labor Law of the People's Republic of China, if an employee is assigned to work on a rest day and cannot arrange a compensatory break, he shall be paid a wage remuneration of not less than 200% of the wage; If a worker is assigned to work on statutory holidays, he or she shall be paid a wage remuneration of not less than 300 percent of his wages.
According to China's "National Festival and Memorial Day Holiday Measures" (2013.).12.11 revision) stipulates that there are a total of 11 statutory holidays throughout the year
1) New Year, 1 day off (January 1);
2) Spring Festival, 3 days off (at the beginning of the first lunar month.
First, the beginning. 2. The third year of junior high school);
3) Ching Ming Festival, 1 day off (on the day of Ching Ming in the lunar calendar);
4) Labor Day, 1 day off (May 1);
5) Dragon Boat Festival, 1 day off (on the day of the Dragon Boat Festival in the lunar calendar);
6) Mid-Autumn Festival, 1 day off (on the day of the Mid-Autumn Festival in the lunar calendar);
7) National Day, 3 days off (October 1, 2, 3).
Therefore, the above 11 days are statutory holidays, and if the employee works overtime, the employer shall pay 300% of the overtime wage of the wage base, and if the employee works overtime, the employer shall pay 200% of the overtime wage if the employee works overtime.
Tip 3: Master the calculation method!
How is the wage base for overtime pay calculated?
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. Accordingly, the daily wage and hourly wage are converted as:
Daily wage = monthly salary income Number of days in the month.
Hourly wage = monthly wage income (8 hours of paid days per month).
Monthly payroll days (365 days-104 days) December 2175 days.
Tip 4: Two "Attentions" to know!
As an employee, what other issues do you need to pay attention to if you want to claim overtime pay?
First, we must pay attention to presenting evidence. If an employee claims overtime pay, he or she shall bear the burden of proof on 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. The evidence to prove overtime generally includes attendance records, overtime approval forms, work records during overtime, overtime reimbursement vouchers, chat records with leaders, audio and video recordings, and worker certificates, etc., as long as the employee can provide preliminary evidence, the burden of proof is shifted to the employer. The employer generally has evidence such as whether the employee works overtime, the specific overtime hours and the length of the overtime hours, and if the employer fails to provide it, it will bear the adverse consequences, and the presumption that the employee's claim is established.
The second is to pay attention to the timeliness requirements. Article 27 of the Law on Mediation and Arbitration of Labor Disputes stipulates that the limitation period for applying for arbitration of labor disputes is one year. The limitation period for arbitration shall be calculated from the date on which the parties knew or should have known that their rights had been infringed. If the statute of limitations for arbitration provided for in the preceding paragraph is interrupted because one of the parties claims rights against the other party, or requests rights and remedies from the relevant authorities, or the other party agrees to perform its obligations, the limitation period for arbitration shall be recalculated from the time of interruption. Where the parties are unable to apply for arbitration within the limitation period provided for in paragraph 1 of this Article due to force majeure or other legitimate reasons, the limitation period for arbitration shall be suspended. The limitation period for arbitration shall continue to run from the date on which the reasons for the suspension are eliminated. If a dispute arises due to arrears of labor remuneration during the existence of the labor relationship, the employee's application for arbitration is not subject to the one-year limitation period for arbitration; However, if the labor relationship is terminated, it shall be filed within one year from the date of termination of the labor relationship. Since overtime pay is also a labor remuneration, the statute of limitations for an employee's claim for overtime pay is filed within one year from the date of termination of the automatic relationship.
Links to legal provisions. Labor Law of the People's Republic of China
Article 36 The State implements a system of working hours in which the daily working hours of workers shall not exceed eight hours and the average weekly working hours shall not exceed forty-four hours. Article 37 The employer shall reasonably determine the labor quota and piece-rate remuneration standards for laborers who work on a piece-rate basis in accordance with the working hours system provided for in Article 36 of this Law. Article 38 The employer shall ensure that the worker has at least one day off per week. Article 39 Where an enterprise is unable to implement the provisions of Articles 36 and 38 of this Law due to the characteristics of production, it may, with the approval of the labor administrative department, implement other work and rest measures. Article 40 An employer shall arrange leave for its employees during the following holidays in accordance with law:
a) New Year's Day; 2) Spring Festival;
3) International Labor Day;
4) National Day;
5) Other holidays and holidays as provided for by laws and regulations.
Article 44 In any of the following circumstances, the employer shall pay the wages and remunerations higher than the wages of the workers for normal working hours in accordance with the following standards:
1) Where a worker is arranged to work longer hours, a wage remuneration of not less than 150 percent of the wage shall be paid;
2) If a worker is assigned to work on a rest day and cannot be arranged for a compensatory holiday, a wage remuneration of not less than 200 percent of the wage shall be paid;
3) If a worker is assigned to work on a statutory holiday, he or she shall be paid a wage remuneration of not less than 300 percent of his wages.
Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (I).
Article 42 Where a worker 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.
Beijing Municipal Regulations on Payment of Wages
Article 14 Where an employer arranges for a worker to work outside the standard working hours in accordance with the law, it shall pay the worker overtime wages in accordance with the following standards:
1) If the working hours are extended beyond the standard working hours of the day, overtime wages shall be paid at a rate not less than 150 of the hourly wage base;
2) Those who work on rest days shall be arranged to take compensatory rest at the same time, and if they cannot arrange compensatory leave, they shall be paid overtime wages at a rate not less than 200 of the daily or hourly wage base;
3) Those who work on statutory holidays shall be paid overtime wages at a rate not less than 300 per day or hourly wage. Article 16 Where an employer has been approved to implement the system of comprehensive calculation of working hours, the employer shall calculate the wages of the workers according to the actual working hours of the workers during the period of comprehensive calculation of working hours; The part of the total actual working hours of the worker that exceeds the total standard working hours shall be regarded as extended working hours, and overtime wages shall be paid in accordance with the provisions of Article 14, Paragraph (1) of these Provisions; Where workers are arranged to work on statutory holidays, overtime wages shall be paid in accordance with the provisions of Article 14 (3) of these Provisions. Article 17 Where an employer has been approved to implement the irregular working hours system, the provisions of Article 14 of these Provisions shall not apply.
Contributed by: Fengtai Court.
Editor: Yang Shixia Guo Jin.
Review: Zhang Lei.