In recent years, "* overtime" has caused trouble to many workers, who have clearly paid their energy and occupied rest time, but they have not been rewarded as they should be, which is undoubtedly unfair to workers. In the Internet era, a large number of jobs have been transferred online, and many workers still need to respond in a timely manner after work, but because they are out of the workplace and the way of working is more flexible, this part of the labor is often not recognized as overtime by the employer.
[Basic Facts of the Case].
Ms. Li previously worked for a technology company as a product operation position. It is now asserted that a technology company should pay it overtime pay from December 21, 2019 to December 11, 2020. Ms. Li advocates overtime in the software to communicate with customers or colleagues, and she said that she is an operation position, and her job responsibilities are to build the operation organization structure, be responsible for the overall operation of the program, manage the content team, be responsible for the formulation and implementation of the launch plan, study the advantages and disadvantages of the product and do tracking, and be responsible for business development. Regarding overtime, the employment contract stipulates the implementation of an irregular working hours system, and a technology company admits that it has not carried out the approval of the irregular working hours system.
Ms. Li asserted that she had worked overtime and that the company did not pay her overtime pay. Ms. Li submitted evidence such as chat records and the "Duty Schedule of the Official Account of the Holiday Community" to file a civil lawsuit against the company.
A technology company believes that Ms. Li is the head of the operation department, and after work, if the company has something, other employees call Ms. Li for ** consultation, which is not overtime.
[Case Interpretation].
The focus of the dispute in this case is whether communicating with customers and colleagues on chat software after work counts as overtime.
Obviously, Ms. Li's use of social work during the off-duty hours and rest days on some working days has gone beyond the scope of simple communication, and the work content has the characteristics of periodicity and fixity, which is different from temporary and occasional general communication, and reflects the characteristics of the employer's management and employment, and should be deemed to constitute overtime.
In order to protect the employee's "right to offline rest", the court recognized the substantive labor paid by social ** after work as overtime in accordance with the law. With regard to the problem of hidden overtime by such employees, overtime should not be denied simply because the employee did not work in the employer's workplace, but the concept of the workplace should be blurred, and whether the employee has provided substantive work content should be comprehensively considered to determine the overtime situation. In the case of using social ** to carry out work, if the employee's use of social ** to carry out work during non-working hours has gone beyond the scope of ordinary simple communication, and the employee has paid substantial labor content or the use of social ** work has the characteristics of periodicity and fixedness, and obviously occupies the employee's rest time, it shall be deemed to be overtime.
[Legal basis].
Article 31 of the Labor Contract Law of the People's Republic of ChinaEmployers shall strictly enforce labor quota standards and shall not force or covertly compel workers to work overtime. If an employer arranges overtime, it shall pay overtime pay to the employee in accordance with the relevant provisions of the state.
Article 6 of the Measures for the Examination and Approval of the Implementation of the Irregular Working Hours System and the Comprehensive Calculation of Working Hours by EnterprisesFor employees who implement other work and rest methods such as irregular working hours and comprehensive calculation of working hours, enterprises shall, in accordance with the relevant provisions of Chapters I and IV of the Labor Law of the People's Republic of China, on the basis of ensuring the health of employees and fully listening to their opinions, adopt appropriate methods such as centralized work, centralized rest, alternate rest and flexible working hours to ensure the employees' right to rest and leave and the completion of production and work tasks.
Article 7 of the Measures for the Examination and Approval of the Implementation of the Irregular Working Hours System and the Comprehensive Calculation of Working Hours System by Enterprises** Directly affiliated enterprises that implement other work and rest methods such as irregular working hours and comprehensive calculation of working hours shall be reviewed by the competent department of the industry and approved by the labor administrative department.
The examination and approval measures for other work and rest methods such as the irregular working hours system and the comprehensive calculation of working hours working system in local enterprises shall be formulated by the people's labor administrative departments of all provinces, autonomous regions and municipalities directly under the Central Government, and shall be reported to the labor administrative departments for the record.