How to define "overtime"? Are meetings, training, replying to work WeChat after work, and using holidays to organize team building count as overtime? Should overtime be paid for "online overtime"? A few days ago, the Supreme People's Court, the Ministry of Human Resources and Social Security, and the All-China Federation of Trade Unions jointly issued a typical case involving wage arrears disputes.
In a labor dispute case arising from online overtime, the Beijing No. 1 Intermediate People's Court determined the fact that the party had arrived at work on a three-day rest day based on the WeChat content submitted by the party and the company's attendance time, and at the same time ordered the company to pay the employee online overtime pay based on the party's overtime frequency, duration, wage standard, work content and other factors.
Wu Bowen, vice president of the Sixth Civil Division of the Beijing No. 1 Intermediate People's Court, said that "* overtime" violates the right to rest of workers, and it is of great significance to determine "* * overtime". First, it is conducive to the all-round development of people, so that workers have time and space to improve their own capabilities; second, it helps to restore the physical strength of workers and improve work efficiency; The third is to embody the protection of social fairness by the law. From a judicial point of view, there is no essential difference in the criteria for determining whether it is overtime in the traditional sense or "overtime", and the key is to see whether the labor force of the employee is still in a state of being controlled or used by the employer during non-working hours.
The innovation of the judgment lies in the fact that, based on the trend of breaking through the restrictions of work in the digital age, it recognizes the possibility that the work of employees will be recognized as overtime under circumstances such as scattered time, difficulty in real-time supervision, and lack of quantitative attendance. According to Shen Jianfeng, director of the Academic Committee of the Law School of the China Institute of Labor Relations, the court took "obviously occupying rest time", "providing substantive work content", and "using social ** work to be periodic and fixed" as key judgment factors in determining overtime, which not only grasped the essence of overtime in the legal sense, but also prevented the generalization of overtime determination.
However, in practice, there are still pain points that it is difficult for workers to provide evidence and identify "overtime". In the process of hearing relevant cases, Wu Bowen noticed that when determining the specific length of overtime, the employee can often only provide fragmentary evidence to prove the time when the employer arranges the work and the time when the employee delivers the results of the labor, which makes it difficult to determine the specific overtime time, and thus it is difficult to prove that the employee has continuous and regular overtime. In this case, the judge needs to determine the overtime hours according to the specific circumstances of each case and in accordance with the principle of fairness, so as to protect the legitimate rights and interests of the employer and the employee equally as much as possible. Wu Bowen said.
To be clear, not all "online work" counts as overtime. Shen Jianfeng believes that directly identifying a certain period of time as overtime reflected in the chat records is unfair to the employer and is not conducive to balancing the interests of both employers and employees. Wu Bowen believes that emphasizing the protection of the legitimate rights and interests of workers does not mean that only the interests of workers are protected in judicial adjudication. If the employee only communicates with the leader and colleagues on the job, which is occasional and temporary, and does not affect the employee's life and rest, it should not be recognized as overtime.
In the context of the digital age, the identification and proof of labor disputes need to be continuously improved in future precedents. Focusing on building harmonious labor relations and better protecting the rights and interests of workers and employers, experts suggest that workers should pay attention to collecting and preserving evidence in the face of first-class office and home work; Employers with a large number of online jobs should actively carry out communication and negotiation in light of their own actual conditions, clarify the rights and obligations of online overtime, and avoid disputes between employers and employees due to unclear rules. In addition, the development of digital communication technology and the changes in modern industries have made it common for many workers to be no longer confined to specific places, and it is common to contact employees anytime and anywhere to arrange work. Shen Jianfeng said that labor laws should be continuously improved and developed to meet the needs of the development of new working methods in the digital era and protect the rights and interests of workers in rest and family social life.
Kang Qiongyan Economy**.
*: The Paper.