During the off-duty period, even on rest days, employees should always pay attention to the wechat work group and reply to customer information in a timely manner。Such a situation, perhaps many people have become accustomed to。不过，Mr. Zhang in Wuhan, however, believes that this is also overtime, and the company should pay for it, so he has taken the company to court。Yangtze River news special report on this。
Mr. Zhang joined a vegetable group buying company in May 2021, when the two sides signed a two-year labor contract, agreeing on a monthly salary of 16,000 yuan and working eight hours a day。Although the daily working hours are specified in the contract, Zhang often uses wechat to handle work during off hours and works late into the night at home。But in fact, both sides also admit that Zhang needs to work 6 days a week, because Zhang is in the vegetable group buying company, consumers place orders from time to time, often after he gets off work, employees find him through wechat to deal with some urgent things, such as quotes, Zhang will reply and deal with。The company believes that Zhang's salary is relatively high, and the nature of the work determines that he needs to provide labor and services to the company from time to time, so the company is not willing to pay related overtime costs。
According to Article 44 of the Labor Law of the People's Republic of China, workers who arrange to extend working hours shall be paid no less than 150% of their wages。Where rest days are arranged for laborers to work and compensatory rest cannot be arranged, no less than 200% of wages shall be paid。Where workers are arranged to work on statutory holidays, they shall be paid not less than 300% of the wage remuneration。The final judgment was that the company had to pay Mr. Zhang nearly 50,000 yuan in overtime wages。
With the development of economy and the progress of Internet technology, the working mode of workers is more and more flexible, and they can use mobile phones or computers.If employees deal with their work through social media such as wechat after work, is it considered as invisible overtime？Should employers pay overtime？Hubei Luojia Law Firm lawyer Sun Jinshuo was invited by Changjiang News column to interpret the relevant legal details。
Lawyer Sun analyzed that China's relevant laws stipulate that overtime pay refers to the wages paid by the employer to the worker in excess of the normal working hours of the worker, which belongs to a component type of wages。So, under what circumstances does the company need to pay overtime？This is related to the working hour system implemented by the employer。There are three kinds of working hours system, standard working hours system, variable working hours system and comprehensive working hours system。Under normal circumstances, if the standard working hour system exceeds the normal working hours, the employer shall pay overtime。Companies with irregular working hours are not required to pay overtime。
Where an employing unit arranges employees to work on statutory holidays, it shall still pay overtime pay not less than 300% of its own wage standard。Where the comprehensive working hour system is implemented, if the comprehensive working hour exceeds the statutory standard, the working hour shall be deemed to be extended and overtime pay shall be paid。
Sun further said,The problem of invisible overtime during non-working hours should not be limited to the workplace of the employer, but should take into account whether the worker deals with work affairs outside of non-working hours, whether he has paid substantial labor, and whether he has occupied the rest time of the worker。If the laborer has paid substantial labor, it shall be deemed as overtime work。Of course, not all home office and wechat office are counted as overtime。If the simple communication is accidental and temporary, and does not affect the life rest of the worker, it should not be identified as overtime。
While the social software is used to invisible overtime work, the parties are not strange about the implicit deprivation of workers' overtime rights and interests, and neglect to protect them。Relevant departments should also be more standardized, more lines, from the legal level to form a closed loop to safeguard the rights and interests of workers。In the face of invisible overtime, it cannot be invisible。The court's decision to count wechat office as overtime work in the above cases not only protects the rights and interests of workers, but also highlights the concept of advancing with The Times in judicial practice, and highlights the explicit protection of the hidden overtime rights and interests of workers by the court when applying the law。
Profile of lawyer Sun Jinshuo
Sun Jinshuo lawyer, male, Master of Law from Wuhan University, full-time lawyer of Hubei Luojia Law Firm。Handled hundreds of cases，Business areas include enterprise management, real estate development, bankruptcy liquidation, intellectual property rights, corporate mergers and acquisitions，During the practice period, he provided perennial legal counsel services for central enterprises, state-owned enterprises and public institutions such as Zhongcheng Run (Hubei) City Investment Development Co., LTD., Wuhan Wuyang Expressway Investment Management Co., LTD., Wuhan University Press, Hubei Bank Co., LTD., Hubei Bank Co., LTD. Small Business Financial Service Center, Hubei Radio and Television Station，It also provides litigation and arbitration services for state-owned enterprises and listed enterprises such as China Construction Bank Investment Co., LTD., Wuhan University Asset Management Co., LTD., Hubei Branch of Shaanxi Construction Investment Co., LTD., China Construction Sixth Bureau Civil Engineering Co., LTD., Hubei Radio and Television Information Network Co., LTD。In terms of criminal cases, he defended the suspected criminal cases of China Construction X Bureau, xx Province Electric Power Construction X Engineering Company, and Hubei XX Radio and Television Advertising Company, and achieved innocence or immunity from criminal punishment。