A man was assigned to a project site by his company. As there was no computer or network on the site, he had to work overtime to write the tender in a hotel room. However, the company refused to pay for his overtime work on the grounds that he did not meet the company¡¯s regulations by punching in at a hotel room. What should the man do?

[Case Review]

Ding used to work as a bidding manager for a construction company, and he was assigned to a project site during the probation period. Before the probation period ended, Ding and the company signed the contract to terminate their labor relationship. But the company did not pay for his overtime work.

Ding said that he was working overtime during the weekends and the Labor Day holiday. Although he was working at a hotel room, there was a reason: There was no computer or access to the internet on the project site, so he had to write the tender in the hotel. Therefore, the company should pay for his overtime work in accordance with the law, which should be twice his regular rates of pay for weekends and three times for public holidays.

The company argued that employees working outside the company are required to punch in and share their location with the HR department twice a day, between 8:30-12:00 in the morning and 1:00-5:30 in the afternoon. And Ding had failed to do so, so it refused to pay for his overtime work.

[Case Study]

According to the Shanghai Chongming District People¡¯s Court, since the project site where he worked had no access to the internet, it makes sense for Ding, as a bidding manager, to make the tender in a hotel room. The fact of his working overtime cannot be denied just because he did not punch in according to the company¡¯s regulations. Based on his attendance record and the work he had done, the company shall pay Ding for working overtime on weekends and during the holiday.

According to the Labor Law, the State applies a working hour system whereby laborers shall work no more than eight hours a day and no more than 44 hours a week on average; employers shall ensure that laborers have at least one day off every week; where an employer is unable to follow the preceding regulations due to the characteristics of its business, it may, upon approval by the labor administrative department, adopt other methods of work and rest.

In order to better safeguard their legitimate rights and interests, employees need to pay special attention to the following points:

1. Limitation period for arbitration

Given the weaker position of employees during the existence of labor relations, the law sets a limitation period for arbitration of disputes arising from non-payment of labor remuneration, and the limitation period is one year from the date of termination of labor relations.

2. Burden of proof

Employees should be mindful to keep effective evidence of overtime work. For paper attendance, they should take photos after signing up. For electronic attendance, they should take screenshots. Keep overtime notice and overtime approval form before overtime work; keep work handover records and work email exchanges during overtime work; keep the reimbursement vouchers should expenses be reimbursed after overtime work.

If an employee fails to provide the evidence, but he or she has evidence to prove that the employer has the evidence of factual overtime work, the employer shall bear the adverse consequences should it fail to provide such evidence.

3. ¡°Overbearing clauses¡± in the separation agreement

When terminating or rescinding a labor contract, some employers will use their advantageous position in the follow-up salary payment, the issuance of separation certificates, the transfer of archives and social insurance relations, etc., to force employees to sign ¡°overbearing clauses¡± in the format text, such as not having labor disputes with the company and giving up the right to claim overtime pays. The court will carefully consider whether the separation document is an expression of the employee¡¯s true intention. At key points such as separation, employees should keep the communications with the company in order to demonstrate their true intention.

It should be noted that it is illegal for a company to refuse to handle the separation procedures, and employees can use the law to safeguard their rights and interests.

[Relevant Laws]

I. Labor Law of the People¡¯s Republic of China

Article 36 The State applies a working hour system whereby laborers shall work no more than eight hours a day and no more than 44 hours a week on average.

Article 38 Employers shall ensure that laborers have at least one day off every week.

Article 39 Where an employer is unable to follow Articles 36 and 38 of this Law due to the characteristics of its business, it may, upon approval by the labor administrative department, adopt other methods of work and rest.

II. Labor Dispute Mediation and Arbitration Law of the People¡¯s Republic of China

Article 27 The limitation period for applying for arbitration of labor disputes shall be one year. The limitation period for arbitration shall be calculated from the date on which the party involved knew or should have known that their rights had been infringed.

...

Where a dispute arises over unpaid remuneration during the term of the labor relationship, the worker¡¯s application for arbitration shall not be subject to the limitation period provided for in Paragraph 1 of this article. However, if the labor relationship has terminated, such application shall be made within one year from the date of termination.

III. Interpretation of the Supreme People¡¯s Court on the Application of Law in the Trial of Labor Dispute Cases (I)

Article 42 Where an employee claims overtime pays, he shall bear the burden of proof as to the existence of overtime work. However, if the employee has evidence to prove that the employer has the evidence of the existence of overtime work, and the employer fails to provide such evidence, the employer shall bear the adverse consequences.

(By: Wu Weikuan and Chen Yusi, Shanghai Chongming District People¡¯s Court)