Jiang was a business receptionist. He was assigned to be on duty for 6 days during the National Day and the New Year’s Day. 1 year later, Jiang dissolved the labor contract, and requested the employer to pay the economic compensation, because he insisted that the employer had failed to pay the full amount of overtime pay. Finally the court dismissed Jiang’s complaint.
A series of laws and regulations, such as the ‘Labor Law’, have stipulated that an employer shall pay for the overtime work if an employee has worked during the statutory holidays. Why the court dismissed Jiang’s complaint? Let’s clarify the precondition of this question, what does ‘Work Overtime’ mean? According to the ‘Labor Law’, ‘Work Overtime’ refers to the employee has to work during the extended working hours, the rest days, or statutory holidays. Hereinafter, in judicial practice, ‘Work Overtime’ shall be based on ‘Work’, i.e. the employee shall work as usual during the above special periods. In view of this, in practice, there are some circumstances which might not be deemed as ‘Work Overtime’.
First, ‘On Watch’. Many local judicial organs have explained that ‘On Watch’ shall not be deemed as ‘Work Overtime’. For example, Article 3 of the ‘Shanghai High People’s Court on Releasing the Answers to the Several Issues concerning the Trial of Labor Dispute Cases’ has stated, if an employee is assigned to be on watch which is related to his daily work, but the employee could get some rest, then the court shall not support the employee’s claim for the overtime pay. Article 22 of the ‘Beijing High People’s Court, Beijing Labor Arbitration Committee on Releasing the Meeting Minutes about the Application of Laws in the Trial of Labor Dispute Cases’ has stated, due to the requirements for safety, fire safety, statutory holiday and etc., the employee is assigned to be on watch which is not related to his daily work, or to be on watch which is related to his daily work, but he could get some rest, then for such circumstances, the court shall not support the employee’s claim for the overtime pay.
Second, ‘Time En Route’. There is a dispute on whether ‘Time En Route’ shall be deemed as ‘Work Overtime’, however, the Supreme People’s Court has pointed out in the ‘Guiding Opinions on Doing a Good Job in the Trial of Labor Dispute Cases under the Current Situation’, the court shall make a reasonable decision on the ‘Overtime Pay’ in consideration of many factors, such as the article on ‘Overtime Pay’ in the labor contract, the nature of the employee’s position, job requirements and etc.. Therefore, in the judicial practice, if both parties have agreed, or the employer has stipulated in the internal rules and regulations, that ‘Time En Route’ shall not be deemed as ‘Work Overtime’, and the employee’s payroll is relevantly high, especially when the employer has paid the ‘Overtime Pay’ for other work overtime timely in accordance with the law, then it is highly possible for the court to support that ‘Time En Route’ shall not be deemed as ‘Work Overtime’.
Third, the ‘Overtime Pay’ for senior managers. Usually, if the flexible working hour system is applied to senior managers, the court might not support the claim for ‘Overtime Pay’. In practice, there is a trend while a senior manager (normally refers to the manager of a department) has more power or higher payroll than normal employees, even the employer has not apply the flexible working hour system for the senior manager’s position, the senior manager’s position might be deemed as belonging to the circumstances for the flexible working hour system, and finally the court might not support the senior manager’s claim for ‘Overtime Pay’.
In addition, if a labor contract has prescribed that the payroll shall include the ‘Overtime Pay’, and after conversion, the normal hourly wage is not lower than the local minimum wage, generally such agreement would be supported by the court. In other words, if the employee claims for ‘Overtime Pay’ with such labor contract, the court might dismiss such claim, especially, when the local rules and regulations have stipulated such articles, such as Guangdong province.
In view of this, what kinds of ‘Work Overtime’ shall be paid, how to pay the ‘Overtime Pay’, all these issues related to ‘Work Overtime’ shall be reasonably arranged by the employer in accordance with the laws, regulations, local rules and the judicial practice rules.