Is it overtime to remind you to bring your work home？ How to define overtime and duty？ Regarding overtime, it is enough to look at these 22 questions!
CCTV News:Working hard to work overtime, but do you really understand your rights and obligations? Does the rest day training meeting belong to overtime? Is it overtime to bring work home? How to define overtime and duty? These questions will be answered for you one by one.
1. What is overtime and how to identify overtime?
In practice, when determining whether workers work overtime — —
First of all, look at whether the employer has put forward overtime requirements for workers.
Secondly, it depends on whether the laborer provides labor outside the legal standard working hours and whether the laborer provides labor overtime according to the rules and regulations of the unit.
It is also necessary to comprehensively judge whether the laborer implements the comprehensive working hour system or the irregular working hour system.
2. If the laborer works overtime without the arrangement of the employer, does the employer need to pay overtime?
Whether it is overtime depends on whether it is arranged by the employer. Therefore, if it is not arranged by the employer,Instead, workers take the initiative to extend working hours or go to work on rest days and holidays, resulting in voluntary overtime.The employer may not have to pay overtime.
However, there is a key point, that is, the employer has to prove that the laborer volunteered to work overtime rather than the employer arranged it, so the employer needs to have a corresponding overtime examination and approval system to confirm it, otherwise, in practice, it will be considered that the employer cannot prove that the laborer volunteered to work overtime, which will lead to the confirmation of overtime and the payment of overtime.
3. Is the rest day training meeting overtime?
It can be considered as overtime. (To say the least, even if it cannot be regarded as overtime, it should be handled with reference to the regulations on duty. )
4. Is it overtime to arrange workers’ work on Women’s Day and Youth Day?
The Letter on Wages Related to Holidays of Some Citizens stipulates that during the holidays of some citizens, the unit shall pay wages to employees who participate in social or unit celebration activities and work as usual, but shall not pay overtime wages. If the holiday coincides with Saturday and Sunday, and the unit arranges employees to work overtime, they shall pay overtime pay for rest days according to law.
5. A 6-day working week is implemented. Is the extra day overtime?
If you work no more than 8 hours a day and no more than 40 hours a week, there is no overtime work even though the 6-day working week is implemented.
6. Is it overtime for workers to bring their work home?
Workers bring their work home in two situations:
A. voluntary work is not overtime.
B. It is overtime if there is evidence that the work is arranged by the employer. Of course, the laborer must have evidence to prove that it is really because the employer has arranged too many work tasks, so that the laborer has to work overtime outside the normal working hours, and the employer should pay overtime wages.
7. Is a business trip on weekends overtime? Can you use travel allowance or travel allowance to offset overtime pay?
Weekends are generally the time for workers to rest. Whether a business trip on weekends belongs to overtime depends on whether the workers provide labor — —
If the business trip coincides with the weekend, and the laborer provides labor during this period, it shall be overtime.
If the business trip coincides with the weekend, and the laborer does not provide labor, but is just resting and playing, it is not overtime.
If the employee’s business trip on weekends has been recognized as overtime by the employer, and the employer cannot arrange compensatory time off, overtime pay shall be paid according to law.
Travel allowance and travel allowance are not legal overtime pay, nor do they include overtime pay. Therefore, employers cannot use travel allowance and travel allowance to offset all or part of overtime pay.
8. Is it overtime to catch up with weekends or holidays during business trips?
The business trip is also for future business trips, so the business trip time should be working hours, and if it coincides with weekends and holidays, it should be overtime.
9. Do expatriates work overtime on weekends?
In terms of overtime, expatriates are the same as those in the headquarters. If expatriates implement the standard working hours system and expatriates provide labor on weekends, it is overtime. At the same time, the regulations on overtime work of expatriates must comply with the relevant local regulations.
10. Does it belong to overtime for the employer to hold employees’ cultural and sports activities on rest days?
It is generally not considered overtime. However, considering that similar activities are required by employers, it may be controversial in practice.
Therefore, the employer should stipulate in the rules and regulations that such situations (outings and other recreational activities organized on holidays and rest days, and recreational activities organized after work on weekdays) do not belong to overtime, so that it will be biased towards the employer.
11. During the long vacation, is it overtime for the employer to ask the workers not to leave their city and stand by at any time?
Only when the unit officially informs the workers to come to work in the unit can they be deemed to work overtime.
12. How do workers with integrated working hours identify overtime?
Because the comprehensive working hours system calculates the working hours according to the approved calculation cycle (week, month, quarter and year), its working hours are not limited by the maximum amount of the standard working hours system.
For example, if the approved calculation period is a quarter, the total working time in a quarter is 20.83 days × March× 8 hours =499.9 hours, and there are no restrictions on 8 hours per day and 40 hours per week. However, in a calculation period, if the work exceeds 499.9 hours, it shall be deemed as overtime.
13. How do workers with irregular working hours identify overtime?
According to the provisions of the Interim Provisions on Wage Payment, workers who implement the irregular working hours system do not implement the provisions on overtime wage system.
However, both Shenzhen and Shanghai stipulate that if an employer arranges workers with irregular working hours to work on holidays, it should be regarded as overtime, and there is no problem of overtime on working days and rest days.
14. Can middle-level and above managers work overtime without paying overtime?
Whether middle-level and above managers work overtime depends on what working hour system is implemented. If it is deemed to be overtime, overtime should be paid.
15. Do employees in special positions such as security guards and doormen have overtime pay?
Whether overtime is determined has nothing to do with special positions such as security guards and doormen, but only with the fact that overtime exists. If employees in special positions such as security guards and doormen work overtime, they should pay overtime according to law.
In addition, on legal holidays, special posts such as security guards and doormen will continue to attend their posts. Since their attendance is also engaged in their own work, this situation should be regarded as overtime and not as duty.
16. If the employer arranges for workers to work overtime on rest days, can they arrange compensatory time off without paying overtime pay, and can the workers refuse compensatory time off and ask for overtime pay?
According to the regulations, if workers are arranged to work overtime on rest days, they should first arrange for compensatory time off. If they can’t, they should pay no less than 200% of their wages. Make-up time should be equal to overtime.
It can be seen that after working overtime on rest days, it is up to the enterprise to decide whether to arrange compensatory time off. It is also the legal obligation of the employer to give priority to compensatory time off, and its purpose is to fully protect the workers’ right to rest. Therefore, employees should abide by the employer’s arrangement on compensatory time off, and cannot refuse compensatory time off and ask for overtime pay.
17. Can the employer arrange compensatory time off without paying overtime pay if the workers work overtime on working days and legal holidays?
The Labor Law stipulates — —
If workers are arranged to extend their time, they shall be paid no less than 150% of their wages;
If workers are arranged to work on legal holidays, they shall be paid no less than 300% of their wages..
It can be seen that the employer must pay overtime when workers work overtime on weekdays and legal holidays.
Of course, if the employer is willing to arrange compensatory time off, it can be regarded as the welfare of the employer, but this cannot exempt the employer from its legal obligation to pay overtime.
18. Can a worker who refuses to work overtime by the employer be dealt with in violation of discipline?
The employing unit shall consult with the trade union and the laborer to arrange overtime work, and can extend the working hours only after reaching an agreement.
If the employer unilaterally decides or arranges overtime for the employee without consulting with the trade union and the employee, the employee has the right to refuse. In this regard, the employer cannot deal with it according to discipline.
19. If the employer arranges overtime, and the laborer is unable to attend work for some reason, can it be regarded as absenteeism and no attendance award will be issued?
Because the employer must negotiate with the employee to arrange overtime, if the employer arranges overtime and the employee is unable to attend work for some reason, it cannot be regarded as absenteeism, and the attendance award will be issued.
20. After consultation with the trade union or the laborer, the employee agrees that the unit will arrange overtime. If the employee is unable to attend work for some reason later, can it be considered as absenteeism, can it be punished, and can it not be awarded the attendance award?
In the case that the laborer agrees to arrange overtime, overtime should be treated as the normal work arrangement of the employer. If the employee fails to come for some reason, it is absenteeism. If the absenteeism unit has rules and regulations that violate discipline, it can of course be punished.
As for the attendance award, it depends on how each unit stipulates the attendance award, which is in line with the conditions for the unit to issue the attendance award. For example, if the attendance is counted as attendance on the statutory attendance day, the attendance award should be issued. If it is not in line with the conditions for the issuance of the attendance award, it may not be issued.
21. How to define overtime and duty?
Duty refers to the work that the employer temporarily arranges or arranges according to the system for the needs of safety, fire fighting, holidays, etc., which has nothing to do with the laborer’s job; Or although it is related to the laborer’s own job, the work that can be rested during the duty is generally unproductive, such as guarding the door and answering the phone. Overtime means that workers continue to engage in their own jobs outside normal working hours.
Determining whether to work overtime or on duty mainly depends on whether the workers continue to work in their original posts or whether they have specific production or business tasks.
The calculation of overtime pay is legal (150%, 200%, 300%).
The calculation of duty fee is not limited by law, but is generally determined according to the rules and regulations of the employer, labor contract, collective contract or practice. Because if the general duty is also paid according to overtime pay, it will violate the nature of overtime pay in the sense of Labor Law, which will cause inequality.
22. Is it necessary to consult with the trade union or workers on duty?
Both on duty and overtime take up employees’ time outside the statutory working hours. Although they have different purposes, from the perspective of protecting workers’ right to rest, it is best to reach an agreement on duty.
If there is no need for consensus, employees must attend the duty arranged by the unit, otherwise they may violate the discipline. Therefore, the purpose of this regulation is to prevent employers from infringing workers’ right to rest in the name of duty.
▌ Source of this article: Workers Daily, Labor Daily, and Personnel Encyclopedia.