Hello everyone, I am the principal.
I recently saw two workplace cases, both of which involved a big pit in the workplace. Let’s chat with you, so that you can be vigilant and prevent this big pit in your future workplace experience.
Let's look at the case first.
01
Case number one
In March this year, Jiangshan Town Comprehensive Administrative Law Enforcement Team received a case transfer letter from the District Human Resources and Social Security Department, reflecting that a packaging company illegally extended the working hours of 106 workers in an industrial park in the town last November.
According to the investigation, in order to rush to make orders, the company illegally extended working hours in November 2022. The average working hours of 106 workers in that month was about 250 hours, all of which were illegally extended by more than 70 hours. The administrative permission of the fixed-time work system violates Article 43 of the Labor Law. According to the "Regulations on Labor Security Supervision", "If an employer violates labor security laws, regulations or rules and prolongs the working hours of employees, the labor security administrative department will give a warning and order it to make corrections within a time limit. In accordance with the provisions of the standard of 500 yuan above and below 500 yuan, the town comprehensive administrative law enforcement team imposed a fine of 10,600 yuan on the enterprise.
According to Article 41 of the "Labor Law", due to the needs of production and operation, the employer may extend the working hours after consultation with the trade union and laborers, generally not exceeding 1 hour per day; If the employee is in good health, the extended working hours shall not exceed 3 hours per day, but shall not exceed 36 hours per month.
Key points: The unit has not obtained the administrative permission to implement the comprehensive calculation of working hours and variable working hours.
This point is also involved in subsequent cases.
02
case two
Ms. Li is a product operator of a technology company. She has signed a contract with variable working hours and enjoys 10 days of paid annual leave every year. In late 2020, the tech company fired her for 3 consecutive days of absenteeism.
Ms. Li refused to accept it and sued the technology company for overtime pay during her tenure. She claimed that she had worked more than 500 hours of overtime, including after get off work, rest days and statutory holidays, but the company did not pay her overtime pay. She presented evidence such as chat records, shift schedules, screenshots of Dingding check-in and the "Official Account Duty List of the Holiday Community".
The technology company argued that Ms. Li implemented the irregular working hours system and was not entitled to overtime pay. Moreover, her so-called overtime work is only to occasionally answer some questions in the customer group, and it does not belong to overtime work.
The court of first instance supported the technology company's point of view and rejected Ms. Li's claim.
Ms. Li was not reconciled and appealed to the Beijing Third Intermediate Court.
The court of second instance held that the technology company implemented the irregular working hours system without approval, which violated the provisions of the labor law. Ms. Li's use of social media to carry out work during non-working hours has gone beyond the scope of simple communication, and has the characteristics of periodicity and fixedness, which should be identified as overtime work. Therefore, the court of second instance ruled that the technology company should pay Ms. Li overtime.
Key points: The basis for judging that the company is illegal here is that technology companies implement irregular working hours without approval, which violates the provisions of the labor law. Therefore, Ms. Li's appeal was supported.
An interesting point of judgment I find is: in the new era, social software is used to work, and the law also recognizes its overtime behavior.
Beijing No. 3 Intermediate People's Court believes that because overtime using social media is different from traditional overtime at work, the length of overtime is often difficult to objectively quantify, and the employer cannot objectively grasp it. In addition, the overtime work in this case is mainly reflected in customer maintenance in the WeChat group, which mainly focuses on answering questions. Laborers can also engage in other life activities while working overtime. It is also unfair to use the full length of time as overtime. Therefore, the court shall determine the amount of overtime pay payable by technology companies based on the evidence on file.
Accordingly, after the second trial of the case, the Beijing Third Intermediate People's Court comprehensively considered the frequency, duration, content and salary standard of Ms. Li's overtime work, and finally changed the judgment that a technology company should pay Ms. Li a total of 30,000 yuan for overtime work.
03
case inspiration
I feel that the case this time has three important reminders for us workers in the workplace.
1. Be wary of irregular working hours
The variable working hours system is a system of working hours without fixed commuting hours. It is suitable for workers who cannot be measured by standard working hours or who need to work flexibly due to production characteristics, special needs of work or scope of duties. Workers with irregular working hours are not restricted by legal working hours, nor are they entitled to overtime pay and other benefits.
Therefore, I feel that when the company signs the labor contract, the irregular working hours system may be signed to avoid the problem of overtime pay.
What reminds us is: if your job is not the kind of sales or mobile workers, when signing the labor contract, you should pay attention to the description of the working system in the contract, and do not sign a labor contract with an irregular working hours system. Otherwise, there will be problems in defending rights in the future.
2. During off-duty hours, social media such as WeChat belongs to the category of overtime work
This case has given a very clear recognition and reminder to the majority of workers, that is, using social software and other instant messaging to work during off-duty hours is considered overtime.
The court pointed out in the judgment that with the development of the economy and the advancement of Internet technology, the working mode of laborers has become more and more flexible. They can provide labor anytime and anywhere through computers and mobile phones, and are no longer bound by the workplace and office positions provided by the employer. In particular, it is not uncommon for workers to use social media such as WeChat to carry out work outside of working hours and workplaces. As for the invisible overtime problem of such workers, overtime work cannot be denied just because workers do not work at the employer’s workplace. , but should virtualize the concept of the workplace, comprehensively consider whether the laborer has provided substantial work content to determine the overtime situation.
This is a judgment that keeps up with the development of the times, and it is a judgment that keeps pace with the times.
However, if we want to identify it as overtime work, we need to preserve evidence for the content of communication and exchange work during off-duty hours. Therefore, everyone should pay attention to preserving and retaining evidence during work, especially during off-duty work.
3. After being dismissed, laborers' rights protection gradually increased
I don't know if you have discovered it? In the past few years, everyone's legal awareness and legal rights protection activities are gradually increasing, especially after being fired, they start to defend their rights, and this phenomenon is gradually increasing.
During the working period, as long as the relationship is maintained well, even if everyone complains about working overtime, due to the work relationship, everyone maintains their face. In addition, it is not so easy to find a job now, and employees will not be penny-pinching. Therefore, whether there is overtime pay, whether the company has violated labor laws, and everyone is too lazy to defend their rights.
However, once fired or offended by the company's unscrupulous behavior, everyone now generally starts to defend their rights.
Judging from the results of a large number of rights protections, the labor law is still on the side of the laborers, and most of the rights protections are the success of the laborers' rights protection.
Here is a reminder for everyone:
From the perspective of workers, we should pay attention to keeping evidence of our work in the workplace and during work, so as to avoid being illegally dismissed by the company and to protect our rights.
From the company level, this is a reminder to all companies: it is best to get together with employees and not to dismiss employees illegally. Everyone's awareness of rights protection and the success rate of rights protection are quite high.
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