Some employers take advantage of workers' unfamiliarity with the working-hours system and use the special working-hours system as a pretext for "invisible overtime"——

　　[Beyond 8 hours, can I be offline? ③] Does offline "non-fixed working hours" mean online "non-fixed overtime"? 　　

　　Reading notes

　　As online office scenarios become increasingly common, "how long did I actually work" has become a figure that is very hard to quantify. Some experts believe that in the digital age, no matter which working-hours system is implemented, as long as an online working method is adopted, the problem of online overtime may arise.

　　"It was precisely because we discovered the obvious misjudgment concerning the non-fixed working-hours system in the first instance that we made Ms. Li firm in her determination to appeal." As the attorney in the country's first case in which a judgment document explicitly addressed the issue of "invisible overtime," Wang Ziyuan, a lawyer at Beijing Jiuwen Law Firm, recently told a reporter from Workers' Daily about the key details behind the victory in the second instance of the case.

　　In the first instance of the case, the company claimed that it had agreed with Ms. Li in the labor contract on a non-fixed working-hours system, so the first-instance judge dismissed Ms. Li's claim for overtime pay. But in the second instance, because it was found that the company had not obtained approval for the non-fixed working-hours system, the court, combined with the objective evidence of overtime provided by Ms. Li, reversed the judgment.

　　Many workers say that as online office scenarios become increasingly common, "how long did I actually work" has become a figure that is very hard to quantify. For workers under special working-hours systems, because working hours are not fixed, determining the length of online overtime becomes even more difficult. Some employers even exploit workers' unfamiliarity with the working-hours system to deliberately conceal the fact that workers are working online overtime.

　　Special working-hours system becomes a pretext for online overtime

　　Ms. Li joined an internet technology company in Chaoyang District, Beijing, in 2019 as a product operations employee. Ms. Li claimed that during nearly a year of work, she constantly used social media such as WeChat and DingTalk to communicate with clients and colleagues outside working hours, with various forms of overtime totaling 595.8 hours, and the company did not pay her any overtime pay.

　　In the first instance, the company stated that it had agreed with Ms. Li in the labor contract on a non-fixed working-hours system. The first-instance judge held that since a non-fixed working-hours system had been agreed upon, there was no non-working time in the strict sense, and therefore dismissed Ms. Li's claim for overtime pay.

　　"But after the first instance, we found that the non-fixed working-hours system claimed in the labor contract had not been approved by the human resources and social security department." Wang Ziyuan said that according to legal provisions, an employer must obtain approval from the human resources and social security department to implement a non-fixed working-hours system, and cannot merely agree on it in a labor contract. Moreover, the non-fixed working-hours system generally applies only to employees in a small number of special positions, such as senior corporate managers, field staff, sales personnel, as well as some long-distance transport workers, taxi drivers, and some loading and unloading workers at railways, ports, and warehouses.

　　"Ms. Li herself did not understand that she was on a so-called non-fixed working-hours system. She still clocked in and out normally every day, and her position was not within the scope of application either." After Wang Ziyuan communicated with Ms. Li, because the first-instance determination on the non-fixed working-hours system clearly did not conform to existing legal provisions, Ms. Li appealed on that basis.

　　Ultimately, the Beijing No. 3 Intermediate People's Court, based on objective evidence such as the "Holiday Community Official Account Duty Schedule" provided by Ms. Li, held that Ms. Li's use of social media to work during off-duty hours on some weekdays and on rest days should be determined to constitute overtime, and determined at its discretion that the company should pay Ms. Li 30,000 yuan in overtime pay.

　　"I think it sends a signal to society that with technological development, online office work indeed brings efficiency and convenience, but this does not mean workers' right to rest can be infringed upon. If workers do provide substantive work online outside working hours, the court will also determine this as appropriate." Wang Ziyuan believes this case can serve as a warning to others.

　　The reporter learned in interviews that, in addition to Ms. Li, quite a few other workers are also unfamiliar with relevant provisions on the approval and scope of application of working-hours systems. Ms. Chen, who works in finance in Shanghai, often has to carry her computer and communicate with leaders and colleagues about work on rest days. "But the leader says we are on a flexible working-hours system and performance is calculated by project, so no one actively applies for overtime pay. As for whether there is approval, I am not clear."

　　Reviewing overtime facts by reference to work saturation

　　Chinese law provides that special working-hours systems include the non-fixed working-hours system and the comprehensive calculated working-hours system. According to the Interim Provisions on Wage Payment, for those approved by the labor administrative department to implement the comprehensive calculated working-hours system, the portion of their comprehensive calculated working time exceeding the statutory standard working time shall be deemed extended working time, and wages for extended working time shall be paid to workers in accordance with regulations. Workers under the non-fixed working-hours system are not subject to the above provisions.

　　"There are not many cases in which workers under the comprehensive calculated working-hours system apply for overtime pay. When reviewing the facts of overtime, courts generally refer to the worker's work saturation when working from home or online to determine whether the facts of online overtime exist," said Li Yi, a partner lawyer at Beijing JunZeJun Law Offices.

　　In a labor dispute heard by the Beijing No. 2 Intermediate People's Court, Mr. Yang was the human resources supervisor of a catering enterprise in Xicheng District, Beijing. In June 2020, Mr. Yang sued the court requesting that the enterprise pay him overtime wages for extended hours during his employment. From June 2019 to May 2020, the enterprise had been approved by the human resources and social security department to implement the comprehensive calculated working-hours system. As for the overtime claimed by Mr. Yang for the period from February to April 2020, the court held that because of the COVID-19 pandemic, Mr. Yang was working from home and there was a high possibility that his workload was not saturated, so the court did not recognize the overtime claimed by Mr. Yang.

　　"In the digital age, no matter which working-hours system is implemented, work may be carried out online or offline, and where an online working method is adopted, the problem of online overtime may arise." Wang Qian, a professor at Shanghai University of Political Science and Law and director of the Social Law Research Center of the Shanghai Institute of Justice, said, "For example, Shanghai provides that even under the non-fixed working-hours system, overtime pay must be calculated for statutory holidays."

　　Exploring working-hours management suited to the digital age

　　"The traditional standard working-hours system may not fully adapt to flexible work arrangements and the modern trend of online office work." Li Yi suggested that, in order to protect workers' right to rest, consideration could be given to formulating policies and systems for managing fragmented working time and encouraging employers to take measures to clearly specify working hours, the scope and length of online work content, and so on.

　　"Under special working-hours systems, although workers' working hours are not fixed, workers' right to rest still needs to be guaranteed." Wang Dandan, a lawyer at Beijing Tianyuan (Hefei) Law Firm, suggested that technical means could be used to assist in recording, such as project management software and attendance management systems, to provide more objective and accurate data support for determining the length of overtime.

　　"The blurring of the boundary between work and rest brought about by the digital age has further intensified conflicts between the two sides of labor relations. In the future, the overall working-hours system will need to be reformed to keep pace with the times." Wang Qian believes that in order to prevent employers from abusing special working-hours systems, the approval requirement for special working-hours systems should still be upheld, while the precondition for application should be set as "administrative licensing" plus "individual worker consent."

　　"In response to the problem of 'invisible overtime,' what is more important is to reasonably set an upper limit on daily working time or a lower limit on daily rest time, and to ensure its implementation by strengthening labor inspection and other means," Wang Qian said.