April 18, 2023
BEIJING – A recent lawsuit related to working overtime through the use of WeChat has aroused heated discussion, prompting legal professionals to call on people to increase their awareness and learn to protect their interests in this fast-changing era.
Employees will have the right to ask for overtime pay if they work through instant messaging platforms outside of the workplace or of working hours for a long period, but they should learn to document the evidence, experts said.
The remarks were made after a Beijing court recently ordered an employer to pay 30,000 yuan ($4,400) to one of its employees after it identified a long-term pattern of working on WeChat as a form of overtime.
The employee signed a contract from April 2019 to March 2022 with a technology company, under which she was required to be responsible for product operation and contacting clients to expand business.
In addition to frequently working late at the company, the employee said that she was also required to keep working on WeChat during holidays and weekends without overtime pay.
The employer did not view replying to clients’ messages and answering their questions online as overtime. Instead, they viewed it as part of the plaintiff’s job, simple communication, which had no bearing on the non-fixed work-hour system previously agreed by both sides in the contract.
This system is designed to accommodate employees whose working hours are difficult to measure. Under this system, employees are generally paid as salaried employees. This salary is a fixed amount paid per period, usually monthly.
The two sides were unable to compromise, so the employee sued the employer, and offered her WeChat records as evidence. She claimed that she had worked more than 500 hours of overtime on days off and demanded overtime pay from the company.
After the trial, the Beijing No 3 Intermediate People’s Court ruled in favor of the plaintiff, noting that her use of social media during off-hours and rest days went beyond simple communication.
“In other words, the work was fixed and periodic rather than temporary or accidental, so it should be identified as overtime and deserves payment,” the court said.
It also pointed out that offering a non-fixed work-hour system requires written permission from the local labor administration, but that the company had not secured this.
Based on the chat records provided by the plaintiff and considering her salary, efficiency, duration and content of her work during rest periods, the court decided on a figure of 30,000 yuan.
“Working through social media and instant messaging tools has become more common in the rapidly developing internet era,” said Xu Hao, a lawyer from Beijing Jingsh Law Firm. “Employees, especially those with flexible jobs or who are not required to be in an office or a fixed place to work, might find themselves subject to hidden overtime.”
Compared to traditional work, Xu agreed that it is difficult to calculate overtime duration and pay if someone is working on instant messaging platforms, but this “doesn’t mean employers can take advantage of the flexibility to force employees to work”.
He called for employees to improve their legal awareness and to stand up for their interests through litigation or arbitration if employers violate the Labor Law.
Under the law, employees should not work more than eight hours a day and no more than 44 hours a week on average, and they have the right to at least one day off every week.
It further states that employers are permitted to extend working hours to meet production and business needs after negotiating with trade unions and employees.
If it is necessary to extend working hours in particular circumstances, the extension should not exceed three hours a day to protect the health of employees, it said, clarifying that no more than 36 hours of overtime should be required a month.
Zhao Zhanling, a lawyer with Yunjia Law Firm in Beijing, suggested that job seekers carefully read the law, and the overtime rules made by employers before starting a job, because a better understanding of both will help them determine whether employers are likely to violate them.
He also said that some employers have specified situations that are identified as working overtime and how to apply for overtime pay in employee handbooks, “so reading the materials is essential for workers to know whether their legitimate rights are infringed”.
“Every employee should make a conscious effort to keep evidence of overtime, regardless of whether they have signed a non-fixed work-hour system agreement with their employers,” said Li Zongsheng, deputy head of the Liaoning Lawyer Association, adding that it is a right granted and protected by the law.
As the nature of work continues to evolve, employees should pay close attention to new job requirements, Li said, and suggested that they clarify every aspect of work, including their responsibilities and what circumstances classify as overtime, before they agree to take a job.