As the economy has developed and internet technologies have progressed, the way workers work has become more and more flexible, with working from home and working online becoming more and more common, shining an increasingly bright light on the issue of “invisible overtime” where such social media software as WeChat is used to handle work after working hours. A labour dispute case involving overtime pay recently concluded by the Wuhan Intermediate People’s Court should be closely studied by employers.
Case overview
In May 2021, Zhang joined a group acquisition company in Wuhan and the parties executed a two-year employment contract that specified a monthly wage of RMB16,000 (USD2,252) and an eight-hour workday. After joining the company, Zhang often used WeChat to deal with work matters after working hours, sometimes just replying to simple work questions but at other times holding online work meetings, sometimes for just a few minutes but at other times lasting several hours.
In November 2021, Zhang terminated his employment relationship with the company and instituted arbitration proceedings, demanding that the company pay him more than RMB80,000 in overtime pay.
Analysis of the decision
The two most salient difficulties in determining the overtime involved in using WeChat and other such social media software to handle work after working hours are:
- The circumstances under which the use of WeChat and other such social media software constitute overtime work; and
- How to determine the amount of overtime done and the overtime pay.
Concerning the first issue, the court held that, with respect to the issue of invisible overtime work after working hours, it is not limited solely to the employer’s place of work, and the following points should also be comprehensively taken into account:
- whether the worker handles work matters outside of working hours;
- whether the worker expends substantive labour; and
- whether such labour eats into the worker’s off hours.
With respect to the issue of using social media software, such as WeChat, to carry out work after working hours, if the communications are simple, episodic and of short duration, and do not affect the worker’s rest, the same should not be deemed overtime work. However, once the scope of general and simple communication is exceeded and the worker expends substantive labour, clearly eating into his or her time off, the same should be found to be overtime work.
In the case in question, judging from the WeChat chat records submitted by Zhang, Zhang did use his time off to respond to work-related questions, the responses to which exceeded the scope of simple communications, requiring him to deal with issues, and accordingly it was proper that the same be found to be overtime work.
Concerning the second issue, the court held that as the duration of overtime done via social media software is difficult to quantify, recognising the entire duration as overtime would be unfair. Ultimately, comprehensively taking into account his wage, job requirements, frequency, duration and content of overtime, etc., the court found that the company ought to pay overtime in the amount of RMB5,000.
Key takeaways
We would recommend that an employer expressly specify its system of overtime in such rules and regulations as its employee handbook, standardise the procedure for overtime, implement an overtime approval system and strictly enforce the same.
If an employee regularly needs to use WeChat or other social media software to handle work after working hours, the employer can further expressly specify in its rules and regulations, or the employee’s employment contract, what kind of circumstances constitute overtime and the rules for calculating the quantity of overtime worked.
If the employee is required to do overtime at short notice, it is incumbent on the employer to remind the employee to promptly submit an overtime application after the fact through the system and retain the attendant overtime records.
With respect to employees in specific positions, such as enterprise managers whose working hours are characterised by greater flexibility, provision may be made in their employment contracts for use of a special working hour system such as the flexible working hour system, and to apply to the human resources and social security authority for an official reply permitting the use of such a special working hour system so as to further reduce risks.
Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by e-mailing Howard Wu (Shanghai) at howard.wu@bakermckenzie.com
