Court Ruling Shines Light on Hidden Overtime––Working on WeChat

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 have the right to ask for overtime pay if they work through instant messaging platforms outside of the workplace / 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 the court identified a long-term pattern of working on WeChat as a form of overtime.

The employee，MissLi 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 promote business.

In addition to frequently working late at the company, Miss Li said that she was also required to keep working on WeChat during holidays and weekends, she was entitled to overtime payment.

However, the company did not agree that replying to clients' messages and answering their questions online is overtime work. Instead, they viewed it as simple communication, just part of Miss Li's job.

Unsatisfied with the company’s reply, Miss Li sued the company, providing her WeChat records as evidence. She claimed that she had worked more than 500 hours of overtime on days off and demanded overtime payment 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.

Based on the chat records provided by Miss Li 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 a lawyer in Beijing. "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, 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".

Employees should improve their legal awareness and to stand up for their interests through litigation or arbitration if employers violate the Labor Law.

It’s highly recommended that job seekers carefully read the law, and the overtime rules made by employers before starting a job. Besides, some companies have specified situations that are identified as working overtime and how to apply for overtime pay in employee handbooks, reading through the materials is essential for employees to understand whether their rights are infringed.

In addition, 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.

As the nature of work continues to evolve, employees should pay close attention to new job requirements, to make sure they understand every aspect of their job, including their responsibilities and what circumstances classify as overtime, before they agree to take a job.

Related provisions in Labour Law of the People's Republic of China

Article 36 The State shall practise a working hour system under which laborers shall work for no more than eight hours a day and no more than 44 hours a week on the average.

Article 38 The employing unit shall guarantee that its staff and workers have at least one day off in a week.

Article 41 The employing unit may extend working hours due to the requirements of its production or business after consultation with the trade union and laborers, but the extended working hour for a day shall generally not exceed one hour; if such extension is called for due to special reasons, the extended hours shall not exceed three hours a day under the condition that the health of laborers is guaranteed. However, the total extension in a month shall not exceed thirty six hours.

《中华人民共和国劳动法》

第三十六条: 国家实行劳动者每日工作时间不超过八小时、平均每周工作时间不超过四十四小时的工时制度。       

第三十八条: 用人单位应当保证劳动者每周至少休息一日。         

第四十一条: 用人单位由于生产经营需要，经与工会和劳动者协商后可以延长工作时间，一般每日不得超过一小时；因特殊原因需要延长工作时间的，在保障劳动者身体健康的条件下延长工作时间每日不得超过三小时，但是每月不得超过三十六小时。