He received compensation and a 5-year extended overtime pay totaling 170000 yuan, which is a textbook for protecting his rights! After being laid off
"I have worked so many extra shifts, and the HR department told me that they won't give me overtime pay and can only offset it with compensatory leave. This has made me a bit flustered. What if I get laid off before taking compensatory leave?" As soon as I walked into the Yangpu District Legal Aid Center, Zhang Xiaotian spat at the staff.
He is a technical staff member of a company in Shanghai. Since July this year, his company has been frequently laying off employees. In addition to worrying about being laid off, he realized that there are still many delayed overtime wages that have not been settled, and he needs to urgently seek payment from the company. After receiving such a response from the company, Zhang Xiaotian was very uneasy. In order to protect his rights, on July 31st, he applied to the Yangpu District Legal Aid Center, requesting the company to pay his delayed overtime pay.
After review, the Yangpu District Legal Aid Center believes that Zhang Xiaotian is a migrant worker who has a labor dispute with the company. According to Article 31 and Article 42 of the Legal Aid Law, he meets the conditions for legal aid and made a decision to provide legal aid to Zhang Xiaotian on August 1, 2023. He also appointed Chen Jian, a lawyer from Shanghai Jinhu Law Firm, to represent him in this case.
Upon receiving the assignment, Chen Jian immediately contacted Zhang Xiaotian to inquire about the situation. Zhang Xiaotian joined the company on August 15, 2018, engaged in technical work. Both parties signed a three-year written labor contract. After the contract expired in 2021, it was renewed until August 14, 2024. Working for nearly 5 years, Zhang Xiaotian has worked overtime several times until late at night, but has never received any extended overtime pay.
Chen Jian analyzed that currently, the overtime evidence in Zhang Xiaotian's enterprise WeChat, from my own application to leadership approval, all have the formal requirements for advocating overtime pay. Once laid off, one will definitely passively exit the enterprise WeChat group, and all accumulated overtime hours, overtime application and approval documents, and performance evaluation records cannot be unilaterally verified. There may even be a risk of the company maliciously tampering with or deleting WeChat records to evade the responsibility of paying delayed overtime wages. So he suggested that Zhang Xiaotian take evidence preservation measures in a timely manner.
After full communication with Zhang Xiaotian, Chen Jian reported the relevant situation to the Yangpu District Legal Aid Center. The Yangpu District Legal Aid Center informed that according to the recently issued policy of the Shanghai Judicial Bureau on the reduction and exemption of notarization fees for legal aid recipients, evidence preservation notarization falls within the scope of the reduction and exemption of notarization fees. Zhang Xiaotian does not need to submit application materials and can directly enjoy the reduction and exemption of notarization fees. Chen Jian informed Zhang Xiaotian of this policy and stated that he will preserve the evidence as soon as possible.
Unexpectedly, on August 2nd, the company took action - before the end of the workday, HR sent a letter of intent for job adjustment to Zhang Xiaotian, stating that due to business integration, organizational restructuring was needed. Zhang Xiaotian's technical position was revoked and he was transferred to the sales position. During the contract period, he enjoyed equal pay for the sales position and was required to report to the new position on August 7th.
Zhang Xiaotian is unable to accept the unit's job transfer arrangement and has decided to carry out evidence preservation and initiate arbitration proceedings as soon as possible. On August 3rd, Chen Jian and Zhang Xiaotian went to the Yangpu Notary Office together for evidence preservation notarization. After receiving the guidance transmission form issued by the Yangpu District Legal Aid Center, the Yangpu Notary Office promptly reviewed and determined that Zhang Xiaotian's situation met the "enjoy without application" requirements. They immediately notarized the 132 page evidence materials, including personal overtime records and performance evaluations, in his company's WeChat account, and issued a notarized document the next day. Zhang Xiaotian's evidence materials were preserved in a timely manner.
After an anxious weekend wait, at 9:00 am on August 7th, Chen Jian and Zhang Xiaotian arrived at the Yangpu District Labor Arbitration Committee on time to submit an arbitration application, requesting the company to pay Zhang Xiaotian a total of 43370 yuan in delayed overtime wages from August 15th, 2018 to July 12th, 2023.
In the afternoon of that day, Zhang Xiaotian received a notice from the company regarding the termination of the labor contract, stating that due to business integration and organizational restructuring, Zhang Xiaotian's original position was revoked, and the new position could not be reached through negotiation. The labor contract with Zhang Xiaotian was terminated on August 7, 2023. The company was willing to pay the corresponding economic compensation, but did not mention how to pay the overdue overtime wages. As expected by Chen Jian, Zhang Xiaotian was no longer able to log in to the company's enterprise WeChat account on the same day.
On September 4th, the People's Mediation Committee for Labor Disputes in Yangpu District arranged for both parties to mediate. Zhang Xiaotian filed a request for additional arbitration in court, demanding that the company pay economic compensation of 211250 yuan for illegal termination of the labor contract.
Chen Jian also proposed an agency opinion: first of all, employers should pay workers overtime wages in accordance with the law and cannot arbitrarily arrange compensatory leave to offset them. According to Article 44 and Paragraph 1 of the Labor Law of the People's Republic of China, "If an employee is arranged to extend their working hours, they shall be paid a salary not less than 150% of their salary." The company shall settle the overdue overtime pay with Zhang Xiaotian in a timely manner, instead of long-term arrears, and arrange for employees to take compensatory leave during their leisure time to offset it. The company's actions in this case are not in compliance with legal provisions.
Secondly, during the term of the labor contract, the company stated that it had made significant adjustments to the employee's position due to business integration and organizational restructuring. If negotiations failed, the contract was unilaterally terminated, which is suspected of illegal termination. The employee has the right to claim compensation for illegal termination of the labor contract. In this case, although both parties have reached an agreement to pay n+1 labor compensation for the termination of the labor contract, which complies with the provisions of Article 40 and Paragraph 3 of the Labor Contract Law of the People's Republic of China, that is, if there is a significant change in the objective circumstances based on which the labor contract was concluded, making it impossible to perform the labor contract, and after consultation between the employer and the employee, if no agreement can be reached on changing the content of the labor contract, the employer may terminate the labor contract by notifying the employee in writing 30 days in advance or by paying an additional month's salary to the employee. However, whether the company is unable to perform the labor contract due to significant changes in objective circumstances is not a standard that the company speaks for itself, and should be determined by both parties or by arbitration institutions, courts, and other judicial organs in accordance with the law.
Due to the timely implementation of previous evidence preservation measures, the evidence materials regarding the payment of Zhang Xiaotian's request for overtime pay were detailed, clear, and well-organized. Although Zhang Xiaotian was unable to log in to the previous company's WeChat account, the effectiveness of the evidence was strengthened by notarization, and the mediation process was very efficient. The unit accepted this request without fail. Regarding the economic compensation for the illegal termination of the labor contract, under Chen Jian's reasonable argument, the company also knew it was at fault and ultimately agreed to pay a certain amount of compensation.
On that day, the Yangpu District Labor Arbitration Committee issued a mediation letter, and the company paid the applicant Zhang Xiaotian a delayed overtime salary of RMB 43370 and an economic compensation of RMB 126750 for terminating the labor contract before September 10, 2023. On September 8th, Zhang Xiaotian received over 170000 yuan in payment from the company as scheduled, which made him very grateful.
"This case is the first case in Shanghai where the notarization fees for legal aid recipients are reduced or waived, and the beneficiaries' claim for delayed overtime pay is ultimately fully supported, which cannot be separated from the evidence preservation notarization in the early stage." Zhao Chengzhi, director of the Yangpu District Legal Aid Center, said that the difficulty of obtaining arbitration support for the claim for delayed overtime pay is much greater than that of the claim for overtime pay on rest days and statutory holidays, mainly due to the difficulty of collecting evidence for delayed overtime pay and the strong arbitration review.
He explained that overtime pay on rest days and statutory holidays usually only requires the provision of attendance records to meet the preliminary requirements for evidence. However, the claim for delayed overtime pay requires a written application from the worker first, followed by written approval from the unit's supervisors at all levels, and smooth submission of written materials to support arbitration. In this case, the aided person timely preserved and fixed the evidence of overtime records before the company unilaterally terminated the labor contract, which enabled them to take the initiative in the labor dispute. Finally, with the help of the assisting lawyer, not only did they recover nearly 5 years of delayed overtime wages in a short period of time, but they also received a considerable amount of economic compensation for illegal termination of the labor contract, effectively safeguarding the legitimate rights and interests of the workers.
