Does working on WeChat after work count as overtime? The court has ruled! Li Xiaomei | Company | Court

Non working hours

Does "WeChat office" count as overtime

The court makes a judgment

Li Xiaomei joined a technology company in Beijing on April 1, 2019 as a product operator. The two parties signed a labor contract until March 31, 2022, which stipulated that Li Xiaomei would implement an indefinite working hour system.

Later, due to overtime issues, a labor dispute arose between the two parties.

Li Xiaomei submitted the "Official Account Duty Form for Holiday Community", WeChat chat records, and DingTalk check-in records, stating that she often uses social media to communicate with customers and employees after work or during holidays, and the company should pay her overtime pay.

The company believes that Li Xiaomei is mainly responsible for answering occasional questions from customers in the customer group during her duty on rest days, rather than working overtime.

First instance court:

Agree on an irregular work schedule, and the company is not required to pay overtime pay

Li Xiaomei applied for labor arbitration and requested the company to pay over 500 hours of overtime pay, totaling 203200 yuan. The labor arbitration commission does not support his request.

Li Xiaomei is dissatisfied with the ruling and has filed a lawsuit with the court, demanding that the company pay a total of 400000 yuan in overtime pay, rest day overtime pay, and statutory holiday overtime pay.

The first instance court held that due to the agreement between Li Xiaomei and the company in the labor contract to implement an irregular work schedule, the court did not support her request for rest days and extended overtime pay.

Regarding the dispute over overtime during statutory holidays, the first instance court held that:

Li Xiaomei only submitted the "Official Account Duty Form for Holiday Community", but claimed that most of the overtime days were not statutory holidays and could not prove the specific work content and working hours during duty. Therefore, the court did not support her request for overtime pay during statutory holidays.

Finally, the first instance judgment rejected all of Li Xiaomei's litigation claims. Li Xiaomei was dissatisfied and filed an appeal.

Second instance court:

WeChat work beyond the scope of simple communication is considered overtime

The second instance court held that Article 39 of the Labor Law of the People's Republic of China stipulates: "If an enterprise is unable to implement the provisions of Article 36 and Article 38 of this Law due to its production characteristics, other work and rest methods may be implemented with the approval of the labor administrative department."

According to the "Approval Measures for Enterprises to Implement the Irregular Work System and the Comprehensive Calculation of Working Hours Work System" issued by the Ministry of Labor, enterprises must obtain approval from the labor security department to implement the Irregular Work System and the Comprehensive Calculation of Working Hours Work System.

In this case, although both parties agreed in the contract to implement an indefinite work schedule, the company did not obtain approval for the indefinite work schedule.

Based on the WeChat records provided by Li Xiaomei and the "Holiday Community Official Account Duty Table" and other evidence analysis, it is found that the company arranges its work during working days and off days.

The second instance court held that:

With the development of economy and the progress of Internet technology, the working mode of workers is becoming more and more flexible. They can provide labor anytime and anywhere through computers and mobile phones, and are no longer bound by the workplace and office positions provided by employers. It is not uncommon for workers to use social software such as WeChat to work during working hours and outside the workplace.

For such hidden overtime issues among workers, overtime cannot be denied solely because the worker is not working in the employer's workplace. The concept of workplace should be blurred, and the determination of overtime should be comprehensively considered based on whether the worker provides substantive work content.

If an employee uses social media during non working hours to work beyond the scope of general simple communication, and the employee pays substantial labor content, or if the use of social media for work is cyclical and fixed, which clearly occupies the employee's rest time, it should be recognized as overtime.

In this case, although the company claimed that Li Xiaomei was only responsible for answering questions in the customer group during her day off duty and not working overtime, based on chat records and job responsibilities, it can be seen that Li Xiaomei's use of social media to work has exceeded the scope of simple communication. Moreover, the "Holiday Community Official Account Duty Form" can prove that her work content is periodic and fixed, different from temporary and occasional general communication, reflecting the characteristics of the employer's management of employment, and should be recognized as overtime, and the company should pay overtime pay.

At the same time, the second instance court held that workers can also engage in other daily activities while working overtime, and it is unfair to use the entire duration as overtime hours. Therefore, the amount of overtime pay paid by the company should be determined accordingly.

Finally, the second instance court ruled that the company should pay Li Xiaomei 30000 yuan in overtime pay.