If an employee continues to reply to job-related messages in off-duty hours, can this be counted as overtime? should the employers offer extra payment to their staff for working during this period of time? It is not easy to answer this question given the fiercely competitive environment in the Chinese job market, not to mention the context of the 996 work culture, to which many employees at internet giants are accustomed.
Working via social media platforms after getting off duty, also called "invisible overtime," has become a heated discussion topic in China in recent years as the phenomenon is becoming commonplace due to the rapid economic development as well as widespread use of social media applications.
Especially during the COVID-19 pandemic, the omnipresence of the internet connects companies and employees, making online communication and collaboration convenient and greatly improving work efficiency.
In reality, it is hard for employees to seek overtime payment as, from a legal point of view, it is difficult to define what constitutes "invisible overtime" and where the boundary is.
However, in a case detailed in the yearly working report by the Beijing High People's Court, an employee successfully won her lawsuit against her employer and received compensation for working via social media applications during off-duty hours. The case caught great public attention and was hailed as a typical example of the country's judicial system showing initiative.
According to a report by the Beijing Daily, Li, working in a Beijing-based technology company, sued her employer for the overtime work she performed after work. She claimed that she kept communicating with her clients and colleagues through social media platforms such as WeChat or DingTalk after work and asked for extra payment for the services during this period of time. However, her company argued that this did not qualify as overtime work.
After reviewing the case, the Beijing No.3 Intermediate People's Court ruled that Li's work, which involved using social media for work purposes during off-duty hours, weekends and holidays, went beyond simple communication. The nature of this work was characterized by periodicity and regularity of using social media platforms, distinguishing it from occasional and incidental communication. It should be considered as overtime work. Based on this, the court ruled that the company should pay Li 30,000 yuan ($4,179) for overtime work.
The judgment also put forth the principles of "performing substantial work" and "obvious occupation of time" as criteria for determining the concept of "invisible overtime," which conforms to the changing trend of labor forms in the digital era and protects the legitimate rights and interests of workers.
Industry insiders and experts hailed the case as an active exploratory effort in trying to define and clarify the concept of "invisible overtime," giving a confidence boost to Chinese workers and serving as an example for the country to promote the rule of law in the new era.
'Invisible overtime' legally recognized
A similar case was also included in the 13 model wage arrears cases jointly unveiled by the Supreme People's Court, the Chinese Ministry of Human Resources and Social Security, and the All-China Federation of Trade Unions on January 25.
In this case, an employee working in a cultural media company, also surnamed Li, sued the company for delaying overtime payment. Based on the proof provided by Li on his or her WeChat account, the local court determined that Li had worked on three rest days and ordered the company to pay Li 5,517.24 yuan for overtime wages.
The Supreme People's Court explained that the local court made this verdict based on the worker's engagement during their rest time, taking into account factors such as the frequency, duration, wage standards, and job responsibilities of the overtime work. The court's decision protects the legitimate rights and interests of the workers in accordance with the law.
Working online is still the labor performed under the supervision and instructions of employers. This case urges employers to clearly define the boundaries of overtime and understand its legal consequences, Wang Tianyu, a legal expert from the Chinese Academy of Social Sciences, said in a commentary article published on Wednesday.
The current heated discussion over "invisible overtime" has also become a good opportunity to enhance Chinese workers' legal awareness, allowing more and more people to understand their legitimate interests, learn to preserve evidence for safeguarding their rights, legal experts said.
They said that they have handled many similar cases before in actual practice, and the reason why this case brought public attention is because it is the first time that a court has included the concept of "invisible overtime" in its decision.
Its significance lies in two parts. The first is that, in the judicial view, the existence of "invisible overtime" is acknowledged. Second, at the methodological level, it provides a reference for identifying "invisible overtime" relatively accurately. In the past, "invisible overtime" was more of a public opinion topic, but the verdict of this case has taken a big step forward in making it a legal concept.
Shen Binti, a lawyer from a Beijing-based law firm, shared one case with the Global Times, in which the court ruled that the employee performed overtime work through evidence from electronic devices, like instant messages.
Shen believes that putting the term "invisible overtime" in a court work report will have a very positive impact on law popularization and related education, particularly in the current digital era.
The case enables many employees to realize that, their work online at weekends can be defined as overtime, said Shen. "It encourages more people to better know about the law and safeguard their legitimate rights and interests."
But experts have also pointed out that there is still a long way to go before clarifying a concept in some individual case judgments to the clear legal provisions that the public expects.
New steps in building rule of law
Apart from dealing with the "invisible overtime" issue, Chinese judicial authorities have never stopped their efforts in solving some long-standing problems such as wage arrears of migrant workers, especially considering that the Chinese Lunar New Year, or Spring Festival, is approaching.
They have gained more experiences and explored interdepartmental mechanism that probably could be applied in more fields to effectively protect workers' interests.
In a case reported by the Workers' Daily recently, Fu Kexing, a 60-year-old migrant worker in Chencang district, Baoji city, Northwest China's Shaanxi Province, finally received the 6,000 yuan owed to him after five years through the persistent efforts from multiple local authorities, including human resources and the social security bureau, procuratorate, court, and federation of trade union via the "123N" pre-litigation rights protection linkage model.
The model includes "one-window acceptance, two services, three-level network, and multi-party coordination."
"One-window acceptance" refers to using labor supervision and labor arbitration as the window to accept different types of labor disputes, combining judicial aid and trade union rights protection. The window will classify and divert different cases to corresponding institutions. "Two services" means adhering to the dual services of "popularizing legal knowledge and providing legal aid and assistance."
According to statistics reported by the Workers' Daily on January 24, in the last two years since the "123N" model was implemented, Chencang district has conducted 43 legal education activities for migrant workers, held more than 50 lectures, and provided legal aid in 245 cases.
They have received 4,288 phone calls and visits, handled 1,734 complaints and reports, and recovered 23.669 million yuan in wages for 2,005 workers.
Such mechanisms can guarantee that the migrant workers' demands are responded to directly by the responsible department. On the other hand, it also mobilizes all relevant departments and coordinates them to work together to ensure the true implementation of the law, which is, in fact, the most difficult part of the judicial process, Xu Xinming, a Beijing-based lawyer, told the Global Times.
In the next step, the Supreme People's Court, the Ministry of Human Resources and Social Security, and the All-China Federation of Trade Unions will spare no effort in promoting the implementation and refinement of the work needed to eradicate wage arrears, smooth channels to protect the legitimate rights and interests of workers, and contribute to high-quality economic development and social harmony and stability, read the joint statement of the three departments released on January 25.
In the conclusion of the cases unveiled in the joint statement, the three departments emphasized interdepartmental coordination, fast-tracking, and making full use of online platforms and pre-litigation mediation to ensure the immediate and effective protection of migrant workers' interests as well as strict and effective enforcement of the law.
Exploring interdepartmental linkage mechanisms is a new step to promote effective law enforcement and, in the long run, will accelerate the country's building of the rule of law, said Xu.
—Carlo Cafiero, Summary of Marx's Capital (1879)