Case Description

Due to the convenience and speed of WeChat, A and B who work in the same company often use WeChat in their daily work, whether communicating with colleagues or clients, and the communication time is not limited to working hours. Due to different job positions and responsibilities, A's chat content is mostly simple work reports, requests for instructions, replies, or sending documents and photos, while B's chat content is mainly about customer maintenance and answering customer questions in the WeChat group. In order to meet the needs of customers from time to time, the company has also developed the "XX Community Official Account Duty Form". Recently, after leaving their jobs, both of them requested the company to pay overtime pay through WeChat, and took the Chat log as evidence. After trial, the court rejected A's application, but supported B's application. So, why is the verdict so different when it comes to demanding overtime pay through WeChat after work?

Lawyer Analysis

With the increasing development of network information technology, the ways in which employees provide labor are becoming increasingly diverse. Outside of the workplace and during working hours, employees can also work anytime, anywhere and complete work tasks through social media such as email and WeChat. Sometimes when an email arrives and WeChat rings, employees may enter work mode at any time. Compared to traditional overtime in the workplace, the recognition and calculation of invisible overtime undoubtedly have its own unique characteristics.

On the one hand, in practice, the recognition of such invisible overtime usually takes into account the following factors: whether working through social media is arranged by the employer; Does the content of working through social media go beyond the scope of simple communication and reflect the substantial labor content that workers have put in; Whether working through social media significantly occupies workers' rest time outside of working hours; Is working through social media characterized by periodicity and fixation, rather than occasional or temporary.

After hearing the case of Mr. A above, the court held that most of the WeChat chat provided by Mr. A were simple work reports, requests for instructions, replies or sent documents and photos, which could not show that Mr. A had clear, sufficient and actually carried out work content, which was not enough to determine the fact that Mr. A claimed overtime, so the court did not support the fact that Mr. A claimed overtime based on the content of the WeChat Chat log.

After the trial of the above case of Mr. B, the court held that: according to the Chat log provided by Mr. B and the work responsibilities of Mr. B, it is beyond the scope of simple communication for Mr. B to work through social media during the off hours and off days in some working days, and the Company's Official Account Duty Form of XX Community can prove the fact that the Company arranged Mr. B to work through social media on off days, The job content has the characteristics of periodicity and fixed nature, which is different from temporary and occasional general communication. It reflects the characteristics of the employer's management of labor and should be deemed as overtime, and the company should pay overtime pay to B.

On the other hand, the overtime hours worked through social media are often difficult to objectively quantify, and employers cannot objectively grasp them. Moreover, employees can also engage in other life activities while working overtime through social media, and it is unfair to use all overtime hours as overtime hours. Therefore, the court generally considers factors such as chat content, frequency and duration of overtime, and employee salary standards, and decides to award a certain amount of overtime pay to the employer.

If the company requires employees to use their rest time to work overtime through social media, it is best to choose an indefinite working hour system based on the characteristics of the position. If an indefinite working hour system can be agreed upon and approved by the human resources and social security department. You can also agree with employees in advance on the duration, work content, and overtime pay of overtime through social media to avoid disputes.