Are you serious about overtime pay

Are you serious about overtime pay

recently, "is the overtime pay on legal holidays 200% or 300%" has been hyped on the Internet. The focus is on whether the overtime pay on legal holidays should be paid at 300%, before or after the normal wage income. Article 44 of the labor law clearly stipulates that if employees are arranged to work on legal holidays, they shall be paid no less than 300% of the salary. Therefore, the answer is clear. However, the problems exposed by this cannot be ignored. Why do the same legal provisions have different understandings

there are many similar problems related to overtime pay. For example, according to the relevant provisions of the national measures for holidays on annual holidays and anniversaries (Order No. 513 of the State Council) and the notice on the annual average monthly working hours and wage conversion of employees, "daily wage = monthly wage income ÷ monthly paid days", the monthly paid days are currently set at 21.75 days/month nationwide. Then, what does the monthly wage income specifically mean? The monthly working day is 20.83 days/month and the monthly salary days are 21.75 days/month. What are the purposes of the two

for another example, according to Article 44 of the labor law, if employees are arranged to work overtime on rest days, they should first arrange compensatory leave. If compensatory leave is not available, they should be paid not less than 200% of their wages. Compensatory leave shall be equal to overtime. Some people think that if overtime on legal holidays can be given compensatory leave, it can also be exempted from paying overtime wages. Some people think that if overtime accumulated for 8 hours at ordinary times, if compensatory leave is given, it can also be exempted from paying overtime wages...

why does the same legal provision have different understandings in different groups? Is there a deviation in people's understanding of the relevant provisions of the regulations and policies, or is there no consensus on the understanding of the preconditions of the relevant provisions of the regulations, or is the definition of the preconditions of the relevant regulations unclear by the makers of the regulations? Or are there other reasons? This paper hopes to give a clear interpretation of the relevant provisions of overtime pay and a standardized explanation of the calculation method of overtime pay on the basis of case analysis, so as to reduce this kind of understanding deviation and misunderstanding

[case]

Xiao Li is a salary accountant of a clothing production enterprise in Guangdong. Lao this company is a super large construction profile enterprise in Southwest China. The contract clearly stipulates that the monthly salary is 900 yuan, and its monthly actual income is 1200 yuan, including transportation expenses of 80 yuan/month, communication subsidies of 40 yuan/month, and food subsidies of 180 yuan/month. However, these three subsidies are paid in the form of recharge cards and cash, which are not reflected in the total salary. The local minimum guaranteed income is 750 yuan/month. In January before the Spring Festival in 2008, due to busy work, Xiao Li was required to work overtime for two days on a weekend. In the second week before the Spring Festival, she decided to work overtime for two hours every day because she couldn't finish everything. Moreover, during the Spring Festival, there are also three days on duty, namely, the first day of the first day, the fourth day and the fifth day. The cumulative overtime of the month is 50 hours

as soon as he went to work after the Spring Festival, Xiao Li submitted his resignation application to the human resources department and got the approval of his resignation the next day. When settling the salary, Xiao Li received an overtime salary of 180 yuan and a holiday fee of 150 yuan. Xiao Li will take a day off in the first week after the Spring Festival. Xiao Li thought that the calculation of overtime pay was unreasonable and asked the human resources department to provide the algorithm of overtime pay. The human resources department told her that her overtime pay was 240=750 ÷ 25 ÷ 8 × thirty-two × 2。 Xiao Li thinks this algorithm is unreasonable and believes that: (1) the company should calculate the overtime wage base according to its monthly actual income of 1200 yuan, (2) one week before the Spring Festival, she worked overtime for 2 hours a day, with a total of 10 hours, and should also calculate the overtime pay, (3) compensatory leave can only be taken for overtime on the rest day, rather than three times the overtime wage of the first day of the first day of the lunar new year. Therefore, her overtime wage =1200 ÷ 25 ÷ 8 × (24 × 2+10 × 1.5+8 × 3) =522 yuan, requiring the enterprise to supplement her overtime salary of 282 yuan

the enterprise does not agree with Xiao Li's requirements and believes that: (1) the overtime wage base can be decided by itself under the condition that it is not lower than the local minimum living security; (2) it is Xiao Li's voluntary behavior to work overtime for 2 hours every day before the Spring Festival; (3) the enterprise pays Xiao Li a holiday allowance, and he is given a compensatory leave. Therefore, the overtime wage of the first day of the first day of junior high school can not be paid by 3 times, so Xiao Li will not be paid a supplementary overtime wage

both parties cannot reach an agreement, so Xiao Li applies to the local labor arbitration department for arbitration. The arbitration result found that Xiao Li's overtime salary =900 ÷ 21.75 ÷ 8 × (24 × 2+8 × 3) =372 yuan, therefore, the enterprise was ordered to pay a supplementary overtime salary of 132 yuan to Xiao Li. At the same time, it is believed that the clothing company arranged Xiao Li's cumulative overtime of 40 hours in January, exceeding the specified 36 hours, and imposed administrative penalties on the clothing company

the disputes between Xiao Li, the clothing company and the labor arbitration institution in the case mainly focus on the following aspects: (1) the determination of the fact of overtime, that is, under what circumstances overtime is overtime in the legal sense; (2) How to determine the overtime wage base; (3) How to determine the overtime multiple; (4) Whether overtime on legal holidays can be compensated; (5) How to limit overtime; (6) The following six aspects are analyzed one by one: whether the holiday subsidies can replace overtime pay

I. determination of the fact of overtime

one of the prerequisites for calculating overtime wages is that the "fact of overtime" is overtime in the legal sense. One of the focuses of controversy in the case is whether Xiao Li's voluntary overtime of 2 hours a day is overtime. The result was that the clothing company did not recognize this as overtime, and the arbitration organization also supported the clothing company's view. Xiao Li's request was not adopted, because overtime in the legal sense was arranged by the company, and employees' voluntary overtime was not overtime in the legal sense, and would not be supported and protected by the law. In practice, employees and enterprises should grasp the following points in the identification of "overtime facts":/p>

(1) those who work voluntarily do not belong to overtime. The premise for the employer to pay overtime wages is that "the employer should ensure that the inlet load is consistent with the outlet load; if it cannot be excluded, check the experimental status display area, and the unit will arrange employees to work outside the legal standard working hours according to the actual needs", that is, the employer should pay overtime wages only if the employer arranges overtime. If an employee's work is not the requirement and decision of the employer, nor the overtime record recognized by the employer, but only voluntary overtime, it does not belong to overtime, and the employer does not need to pay overtime pay. However, if the employing unit recognizes the overtime of employees, it is the overtime arranged by the unit, and the corresponding overtime salary should be paid

(2) there is evidence that arranging for the unit can be confirmed as "actual overtime". For example, the department head of a company always arranges his subordinate Xiao Li to hand in a business plan after the long holiday before the holiday. In fact, it indirectly requires Xiao Wang to set aside time to finish his work during the long holiday. The disguised extension of employees' working hours belongs to overtime. However, pay attention to the premise that employees must have evidence to prove that employees have to work overtime outside normal working hours due to excessive work tasks arranged by the employer

(3) irregular working personnel have no overtime income. China's labor law stipulates that enterprises that implement the standard working hours system of no more than 8 hours per day and no more than 44 or 40 hours per week, as well as enterprises that have been approved to implement the comprehensive working hours system, should pay employees the wages and remuneration for extended working hours in accordance with the provisions of the labor law. However, in accordance with Article 5 of the general principles of the civil law and Article 60 of the opinions on the implementation of several issues of the Supreme People's court The provisions of the "measures for the examination and approval of enterprises to implement the irregular working system and the comprehensive working hour system" exclude those who implement irregular working hours. Positions with irregular working hours usually include "Senior managers, field personnel, salesmen, some on duty personnel and other employees who cannot be measured by standard working hours due to work; long-distance transportation personnel, taxi drivers and some loading and unloading personnel of railways, ports and warehouses in enterprises, as well as employees who need mobile operations due to the special nature of work; other relations due to production characteristics, special needs of work or scope of responsibility, are suitable for irregular work Employees of the system. " However, it should be noted here that if the employer arranges employees to work on legal holidays, it should still pay overtime at no less than 300% of its own salary standard

(4) comprehensively calculate that the working hour system personnel have no overtime income within the standard working hours. According to the provisions of the Ministry of labor's "measures for the examination and approval of enterprises implementing the irregular working system and the comprehensive working hour system" and "reply on issues related to employees' working hours", the total actual working hours of enterprises approved to implement the comprehensive working hour system should not exceed the total legal standard working hours in the comprehensive calculation cycle, The excess part shall be deemed to extend the working hours and pay wages (no less than 150% of the wage standard to pay overtime wages) in accordance with the provisions of paragraph 1 of Article 44 of the labor law. Among them, if employees are arranged to work on legal holidays, pay wages (no less than 300% of the wage standard to pay overtime wages) in accordance with the provisions of paragraph 3 of Article 44 of the labor law. Moreover, the average number of hours of extended working hours shall not exceed 36 hours per month

(5) if the piece rate system arranges work outside the quota, it is recognized as "overtime". If an employee who implements piecework wage is arranged by the employer to extend his working hours after completing the task of piecework quota, he shall be paid not less than 150%, 200% and 300% of his statutory piecework unit price in accordance with the principle stipulated in Article 44 of the labor law

to sum up, the voluntary overtime of Li Xiaoxiao in the case of two hours a day a week before the Spring Festival cannot be recognized as overtime in the legal sense because the evidence that the unit arranged overtime cannot be provided, and the enterprise may not pay overtime pay

II. Determination of overtime wage base

on the basis of identifying overtime hours, to accurately calculate overtime pay, we must first correctly determine the calculation base of overtime pay, that is, the hourly wage rate of employees. The hourly wage rate of employees = monthly wage income ÷ monthly paid days. Therefore, the premise to determine the hourly wage rate of employees is to clearly define the two concepts of "monthly wage income" and "monthly paid days". In the case, a key point of the dispute between the parties is whether 1200 yuan, 900 yuan, or 750 yuan should be taken as the "monthly salary income", and whether 25 days or 21.75 days should be taken as the "monthly salary days"

1. Monthly salary days

according to the relevant provisions of the national measures for annual holidays and commemorative days (Order No. 513 of the State Council) and the notice on the annual average monthly working hours and wage conversion of employees (No. 20083 issued by the Ministry of labor and social security), according to the provisions of article 51 of the labor law, employers on legal holidays shall pay wages according to law, that is, converted daily wages The 11 day statutory holidays stipulated by the state are not excluded from the hourly wage. Accordingly, the conversion of daily wage and hourly wage is: Daily Wage: monthly wage income ÷ monthly salary days; Hourly wage: monthly wage income ÷ (monthly salary days) × 8 hours). Monthly salary days = (365 days -104 days) ÷ December = 21.75 days. It can be seen that the number of days of monthly salary is clearly stipulated by the law to be 21.75 days

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