How Much Is Overtime Pay?

In China, overtime pay can be classified into three categories based on different circumstances. According to Article 44 of the “Labor Law of the People’s Republic of China,” if workers are required to work beyond regular hours, they should be paid wages that are not less than 150% of their regular wages. This category covers overtime pay for extended working hours. If workers are scheduled to work on rest days without the opportunity for compensatory rest, they should be paid wages that are not less than 200% of their regular wages. This category covers overtime pay for rest days. Finally, if workers are scheduled to work on statutory holidays, they should be paid wages that are not less than 300% of their regular wages. This category covers overtime pay for statutory holidays.

The existence of overtime pay is closely tied to the standard working hour system in China. According to Article 36 of the “Labor Law of the People’s Republic of China,” the daily working hours of workers should not exceed eight hours, and the average weekly working hours should not exceed forty-four hours. Additionally, Article 38 of the same law stipulates that workers should have at least one day off per week, while Article 40 requires employers to arrange for workers to take holidays during statutory holidays. These regulations establish the foundation of the standard working hour system, which encompasses working eight hours a day, not exceeding forty hours a week, having at least one day off per week, and resting on statutory holidays. Therefore, in the standard working hour system, all three forms of overtime pay—extended working hours, rest days, and statutory holidays—can exist.

Now, let us turn our attention to how overtime pay is calculated. The “Notice of the Ministry of Labor and Social Security on the Calculation of Employees’ Annual Average Working Time and Wage Conversion” provides guidance on this matter. To calculate the monthly working days, we subtract 104 days (annual leave, weekends, and statutory holidays) from 365 days, and then divide the result by 12 months. This calculation yields an average of 21.75 working days per month. The daily wage is obtained by dividing the monthly income by the monthly working days, while the hourly wage is obtained by dividing the monthly income by the product of the monthly working days and eight hours.

For the calculation of overtime pay for extended working hours, we use the formula: (Previous month’s monthly income – overtime pay) ÷ (Monthly working days × 8 hours) × overtime hours × 150%. This formula takes into account the previous month’s monthly income, deducts the overtime pay, and then multiplies it by the number of overtime hours worked, which is then multiplied by 150% to determine the additional compensation.

Similarly, the calculation for overtime pay for work on rest days involves the formula: (Previous month’s monthly income – overtime pay) ÷ Monthly working days × number of days worked on rest days × 200%. In this case, we subtract the overtime pay from the previous month’s monthly income, divide it by the monthly working days, and multiply it by the number of days worked on rest days, which is then multiplied by 200%.

Lastly, the calculation for overtime pay for work on statutory holidays follows the formula: (Previous month’s monthly income – overtime pay) ÷ Monthly working days × number of days worked on statutory holidays × 300%. This calculation subtracts the overtime pay from the previous month’s monthly income, divides it by the monthly working days, multiplies it by the number of days worked on statutory holidays, and then multiplies it by 300%.

The allocation of the burden of proof is a fundamental aspect of labor disputes pertaining to overtime pay. In China, it is incumbent upon the party making the claim to provide evidence of the existence of overtime work. Workers who seek overtime wages must bear the responsibility of substantiating their claims by presenting relevant evidence, such as records of working hours and attendance logs. However, it is crucial to note that in cases where the evidence lies within the control and management of the employer, adverse consequences may be imposed on the employer if they fail to provide the necessary evidence. This provision ensures that employers cannot evade their responsibility to provide appropriate evidence and helps safeguard the rights of workers.

Central to the principles of justice is the adage “the one who asserts must prove.” In labor disputes, including those concerning overtime pay, this principle holds great significance. It places the burden of proof squarely on the party making the claim. Therefore, workers who claim overtime wages must be prepared to present evidence that supports their assertions. Maintaining accurate records of working hours and any other relevant evidence is vital for workers seeking to substantiate their claims for overtime pay. By adhering to this principle, we ensure a fair resolution of labor disputes and uphold the principles of justice.

The termination of labor contracts for refusing illegal overtime work is an issue of great concern. China’s labor laws strictly regulate the extension of working hours beyond the regular work schedule. Employers are obligated to comply with the maximum limits set by law and protect the physical well-being of their workers. It is crucial to recognize that insisting on imposing illegal overtime work arrangements on workers violates labor laws and administrative regulations. As a result, labor contracts that contravene mandatory provisions of laws and regulations are considered void or partially void. Consequently, workers who refuse to participate in illegal overtime work arrangements are protected by law, and employers cannot terminate their labor contracts based on such refusals.

It is of paramount importance for workers to understand their rights and obligations with regard to overtime work and the legal protections in place. If workers are asked to engage in overtime work that exceeds the legal limits or compromises their well-being, they have the right to refuse without fear of retaliation.

In conclusion, the issue of overtime pay is a critical component of labor rights and fair treatment in the workplace. The legal framework surrounding overtime pay in China provides safeguards for workers, ensuring that they receive appropriate compensation for their additional work hours. The allocation of the burden of proof, the principle of “the one who asserts must prove,” and the provisions against proof hindrance all contribute to a fair resolution of labor disputes. Workers are protected from being coerced into engaging in illegal overtime work, and employers are obligated to provide overtime pay, regardless of whether the overtime work is voluntary or instructed.