Invisible Overtime Uncovered: Protecting Workers\x26#39; Rights in the Digital Age
With the popularity of instant messaging tools such as WeChat and DingTalk, "being on call after work and busy online at any time" has become a daily routine for many workers.
This form of "invisible overtime" — which takes place outside fixed workplaces and without clear attendance records — is blurring the line between work and rest, while also posing new challenges to the protection of workers' rights and interests.
Over more than two years working at a construction company, Engineer Xiao Wei not only had to work overtime on weekdays, but also frequently reported work progress, attended online meetings, and sent on-site photos via WeChat groups even during statutory holidays.
In 2023, after being asked to resign by the company, Xiao Wei filed a lawsuit against the company, claiming overtime pay for the two years and submitting a large number of WeChat chat records as evidence. The Intermediate People's Court of Xiangtan ruled that the plaintiff's handling of work via WeChat during holidays or after work hours constituted overtime, and ordered the company to pay him 5,000 yuan in overtime wages.
A major highlight of the Xiangtan Intermediate Court's judgment lies in its reasonable identification of "invisible overtime". Currently, in real life, it is quite common for workers to communicate with employers via WeChat after work. Is there any "office worker" who has never received a WeChat message from a company leader or replied in a WeChat group after work? If all such communications were uniformly deemed "invisible overtime", it would significantly increase employers' costs, which is neither reasonable nor fair to employers.
According to the court's judgment, the core criterion for identifying "invisible overtime" is whether the worker has provided "substantive work". If the work meets the requirements of being "mandatory", "occupying rest time", and "involving mental or physical effort", it can be identified as "invisible overtime". However, occasional and simple replies such as "received" or "okay" are generally not recognized as overtime.
Similar cases have also occurred in Beijing. After Li Yanyan, a product operation specialist, joined a Beijing-based technology company, she had to handle customer inquiries and coordinate work via WeChat and DingTalk on rest days, with the "Holiday Community Official Account On-Duty Schedule" as evidence. The court held that her work went beyond simple communication and was periodic and regular, ultimately deciding that the company should pay her 30,000 yuan in overtime wages.
Regarding overtime pay, Article 44 of the Labor Law stipulates rigidly: If an employer arranges for a worker to extend working hours, it shall pay remuneration not less than 150% of the worker's normal wage; if work is arranged on rest days and no make-up rest is given, remuneration not less than 200% of the normal wage shall be paid; if work is arranged on statutory holidays, remuneration not less than 300% of the normal wage shall be paid.
It should be noted that Article 39 of the Labor Law stipulates that enterprises must obtain approval from labor administrative departments to implement the flexible working hour system. Without such approval, even if a flexible working hour system is agreed upon, workers can still claim overtime pay.
The difficulties in safeguarding rights related to "invisible overtime" lie in the preservation of evidence and the quantification of working hours. In this regard, workers should enhance their awareness of evidence preservation, properly keep WeChat chat records, email communications, meeting screenshots, on-duty schedules, etc., and clearly record work instructions, content, and the time when the work occurred.
When their rights are infringed, they may first negotiate with the employer; if the negotiation fails, they may safeguard their rights through labor arbitration or litigation, noting that the statute of limitations for arbitration is one year.
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