China: Employers shall pay for overtime when employees work through social media during non-working hours

Mrs. Li (“Employee“) and the Company (“Employer”) signed an employment contract which applies to the flexible working hour system in 2019. In 2020, the Employer notified the Employee of her termination for her continuous absenteeism. Later, the Employee filed labor arbitration and litigation against the Employer and claimed for overtime pay. Beijing No.3 Intermediate Court heard this dispute and ruled in favor of the Employee.

The Court came to this decision based on the following reasons that the Employer implements the flexible working hour system without the approval of the labor security department. Besides, whether overtime work is considered shall take into account the substance of the work rather than the workplace. In this case, the evidence provided by the Employee proved the fact that the Employer arranged for the Employee to use social media to work during non-working hours with periodic and fixed characteristics, which is different from temporary and occasional general communication. It shall be deemed as overtime work and the Employer shall pay for overtime.

Regarding the issue of the amount of overtime pay, the Court pointed out that it is difficult to objectively calculate the overtime hours using social media, the Employee can also engage in other life activities while overtime. Therefore, the Court ruled that the Employer shall pay the Employee RMB 30,000 yuan for overtime given to the frequency, duration, content and salary standard of the Employee.

Key Action Points

Due to the increasing diversification of work method, employees could work anytime and anywhere through computers and mobile phones, which is no longer bound to workplace. For employers, it shall be aware that employees’ use of social media to communicate with clients may be recognized as overtime. To avoid potential dispute, it is still advisable for employers to apply for the approval of the flexible working hour system and clarify the application process and time of overtime.