'Invisible overtime' needs to be regulated

A Beijing court's ruling in an "invisible overtime" case has sparked heated discussions on the internet. The court has ruled that the time employees spend working beyond a company's working hours and outside the workplace using WeChat and/or other social media platforms qualifies as "invisible overtime", and the employer is obliged to pay for such extra hours of work.

An employer can ask its staff to work on computers and smartphones without going to the office due to the rapid development of information and communications technology. This has blurred the boundary between working hours and nonworking hours, posing a challenge to employees, and making it difficult for them to protect their labor rights and for labor officers to regulate overtime.

Employers misuse ICT to encroach upon workers' right to rest, creating three major problems. First, "invisible overtime" breaks the continuity of workers' rest period. Everyone has the right to rest and leisure. That's why labor laws have fixed working hours and provisions for periodic holidays with pay. Employees in China have a standard working week of 40 hours (eight hours a day), so except for statutory or agreed-upon circumstances, they have full control over their non-working hours. But the encroachment upon workers' right to rest fragments their free hours and forces them to be on call beyond working hours.

Second, it is difficult to protect employees' right to seek pay for overtime when they work through social media and instant messaging tools during non-working hours. Although employers normally have a system to measure workers' working hours, they usually ignore the work done using ICT outside the workplace and/or during non-working hours.

For example, some employers argue that occasional work assignments after working hours do not mean working overtime, while others do not track working hours properly or pay for overtime work due to poor management.

And third, continuous encroachment upon workers' free time using ICT will put pressure on the workers and could even damage their health. Studies have shown that working outside the workplace using ICT could affect workers' work-life balance, put them under greater stress and damage their health. Moreover, if employees are injured while working beyond working hours and/or outside the workplace, such injuries may not be considered work-related injuries.

Therefore, efforts should be made to regulate "invisible overtime" and address the issue in accordance with the law. As long as an employee signs a contract with the employer and has to work in his free time, whether at or outside the workplace, he or she should be paid for overtime work based on the labor law. It is worth noting that regardless of whether employers adopt a non-fixed working-hour system in agreement with the labor department and employees, they should guarantee workers a fixed period of free time.

Employers should devise a policy and work out procedures governing overtime work rules and wages. Specifically, they should introduce rules to record the duration of employees' work beyond working hours and outside the workplace because work schedules are important evidence for overtime work and can prevent disputes between employees and employers. Employers should also use digital technology to record employees' work during the rest period, so workers can provide chat records on social media and instant messaging tools to prove they have worked beyond the fixed working hours and/or outside the workplace in case a dispute arises.

And related departments should tighten supervision on workers' work duration by using convenient digital services to address complaints. They also need to regularly issue information to improve employers' and workers' legal awareness of "invisible overtime".

It is worth noting that employees are normally afraid to refuse overtime work for fear of being denied promotion and allowances, or even being dismissed. Against this background, lawmakers should introduce the concept of "right to disconnect", which means that, except for statutory or agreed-upon circumstances, employees have the right to refuse work-related communication through digital tools during nonworking hours and they should not be subjected to any adverse treatment for doing so.

The right to disconnect can be applied differently in different industries or working-hour systems. For instance, emergency department nurses cannot refuse calls from the hospital.

Hence, it is necessary to make clear the type of work and workers that can be granted legal immunity while applying the right to disconnect, and allow employers and workers to decide how to safeguard employees' rights through collective bargaining.

The author is an associate professor of the School of Law at Wuhan University.

The views don't necessarily reflect those of China Daily.