recourse for overtime pay is one of the most common claims in labor arbitration or litigation, but it is relatively difficult to succeed, mainly because it is difficult to provide evidence. Once both employers and employees are involved in overtime pay in arbitration or litigation, employers often make full use of their own advantages to defend in all aspects. From the case practice, the disputes between the two sides tend to focus on the following aspects:

1. Are there any overtime? How long is the overtime?

according to the current regulations, "workers who claim overtime pay shall bear the burden of proof for the existence of overtime facts. Workers have evidence to prove that the employer has evidence of the existence of overtime facts, and if the employer does not provide it, the employer will bear the adverse consequences. "

here, workers are often extremely passive: on the one hand, workers are usually unable to provide tangible evidence of their overtime work; Second, even if you can provide occasional overtime evidence, you can't provide all your overtime evidence. Although the law also stipulates that key evidence such as attendance records can be provided by the employer and bear the adverse consequences of failure to provide them, the authenticity and comprehensiveness of the attendance records provided by the employer cannot be guaranteed.

Therefore, it is very important for workers to pay attention to and save relevant evidence in their usual time if they want to win the victory in claiming overtime wages, such as: registering their daily overtime accounts; Keep the system, documents or notices of attendance, work and rest of the unit; Screenshots of email exchanges and work group chats with the unit; Wait a minute. Of course, it is best to get the original data of the company's attendance record, such as taking photos when signing attendance.

second, does the usual salary include overtime pay?

another important defense point of the company is that overtime pay is already included in the usual salary, so it is not necessary to pay it separately. The convenience for the unit is to pay attention to it when making the payroll, for example, the content on the payroll is "basic salary XXXX yuan, post salary XXXX yuan, overtime salary XXXX yuan".

In another case, overtime hours are explicitly stipulated in the labor contract. For example, the labor contract stipulates that working hours are "six days a week" or "working hours are from 8 am to 6 pm on weekdays". In this case, the daily wages are usually considered to correspond to the working hours agreed in the contract, that is, the wages that exceed the standard working hours are included.

in the view of the labor department or the court, as long as the overtime pay claimed by the unit that excludes daily wages (or converted into hourly wages according to wages paid and working hours) is not lower than the local minimum wage standard, its claim will usually be recognized if there is no evidence to the contrary.

regarding this controversial point, workers should not only pay attention to the agreement on working hours and salary standards when signing the contract, but also keep the corresponding salary system, performance appraisal system and other relevant regulations of the unit to prove which parts are included in the salary composition they receive. At the same time, the payroll provided by the unit should also be kept intact and can be mutually verified when necessary.

"The road to labor rights protection is long, and the first step is to give evidence." Although we don't go to work in the unit for litigation, we sometimes have to make some full preparations for litigation. Looking at the cases in which the workers won the case in the recourse of overtime wages, either the workers provided sufficient evidence or the units themselves voluntarily admitted the relevant facts. As workers, we can't pin our hopes on the kindness of the unit, and our usual accumulation is also an important job.