Many workers in special posts don't understand that there is a certain difference between the overtime pay system in special posts and ordinary posts, so there are some misunderstandings in the understanding and legal application of overtime pay rights protection. Myth 1: Working for more than 8 hours counts as overtime on weekends and holidays. Article 36 of China's "Labor Law" stipulates: "The state implements a working-hour system in which the daily working hours of laborers do not exceed 8 hours and the average weekly working hours do not exceed 44 hours." Article 39 stipulates: "If an enterprise is unable to implement the provisions of Articles 36 and 38 of this Law due to its production characteristics, it may, with the approval of the labor administrative department, implement other work and rest measures." Lawyer's statement: In practice, some special types of workers only know that China is currently implementing a standard working hour system of 8 hours a day and 40 hours a week, thinking that although different types of jobs have different division of labor, the overtime calculation methods of different types of jobs are calculated according to the standard working hour system, which is not the case. In addition to the standard working hours system, there are comprehensive working hours system and irregular working hours system. The comprehensive working hour system refers to the working hour system that comprehensively calculates working hours with weeks, months, quarters and years as cycles. In the comprehensive calculation period, the actual working hours of a specific day (or week) can exceed 8 hours (or 40 hours). Flexible working hours system refers to the flexible working hours system adopted by employees who cannot work according to the standard working hours due to the production characteristics of enterprises, special work needs or scope of responsibilities, or need flexible working hours due to irregular working hours. During the standard working hours, workers who implement the standard working hours can arrange normal work before going to work, after work and on vacation. Therefore, whether it is a comprehensive working hour system or an irregular working hour system, it is not necessary to work within 8 hours of standard working hours every day, and it is necessary to have a rest on weekends. Therefore, workers in special positions who work the above two special working hours may not claim overtime pay from the employer, just like ordinary workers who adopt the standard working hours system, even if they work more than 8 hours a day and go to work on weekends. Case study: Xiao Li is a security guard of a residential property company. The labor contract he signed with the company is a comprehensive working hour system. Xiao Li often works 1 1 hour a day, and sometimes goes to work on Sundays, but Xiao Li has never received overtime pay from the company. Xiao Li has been doing this for several years. Later, there was a labor dispute between Xiao Li and the company, and Xiao Li took the company to court. The company is required to pay overtime in recent years. The court investigation found that the property company implemented a comprehensive working hour system for security guards and regularly arranged security guards to take turns to take vacations. It has a labor contract agreement with Xiao Li, a comprehensive working hour system approval form and other procedures, and the attendance sheet and the payroll can correspond to each other. In addition, the total actual working hours of Xiao Li during the comprehensive calculation period did not exceed the total legal standard working hours. Therefore, Xiao Li didn't get overtime pay and weekend overtime pay because he worked more than 8 hours. Lawyer's suggestion: Unless there are special provisions in laws and regulations, employers who implement the comprehensive working hours system or the irregular working hours system can only agree with the workers to apply the standard working hours system without the approval of the labor administrative department. Even after approval, it is only on the premise of agreeing that workers should apply the special working hour system. If the standard working hours system is stipulated in the labor contract signed by both parties and has not been changed into a special working hours system in writing, the standard working hours system is still applicable. In addition, the employing unit shall still ensure that the daily working hours of the employees engaged in manual labor intensity above Grade III (including Grade III) shall not exceed 1 1 hour, and they shall have a rest of at least 1 day every week, and shall not violate the protection regulations for female employees and underage employees, so as to guarantee the workers' right to rest. Otherwise, the laborer can report to the labor administrative department or sue the employer. Myth 2: There is no overtime pay for special work. Article 8 of the Measures for Beijing Enterprises to Implement Comprehensive Working Hours System and Flexible Working Hours System stipulates: "An enterprise that implements comprehensive working hours system may work more than 8 hours (or 40 hours) in a comprehensive calculation period, but the total actual working hours in a comprehensive calculation period shall not exceed the total legal standard working hours. The excess shall be regarded as an extension of working hours, and labor remuneration shall be paid in accordance with the provisions of the first paragraph of Article 44 of the Labor Law. Where workers are arranged to work on statutory holidays, they shall pay wages and remuneration in accordance with the provisions of the third paragraph of Article 44 of the Labor Law. The average monthly working hours of an enterprise shall not exceed 36 hours. Article 12 stipulates: "For the employees who implement the irregular working hours system, the enterprise shall reasonably determine the labor quota or other assessment standards of the employees according to the standard working hours system, so as to guarantee the employees' right to rest. Lawyer's statement: In addition to the above misunderstanding, there is a diametrically opposite misunderstanding in practice, that is, there is no overtime pay for special types of work. In fact, the comprehensive working hours system only calculates working hours in weeks, months, quarters and years, but its average daily working hours and average weekly working hours should also be the same as the legal standard working hours. The average working hours on the same day should not exceed 8 hours, and the average working hours on a week should not exceed 40 hours. If the total actual working hours of special types of workers exceed the total legal standard working hours in the comprehensive calculation period, the workers can still obtain the excess according to the provisions of the first paragraph of Article 44 of the Labor Law. Workers who implement the system of comprehensive calculation of working hours have the right to receive 300% overtime pay according to the third paragraph of Article 44 of the Labor Law, even if they are arranged to work on legal holidays. However, the flexible working hours system is only used to disperse working hours for mobile operation. In fact, the workers who implement the irregular working hours system should still determine the labor quota according to the standard working hours system, not according to the comprehensive working hours. If the total working hours of such workers exceed 8 hours a day and 40 hours a week, they should also receive 150% overtime pay according to the first paragraph of Article 44 of the Labor Law. Therefore, there is no overtime pay for special types of work that implement comprehensive working hours system and irregular working hours system. Case study: Xiao Zhang is a driver led by a certain unit, and the labor contract signed with the unit stipulates the implementation of flexible working hours. Xiao Li doesn't have to work in the unit, he just needs to wait for the notice of the unit to go out to perform official duties. Xiao Li picks up the leaders before and after work every day. Sometimes the leader will inform Xiao Li to get off the bus when something happens temporarily. Xiao Li has been so busy for several years. The unit leader only gave Xiao Li some gifts on holidays, but never paid overtime. The unit leader explained that Xiao Li is a special post, working hours are irregular, and there is no need to pay overtime. Later, Xiao Li took the unit to court and demanded to pay overtime. According to the statutory investigation, Xiao Li did work more than 8 hours and 40 hours a week, so he was awarded overtime pay for the part that exceeded the total standard working hours. Lawyer's suggestion: The implementation of comprehensive working hours system and irregular working hours system should be negotiated with trade unions, workers' congresses or employees, and the work and rest system of enterprises should be publicized to employees. It can only be applied if the employer publicizes it to the workers according to law. If the employer fails to agree on the working hours system for the workers, fails to publicize the positions and time limit for implementing the special working hours system to the workers according to law, and the workers demand to pay overtime wages according to the standard working hours system, and the employer refuses to pay, the workers may bring arbitration and litigation against the employer according to the standard working hours system. In addition, it is worth noting that when an enterprise terminates or rescinds the labor contract with its employees, if the calculation period of the comprehensive working hours system is not over, the employees may demand to pay 200% of the labor remuneration for the part where the actual working hours of the employees exceed the legal standard working hours according to the provisions of the second paragraph of Article 44 of the Labor Law. Myth 3: As long as the time in the workplace exceeds the standard, it will be counted as overtime. Article 9 of the Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases stipulates: "Workers who advocate overtime shall bear the burden of proof for the existence of overtime facts. However, the laborer has evidence to prove that the employer has evidence of overtime work. If the employer does not provide it, the employer shall bear the adverse consequences. " Lawyer's statement: At present, the burden of proof of overtime facts is borne by workers. If the laborer can't prove the existence of overtime, he will bear the risk of losing the case. In judicial practice, the standard of determining the fact of overtime needs to emphasize the effectiveness and passivity of overtime, that is, overtime must be an effective process of providing labor or recognized behavior. For the effectiveness of overtime, we will not simply take the passage of time as the standard, but also comprehensively consider whether labor is actually provided and the characteristics of labor in the industry or post. In addition, if the laborer voluntarily requests to extend the working hours and increase the commission income, but the employer does not arrange overtime for him, it cannot be regarded as the existence of effective overtime. Of course, if the unit increases the royalty income by extending the working hours with the consent of the employees, it should be regarded as overtime work of the employees. Therefore, workers in special positions can certainly get overtime pay as long as they stay in the workplace and the time exceeds the total time of the comprehensive working hours system, regardless of the effect and purpose of overtime work. If we simply take the passage of time as the standard to determine the fact of overtime work, it will undoubtedly happen that the overtime wages of workers greatly exceed the normal wages, which will make enterprises bear a heavy economic burden and get real overtime benefits. Case study: Xiao Wang is the doorman on duty in a dormitory of a university apartment. He signed a labor contract with the university and implemented a comprehensive working hour system. Xiao Wang works by alternating two shifts. He can sleep and rest after 1 1 in the evening and start his shift at 8: 00 in the morning. In this way, Xiao Wang sometimes works the night shift and can't rest on weekends, so he resigned after working in the unit for a while. At the same time, he claims to the company that he works 12 hours every day, works overtime on weekends and does not rest on legal holidays. The unit thinks that Xiao Wang's sleeping time at night is not working hours, and it is a special type of work, so the unit also arranges a rest, so it does not agree to pay him overtime. Later, Xiao Wang took the university to court. The court investigation found that although the university janitor industry needs to keep the janitor in the duty room when working at night, you can usually rest for 7 hours at night without providing labor. Based on comprehensive calculation, Xiao Wang's total working hours did not exceed the legal standard time, so he only decided to pay overtime pay for legal holidays, but did not decide to pay overtime pay for universities and weekends. Lawyer's suggestion: Although it is necessary to review the effectiveness and purpose of overtime work for workers in special positions, this burden of proof is only a preliminary burden of proof and a reduction of the burden of proof, that is, as long as the workers can provide evidence to prove that overtime work did occur and was involuntary, the effectiveness proof does not need to reach the level of "reaching the performance appraisal standard of the employer". If the employer thinks that overtime work is invalid, it must disprove it, otherwise the employer will bear the risk of losing the case. Laborers can provide attendance sheets, handover records, payslips, witness testimony and other evidence. For the effectiveness of overtime, provide overtime notice, overtime approval form, etc. Purpose, and any evidence that they have the above two sexes in overtime can be provided.