Must I pay overtime salary to my employee if I ask him/her to work more than 8 hours per day and 40 hours per week?

It depends on the relevant employee’s type of working hours scheme.

There are three types of working hours schemes implemented in the PRC:

  • Standard working hours scheme (i.e., 8 hours a day and 40 hours a week)
  • Irregular working hours scheme
  • Comprehensive working hours scheme

Generally speaking, an employee who is covered by the standard working hours scheme is entitled to overtime salary if he/she is required to work more than 8 hours a day and 40 hours a week.

My employees are working under the standard working hours scheme. In order to earn more overtime salary, some of them ask to work 12 hours per day and 6 days per week. Can I legally agree to such a request?

You cannot agree as this may expose you to certain risks. PRC Labour Law provides that an employee must not work overtime for more than 3 hours in a normal working day or 36 hours in a month. The proposal by the employee would exceed such limit. In such a case, the relevant employees’ agreement (or request) and your full payment of overtime salary may not release you from being warned or fined by the relevant labour authority.

What kind of work will be regarded as overtime?

An employee who is subject to the standard working hours scheme will be regarded to have worked overtime in any of the following circumstances:

  • The employee works in excess of 8 hours in a normal working day (the “Normal Overtime”)
  • The employee works on a rest day (e.g., Saturday or Sunday) (the “Weekend Overtime”)
  • The employee works on any public holiday (i.e., 11 days in a year, including the New Year’s Day, the Spring Festival, the Tomb Sweeping Day, the Labour Day, the Dragon Boat Festival, the Mid-Autumn Festival and the National day) (the “Public Holiday Overtime”).

How much shall I pay for the above overtime work?

With respect to the Normal Overtime, you are required to pay at least 150% of the employee’s normal hourly rate as overtime salary. The overtime rate is 200% and 300% of the employee’s normal hourly rate for the Weekend Overtime and the Public Holiday Overtime respectively.

Can I avoid the overtime payment by providing time-off in lieu to the employee?

You can provide time-off in lieu for the Weekend Overtime only. That means, for any Normal Overtime or Public Holiday Overtime, you must pay overtime salary even if you provide time-off in lieu.

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