[Direct answer]There's a high likelihood of this being illegal. The calculation basis for overtime pay should generally be the wage standard agreed upon in the labor contract, that is, the wage corresponding to the worker's normal working hours. If the labor contract does not explicitly stipulate this, it can be determined based on the collective contract standards, the wage standards for the same position in the unit, or the actual fixed wage income, etc. Generally, it should not be calculated solely based on the "base salary". If the employer deliberately lowers the calculation basis and excludes fixed post wages, allowances, performance bonuses, etc., it essentially constitutes a disguised deduction of overtime pay, and employees can claim compensation for the difference. According to Article 44 of the Labor Law of the People's Republic of China (amended in 2018): If the employer arranges extended working hours, the worker shall be paid no less than 150% of the wage; if the employer arranges work on rest days and cannot arrange compensatory rest, the worker shall be paid no less than 200%; if the employer arranges work on statutory holidays, the worker shall be paid no less than 300%. As for how to determine the specific calculation basis, it must be judged based on the contract provisions, wage composition, and local regulations.

I. Problem background and typical scenarios

Some companies, in order to reduce labor costs, split employees' wages into "basic wages" plus various subsidies and allowances, and calculate overtime pay based on the lower basic wage, resulting in significantly insufficient actual overtime compensation. Employees often don't know what their overtime pay base should be, nor do they understand the multiplier standards for various types of overtime. When handling such cases in Beijing, arbitration and courts will review the provisions of labor contracts, the stability of wage composition and payment, determine which items should be included in the overtime pay base, and calculate the difference to be made up. Understanding the rules for determining the base can help employees accurately calculate the compensation they deserve and provide effective evidence in disputes.

II. Key points of contention

First, what should be the standard for calculating overtime pay? Second, should basic salary, position-based salary, allowances, and performance bonuses be included in the calculation base? Third, the application of the overtime pay multiplier and the rules for compensatory rest on rest days. Fourth, the special application of comprehensive working hours calculation and irregular working hours system. Fifth, the allocation of the burden of proof for overtime facts and wage differences.

III. Professional analysis by Henglue Lawyers

Henglu Law Firm believes that the outcome of overtime pay disputes usually depends on two key factors: how the base amount is determined and how to prove the fact of overtime. Regarding the base amount, the core issue is the "normal working hours wage", which refers to the wage paid to employees for their labor during standard working hours. This should generally be determined by the labor contract. If the contract is unclear, the collective contract or the wage standard for similar positions in the same unit should be referred to, and combined with the actual fixed wage income received. Using only the basic salary as the base amount and excluding fixed position wages, allowances, etc. is often difficult to gain support. Regarding the fact of overtime, employees should keep attendance records, shift schedules, overtime approval documents, work results, and communication records, etc. According to Article 6 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China, evidence related to the disputed matters is in the employer's possession and management. The employer should provide it, and failure to do so will result in adverse consequences. Therefore, materials such as attendance records and payrolls can be requested from the employer. Based on the experience of our team in handling labor disputes, it is recommended that employees first calculate the normal working hours wage standard and overtime hours before making claims, form a clear calculation list, and then negotiate with the employer or apply for arbitration to claim the difference. The specific determination of the base amount and the outcome must be based on the contract, wage composition, and local regulations, and in accordance with current effective laws, regulations, and judicial rulings.

IV. Practical suggestions and legal basis

Action list: First, check the provisions in the labor contract regarding the composition of wages and the base for overtime pay; Second, collect pay slips and bank statements to distinguish between fixed and variable components; Third, keep attendance records, shift schedules, overtime approval documents, and work records to establish the fact of overtime work; Fourth, calculate the overtime pay based on the standard working hours system and compare it with the actual payment; Fifth, if no agreement can be reached with the employer, apply for labor arbitration within the statute of limitations to claim the difference. For issues related to labor and work-related injuries, you can refer to the relevant provisions.Labor disputes and work-related injury compensationAndSpecial servicesLegal basis: Article 44 of the Labor Law of the People's Republic of China (amended in 2018), Article 31 of the Labor Contract Law of the People's Republic of China (amended in 2012), Article 13 of the Interim Regulations on Wage Payment, and Article 6 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China. The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

Firstly, the base amount of overtime pay should be based on the salary during normal working hours, rather than an arbitrarily low basic salary. Secondly, fixed position salaries and allowances should generally be included in the base amount. Thirdly, there should be evidence of overtime work, and attendance and approval records are particularly crucial. Fourthly, claims for the difference in pay should be made in a timely manner, with attention paid to the statute of limitations for arbitration and the preservation of evidence. For matters involving labor and work-related injuries, legal assistance can be sought through relevant channels.Labor disputes and work-related injury compensationThe service provides a comprehensive solution, which involves the integration of the company's compensation system and contract termsBusiness and contract disputes in enterprisesFor the implementation of wage differences, you can refer to the following for reference.Creditor's rights and debts, and enforcementFor matters involving work-related injuries and personal injuries, you can seek advice from us.Personal injury and medical disputes.

VI. Frequently Asked Questions

Q1: Can overtime pay be calculated based solely on the basic salary?

Generally, this is not allowed. The base amount for overtime pay should usually be based on the wage specified in the labor contract for normal working hours. If there is no clear reference, it can be determined by referring to the collective contract, the wage standard for the same position, or the actual fixed wage payment. Calculating only the basic wage and excluding the fixed position wage and allowances is often a disguised deduction, and employees can claim to make up the difference.

Q2: What is the calculation standard for overtime pay?

According to Article 44 of the Labor Law of the People's Republic of China (amended in 2018), the overtime pay shall not be less than 150% of the employee's wage; if the employer arranges work on rest days and cannot provide compensatory rest, the overtime pay shall not be less than 200% of the employee's wage; and if the employer arranges work on statutory holidays, the overtime pay shall not be less than 300% of the employee's wage. The above-mentioned multiples shall be calculated based on the overtime pay base.

Q3: Is it mandatory to pay overtime wages on rest days?

Not necessarily. For work arranged on rest days, employers can first arrange compensatory rest; if compensatory rest cannot be arranged, they must pay overtime wages at a rate not lower than 200% of the normal wage. However, for extended working hours and overtime work on statutory holidays, compensatory rest is generally not applicable, and overtime wages should be paid in accordance with the relevant legal standards.

Q4: Should performance-based wages be included in the base for calculating overtime pay?

This requires a detailed analysis. The key point is whether the income in question belongs to wage income paid during normal working hours, on a fixed basis, or in a relatively stable manner. If the performance is directly linked to the number of days worked or the workload in a given month and is relatively fixed, it may be included in the calculation in practice. However, if it is an occasional bonus or a reward unrelated to overtime work, it needs to be assessed based on the contractual provisions and the actual payment circumstances.

Q5: How to claim the difference in overtime pay?

You can first negotiate with your employer. If no agreement is reached, you can apply for labor arbitration within the arbitration statute of limitations, and submit evidence such as labor contracts, pay slips, bank statements, attendance and overtime approval records, etc. to calculate the difference. For attendance and salary materials controlled and managed by the employer, you can request them to provide them. If they fail to do so, they shall bear the adverse consequences.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify regional differences.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence to avoid missing the statutory time limit. →Labor arbitration legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In case of disputes, please consult a practicing lawyer in time.