[Direct answer]In the Beijing area, overtime work on statutory holidays cannot be offset by adjusting working hours. According to Article 44 of the Labor Law of the People's Republic of China (adopted on July 5, 1994 and amended and implemented on December 29, 2018), if an employer arranges for workers to work overtime, they shall pay a wage not less than 150% of the worker's regular wage; if an employer arranges for workers to work on rest days and cannot arrange compensatory rest, they shall pay a wage not less than 200% of the worker's regular wage; if an employer arranges for workers to work on statutory holidays, they shall pay a wage not less than 300% of the worker's regular wage. Therefore, the three-fold overtime pay on statutory holidays is a mandatory requirement, and employers cannot replace it with compensatory rest. This is different from the rule that overtime work on working days does not require overtime pay after compensatory rest. In practice, if an employer offsets overtime work on statutory holidays with compensatory rest, workers can legally claim the difference in overtime pay. The calculation base is generally determined by the worker's regular working hours. For specific rules, please refer to the current effective laws, regulations, and judicial rulings.Labor arbitration and work-related injury compensationThe service description in the column.

I. Problem Background and Typical Scenarios

Most of those who consult this issue are employees who still need to work on holidays or are assigned to work overtime. There are three common situations: being assigned to work on statutory holidays or on duty, and being arranged for compensatory rest by the unit; being assigned to work overtime before and after holidays and being promised compensatory rest; and the unit not recognizing it as overtime on the grounds that the workload is not heavy. For more information, please refer to the following link:Special services and other casesIn practice, the most easily confused are the differences in compensation rules for three types of overtime work: overtime work on weekdays can be arranged for compensatory rest; overtime work on rest days must be paid double wages when compensatory rest cannot be arranged; and overtime work on statutory holidays must be paid triple wages and cannot be replaced by compensatory rest. Confusing the three types often results in a substantial reduction of workers' rights. Therefore, when checking the types of dates, we should first distinguish between statutory holidays and adjusted holidays, and then determine the applicable wage standards.

II. Key points of dispute

1. The establishment of the fact of overtime work, including its arrangement and actual implementation. 2. The determination and calculation of overtime hours. 3. The definition of statutory holidays, including the differences between statutory holidays and adjusted holidays. 4. The effectiveness of employers using adjusted working hours to offset triple wages. 5. The determination of the calculation base for overtime wages. 6. Whether to implement a comprehensive working hour calculation system and its impact. 7. The application of the arbitration statute of limitations. 8. How to determine whether the employer has failed to arrange rest or duty periods. For details on the application of these rules, please refer to the relevant documents.Special services and other casesThe description of the column.

III. Professional analysis by Henglue Lawyers

Based on the experience of handling labor dispute cases, the key to resolving disputes over overtime work on holidays lies in distinguishing two aspects. First, the distinction between statutory holidays and rest days: statutory holidays are mandatory, and overtime pay cannot be replaced by compensatory rest; while overtime work on weekends and other rest days can be compensated by rest days after arrangement, and overtime pay is not required. In practice, employers often confuse the two, claiming that overtime work on holidays can also be compensated by rest days, and workers need to clarify the corresponding rules. Second, the distinction between on-call duty and overtime work: on-call duty focuses on emergency response and safety prevention, usually does not require continuous performance of one's own duties, and whether it constitutes overtime work is controversial; while overtime work refers to continuing to perform one's own duties on rest days or statutory holidays. When handling such cases, lawyers usually first fix the on-call duty schedule, notification records, and descriptions of work content, and then demonstrate whether it constitutes overtime work or on-call duty, thus determining the applicable wage standards.

IV. Practical suggestions and legal basis

Action recommendations: 1. Save the notice of overtime arrangements, duty rosters, and shift schedules during holidays; 2. Preserve evidence of actual performance, including access control records, attendance records, and the time of submitting work results; 3. Distinguish between statutory holidays and adjusted holiday schedules to avoid mixing up the rules; 4. Calculate the basis for overtime pay and explain the calculation method; 5. Verify whether the unit implements a standard working hour system or a comprehensive working hour system; 6. For situations where overtime is offset by adjusted holiday schedules, clearly claim the difference; 7. Submit requests within the arbitration statute of limitations. Legal basis: Articles 36, 41, 44, and 45 of the Labor Law of the People's Republic of China (adopted on July 5, 1994, amended and implemented on December 29, 2018); Article 31 of the Labor Contract Law of the People's Republic of China (adopted on June 29, 2007, implemented on January 1, 2008, and amended and implemented on December 28, 2012); Specifically, the current effective laws, regulations, and judicial rulings shall prevail.

5. Henglu Law Firm's Advice

Firstly, the three-fold overtime pay for working on statutory holidays cannot be replaced by compensatory time off, as this is a mandatory requirement. Secondly, statutory holidays and compensatory time off holidays are not the same concept, and they need to be accurately distinguished. Thirdly, there is controversy over whether on-call duty constitutes overtime, the key point being whether the employee is continuously engaged in their regular work. Fourthly, the overtime pay base usually does not include performance-based and floating components, and this needs to be demonstrated based on the composition of the employee's salary. Fifthly, the rules for determining overtime under the comprehensive calculation of working hours system are different, so it is necessary to first verify the type of working hours system. Sixthly, it is important to preserve the original documents and the complete context to avoid doubts about their authenticity. Seventhly, requests for overtime pay are subject to arbitration time limits and should be raised in a timely manner.

VI. Frequently Asked Questions

Q1: Can overtime work on statutory holidays be replaced by compensatory leave?

No. According to Article 44 of the Labor Law, if employees are required to work on statutory holidays, they shall be paid not less than 300% of their wages. This rule is mandatory and cannot be replaced by arranging compensatory rest. This is different from the rules that overtime work on weekdays can be compensated with compensatory rest and overtime work on rest days can also be compensated with compensatory rest without paying overtime pay. If the employer uses compensatory rest to offset the threefold wage, the employee can claim the difference in accordance with the law.

Q2: How is the base amount for the tripled salary calculated?

In principle, the calculation basis is the worker's normal working hours' salary. In practice, floating income such as performance-based wages, allowances, subsidies, and year-end bonuses, which are paid monthly, are usually not included, as these are not fixed and predictable. When making a claim, the worker should provide the provisions of the labor contract, a description of the wage composition, and recent wage payment records to prove the specific amount of the fixed wage. The calculation method and evidentiary requirements can be referred to for reference.Business and contract disputes in enterprisesColumn.

Q3: Is there a difference between statutory holidays and weekends with adjusted working hours?

There are fundamental differences. Statutory holidays are uniformly stipulated by the state, and the overtime pay for them shall not be less than 300% of the normal wage and cannot be replaced by compensatory rest; the adjusted holidays and ordinary weekends are rest days. If work is arranged on these days and compensatory rest cannot be provided, the employer shall pay not less than 200% of the normal wage. If compensatory rest is provided, the employer shall not pay overtime pay. Therefore, when calculating, we should accurately distinguish the types of dates and not claim according to the same standard in a general way.

Q4: Is working on duty during holidays considered overtime?

There is controversy over this. On-call duty usually focuses on emergency response and safety prevention, and does not require continuous performance of one's regular duties. Whether it constitutes overtime work needs to be judged based on specific circumstances. If it is necessary to continuously handle business and perform one's regular duties during on-call duty, and there are shift schedules and work records to support it, there is a greater likelihood that it will be recognized as overtime work; if it is just being on-call without specific work output, it may not be recognized as overtime work. In practice, it is necessary to first fix the shift schedules and work content materials, and the overall approach to protecting one's rights can be referred to for reference.Labor arbitration and work-related injury compensationColumn.

Q5: The company said they've already compensated us for the holidays. Can we still ask for more?

It depends on the form and amount of the compensation. If the employer has paid three times the wage in full, the rights for the corresponding period have already been realized; if the employer only arranged for compensatory leave, paid the ordinary wage, or provided other forms of subsidies, there is a difference between this and the statutory requirement of three times the wage, and the employee can still claim the difference. It is recommended to check the nature and amount of the actual payments and specify the calculation method in the claim. For related accounting considerations, please refer to the following document:Special services and other casesColumn.

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