[Direct answer]Overtime pay is part of labor compensation. According to Article 27 of the Labor Dispute Mediation and Arbitration Law, employees can claim overtime pay during their employment without being subject to the one-year arbitration statute of limitations; if the labor relationship terminates, the claim must be filed within one year from the date of termination. Overtime pay is calculated at 1.5 times the daily wage, 2 times the weekly wage, and 3 times the statutory holiday wage. Attendance records and pay slips are key evidence. If the employer refuses to provide attendance records despite having them in their possession, they will bear the adverse consequences.

1. Problem background and typical scenarios

Overtime pay disputes are common in industries such as the Internet, manufacturing, and retail: either long-term overtime is paid at a fixed salary, or overtime pay is replaced by compensatory time off, or it's only discovered years later during the settlement of severance payments. What workers care most about is "how many years they can pursue compensation" and "whether they can still claim compensation after leaving the job". In practice, due to the fact that wage and attendance records are held by the employer and workers have limited evidence-gathering capabilities, the statute of limitations and evidence-gathering rules directly affect the outcome. Henglue Law Firm once represented a case of pursuing labor compensation: a telecom company delayed paying two months' wages, and the worker was forced to terminate the labor contract. After arbitration, first-instance and second-instance trials, the worker eventually received 295,207.08 yuan in severance compensation and 40,347.66 yuan in unpaid annual leave wages, highlighting the importance of grasping the statute of limitations and organizing evidence in cases involving the pursuit of labor compensation.

II. Key points of dispute

  • The statute of limitations begins to run: there is no one-year limitation for claiming labor remuneration (including overtime pay) while employed, and the claim must be filed within one year after the termination of the labor relationship; for general labor disputes, the statute of limitations begins to run from the date on which the worker knows or should have known that his rights have been infringed.
  • Burden of proof: The worker shall first provide evidence of the overtime work; if there is evidence to prove that the employer has the evidence of overtime work (such as attendance records) but refuses to provide it, the employer shall bear the adverse consequences.
  • Calculation criteria: Whether the base for overtime pay is calculated based on normal wages or "basic wages", whether compensatory leave can be deducted, and how to distinguish between on-call duty and overtime work are often used by employers to reduce the amount of overtime pay they should pay.

III. Professional analysis by Henglue Law Firm

According to Henglue Lawyers, the key to recovering overtime pay lies in transforming "actual overtime" into "verifiable overtime": attendance records, shift schedules, work system logs, overtime approval forms, and overtime meal and taxi reimbursement records can all form an evidence chain. According to Article 42 of the Interpretation of the Supreme People's Court on the Application of Law in the Trials of Labor Disputes (I), workers claiming overtime pay should provide evidence of the overtime facts, but if there is evidence proving that the employer holds evidence of the overtime facts but fails to provide it, the employer shall bear the adverse consequences; Article 6 of the Interim Regulations on Wage Payment requires employers to record wage payments in writing and keep the records for more than two years for future reference. If "overtime pay" is included in the wage composition, employers need to check monthly whether the amount is sufficient. In the aforementioned case, the court combined the wage payment records and the termination timeline to determine that the employer failed to pay the labor remuneration in a timely and sufficient manner, and supported the economic compensation for forced termination. In practice, it is recommended to sort out the overtime hours and the amount paid annually, so that the difference will be clear at a glance, which will be more powerful in both negotiation and arbitration.

IV. Practical suggestions and legal basis

It is recommended to follow three steps: 1. **Step 1**: Keep records during employment. Regularly check the details of overtime pay in your payroll and promptly request payment in writing, keeping the records as evidence of interrupting the statute of limitations. 2. **Step 2**: Gather evidence, including attendance records, work schedules, work communication, pay slips, and reimbursement receipts. 3. **Step 3**: File a labor arbitration claim within one year after the termination of the employment relationship. The calculation of compensation shall follow Article 44 of the Labor Law: - Overtime on weekdays: no less than 150% of the employee's wage; - Overtime on rest days without compensatory rest: no less than 200% of the wage; - Overtime on statutory holidays: no less than 300% of the wage. **Main legal basis**: - Article 27 of the Labor Dispute Mediation and Arbitration Law (statute of limitations and special rules on labor compensation); - Article 44 of the Labor Law (overtime pay standards); - Article 42 of the Interpretation of the Supreme People's Court on Legal Issues in the Trials of Labor Disputes (First Edition) (burden of proof). If the employer refuses to comply after a successful arbitration, you can apply for court enforcement. For more information, please refer to the relevant provisions.Creditor-debtor relations and enforcement case services.

5. Henglu Law Firm's Advice

This case is handled by Beijing Henglu Law Firm.Wang XinruiThe lawyer (practice license number: 11101202111290829, subject to the certificate issued by the judicial administrative organ) acted as the agent, and the second-instance court upheld the original judgment. Henglue Law Firm reminds you: It is most secure to claim overtime pay during employment. After leaving the job, you must grasp the one-year statute of limitations. Do not sign documents such as "overtime pay has been settled" and "voluntarily giving up overtime pay". Compensatory leave is generally limited to overtime on rest days and should be arranged through consultation. Overtime pay on statutory holidays cannot be replaced by compensatory leave. If you need a case evaluation, please contact us.Labor arbitration and work-related injury compensation servicesThe team, or visitBeijing Henglu Law Firm.

Q1: Can I still claim overtime pay from several years ago after leaving my job?

You can try. Overtime pay is part of labor compensation, and claims during employment are not subject to the one-year arbitration statute of limitations; if the labor relationship is terminated, the claim must be filed within one year from the date of termination. In theory, the unpaid overtime can be traced back to the entire employment period, but the actual degree of support depends on the evidence: the unit's wage payment records only need to be kept for two years for reference, and the attendance and payment vouchers from earlier periods often require the worker to provide evidence themselves. It is recommended to start organizing materials such as attendance records, work schedules, and wage records immediately after leaving the job, and to file an arbitration claim within one year. The earlier you act, the more complete the evidence will be. If the statute of limitations has passed and there are no interruption circumstances, once the other party raises the statute of limitations defense, the claim will face the risk of losing the case.

Q2: Is it legal for the company to replace overtime pay with compensatory leave?

It depends on the circumstances. If the employer arranges overtime work on rest days and provides equivalent compensatory rest time, it does not need to pay overtime pay for rest days; but if the employer extends working hours on working days or arranges overtime work on statutory holidays, it must pay overtime pay according to law and cannot substitute compensatory rest time for it. In other words, compensatory rest time only applies to overtime work on rest days. If the company simply deducts all overtime work with compensatory rest time or requires employees to first use annual leave to offset overtime hours, it is inconsistent with Article 44 of the Labor Law. Employees can calculate overtime pay separately based on the types of overtime work: 1.5 times for working days, 2 times for rest days, and 3 times for statutory holidays. Then, they can claim the difference based on the amount paid in the payroll, and the calculation table itself is a strong piece of evidence in arbitration.

Q3: How is the calculation base for overtime pay determined?

Generally, the base amount is calculated based on the worker's normal working hours and converted according to the monthly salary stipulated in the labor contract, including the basic salary, fixed allowances, and bonuses with the nature of labor compensation. If there is no clear agreement, the monthly average salary during normal working hours shall be used as the basis. In most cases, the practice of the company using only the "basic salary" as the base and excluding performance bonuses and subsidies is not supported. It is also important to note that overtime pay should be paid together with the monthly salary and be listed separately on the payroll. Units that fail to do so will have difficulty proving that the overtime pay has been paid in the future. In cases with major disputes over the base amount, the payroll records, the salary system, and the provisions of the labor contract are the core evidence. If necessary, the arbitration committee may order the unit to submit the relevant materials.

Q4: Can I claim overtime pay without an attendance check-in record?

You can make a claim, but you need to build the evidence chain yourself. Available evidence includes: the log of late-night operations on the work system and emails, overtime communication on WeCom or DingTalk, overtime approval records, reimbursement for ride-hailing and overtime meals, witness statements from colleagues, and handwritten or electronic shift schedules. According to Article 42 of the Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trial of Labor Disputes, if the worker has evidence to prove that the employer holds evidence of overtime (such as attendance records) but fails to provide it, the employer shall bear the adverse consequences; at the arbitration stage, the worker may apply to the arbitration committee to order the employer to submit the attendance records, and the employer shall bear the adverse consequences if it refuses to submit them. When the evidence is scattered, it is more effective to sort out the timeline first and then strengthen it rather than piling up the evidence randomly.

Q5: Will applying for arbitration during the employment period affect my job?

The law allows employees to apply for arbitration and claim labor compensation without being subject to the one-year statute of limitations, but in practice, it is necessary to weigh the pros and cons. The safe approach is: first, send a written demand for payment and keep the records. Many employers will issue the payment after seeing the evidence; if no agreement is reached, then apply for arbitration. Workers are legally protected in exercising their rights, and employers are not allowed to retaliate by dismissing or deducting wages. If they are unlawfully dismissed for this reason, they may instead claim double compensation. Whether to protect their rights while still employed and at what pace to proceed, it is recommended to consult a lawyer for an assessment first to avoid emotional conflicts that may damage both evidence and initiative.

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