[Direct answer]In the Beijing area, the burden of proof in disputes over overtime pay does not rest entirely on the workers, but follows the principle of "principle plus exception". In principle, when workers claim overtime pay, they should bear the burden of proof for the existence of overtime work, in accordance with Article 6 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China. However, Article 42 of the Interpretation of the Supreme People's Court on the Application of Law in the Trials of Labor Disputes clearly stipulates that if the worker has evidence to prove that the employer holds evidence of the existence of overtime work (such as attendance records and overtime approval forms), and the employer fails to provide such evidence, the employer shall bear the adverse consequences. Therefore, if the worker can initially prove that overtime work may have occurred and the evidence is controlled by the employer, the burden of proof will shift. For more details, please refer to the following link:Labor arbitration and legal services for work-related injury compensation.

1. Problem background and typical scenarios

Overtime pay disputes are a common type of labor disputes, with the core difficulty lying in evidence collection. Typical scenarios include: companies implementing electronic attendance systems but failing to provide employees with clock-in records; employees claiming years of overtime pay after leaving the company without written proof; companies defending against claims by arguing that "overtime is voluntary" or "unapproved overtime does not count"; employees only having scattered evidence such as WeChat work group notifications and emails, making it difficult to form a complete chain of evidence; and employees in positions subject to comprehensive or irregular working hours having different standards for determining overtime. In such disputes, whoever holds attendance, scheduling, and approval records holds the initiative in evidence collection, which directly affects the outcome of the case.

II. Key points of contention

The controversy focuses on four points: First, the starting point of evidence collection. Workers need to prove that "there may be overtime work", otherwise, the employer's burden of proof cannot be triggered; Second, the ownership of evidence. The attendance records and approval systems are managed by the employer, and it is difficult for workers to obtain them. This is the starting point of the judicial interpretation of the reversal of the burden of proof; Third, the determination of the nature of overtime work. Whether the overtime work arranged by the employer, approved by the employer, or even not approved but actually benefited from and accepted the results by the employer, should all be regarded as overtime work? The standards of adjudication are not uniform; Fourth, the statute of limitations. The claim for overtime pay is subject to the statute of limitations for arbitration, and it is more secure to claim it within one year after leaving the job. For related enforcement and evidence fixation, please refer to the relevant provisions.Creditor-debtor relations and enforcement case services.

III. Professional analysis by Henglue Lawyers

Based on Henglue Lawyer's practical observations in handling similar cases, the breakthroughs in overtime pay cases often lie in two aspects: "evidence control" and "overtime definition". Firstly, workers don't need to strictly demand to keep all attendance records. As long as they can prove that overtime is arranged by the employer and point out that the attendance and approval records are kept by the employer, they can prompt the arbitration tribunal to require the employer to provide evidence. If the employer refuses to provide evidence on the grounds of data loss or system replacement, they will face corresponding unfavorable evaluations. Secondly, in terms of overtime definition, multiple sources of evidence such as electronic attendance screenshots, access control records, delivery times of work results, and client communication records can corroborate each other and are more convincing than single pieces of evidence. For positions subject to special working hours systems, it is necessary to first verify whether they have undergone administrative approval. If not approved, the overtime identification rules under standard working hours may still apply. Employers can improve overtime approval and attendance record keeping to not only standardize management but also reduce the risk of providing evidence in disputes. For related compliance issues, please consult us for further assistance.Business and contract dispute resolution services for enterprises.

IV. Practical suggestions and legal basis

In terms of legal basis, Article 6 of the "Mediation and Arbitration Law of the People's Republic of China on Labor Disputes" (effective May 1, 2008) stipulates that the party claiming rights has the responsibility to provide evidence. Where the matters related to the dispute are in the control and management of the employer, the employer shall provide the evidence. If the employer fails to do so, the employer shall bear the adverse consequences. Article 42 of the "Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trial of Labor Dispute Cases (I)" (effective January 1, 2021) further clarifies the above-mentioned rules on the transfer of evidence in the case of overtime pay. Article 44 of the "Labor Law of the People's Republic of China" (effective January 1, 1995) defines different wage standards for extended working hours, rest days, and overtime work on statutory holidays. Practical suggestions: regularly take screenshots of attendance records and save overtime approval and task records during employment; organize work traces such as WeChat and emails when leaving the job; first list the evidence held by the employer when making claims and apply for an order to provide the evidence; and pay attention to filing a claim within the arbitration statute of limitations. For more guidance on labor rights protection, please visitLabor arbitration and legal services for work-related injury compensation.

5. Henglue Law Firm's Reminder

The essence of overtime pay disputes is a battle of evidence. Workers cannot be passive because "the evidence is in the hands of the employer", nor can they make claims based solely on subjective feelings. The most effective approach in practice is to first complete the preliminary evidence collection and then push the employer to provide the evidence under its control. Employers, on the other hand, should balance management efficiency and evidence-gathering risks by implementing standardized overtime approval and attendance tracking systems. Whether making claims or defending against them, the statute of limitations, the calculation basis, and the working hour system are all prerequisites that must be clarified.

For more guidance on labor rights protection, please visitBeijing Henglu Law FirmAndSpecial services and other case services.

VI. Frequently Asked Questions

Q1: I only have the overtime notice in my WeChat work group. Can this be used as proof of overtime work?

This can be partially proven, but it is recommended to provide additional evidence. Notifications from WeChat work groups, emails, and records of task assignments can prove that the unit has arranged work, which can serve as preliminary evidence of overtime arrangements; however, to fully claim overtime pay, it is necessary to prove the actual overtime hours, preferably supported by attendance records, delivery records, and colleagues' testimonies. If these attendance-related evidence is held by the employer, the worker can provide clues and apply to the arbitration tribunal to order the unit to provide it. If the unit refuses to provide it without a valid reason, it will bear adverse consequences. Isolated single messages have limited probative value, so it is best to form a chain of evidence that mutually corroborates the time, content, and results.

Q2: Is it legal for the company to say that there's no overtime pay for "voluntary overtime"?

Not necessarily. If overtime work is arranged by the employer, or if the employer assigns tasks without going through the approval process but the employee actually accepts the work results, even if it is called "voluntary", it may still be deemed as overtime work and overtime pay should be paid. Conversely, if the employee simply voluntarily extends their working hours without the employer's arrangement or benefit, it will be more difficult to claim compensation. The key point is whether the overtime work is "arranged by the employer or for the employer's benefit and recognized by the employer". Employees should pay attention to preserving evidence of the employer's arrangement of overtime work. If the employer denies all overtime pay by using standard contract clauses, the defense may not be fully supported.

Q3: The attendance records are in the company's hands, and I can't get them. What should I do?

This is precisely the significance of the law establishing rules for the transfer of the burden of proof. In arbitration, workers can state that the attendance records are managed by the employer's electronic system and that they are unable to obtain them, and request the arbitration tribunal to order the employer to provide them. According to relevant judicial interpretations, if the worker can prove that the employer has the records but refuses to provide them, the employer shall bear the adverse consequences. In practice, workers can also provide evidence such as screenshots of clock-in records for certain periods, photos of shift schedules, and overtime pay items reflected in pay slips to demonstrate that the employer does indeed have attendance management systems, thereby strengthening the legitimacy of their request for the employer to provide complete records. Never give up claiming your rights just because you "can't get them". You should actively apply for investigation and burden of proof orders.

Q4: Is the calculation base for overtime pay the basic salary or the full salary?

Generally, the calculation basis for overtime pay is the worker's normal working hours salary, not just the basic salary. The calculation basis for overtime pay usually includes hourly wages, piece-rate wages, and bonuses, allowances, and subsidies that constitute normal working hours compensation in monetary income; there are differences in interpretation across regions regarding whether to include all earned wages in the calculation basis. Some use the contractually agreed salary, while others use the actual average salary. The overtime wage standard itself is based on Article 44 of the Labor Law: for extended working hours, it shall not be less than 150% of the normal working hours wage; for work on rest days that cannot be compensated by rest days, it shall not be less than 200% of the normal working hours wage; and for work on statutory holidays, it shall not be less than 300% of the normal working hours wage. When claiming overtime pay, it is necessary to refer to local judicial interpretations and contract and pay slip records to avoid the calculation basis being underestimated.

Q5: Can I still claim back my overtime pay after leaving the company many years ago?

Subject to the statute of limitations for arbitration, there are exceptions. The general statute of limitations for applying for arbitration in labor disputes is one year, starting from the date when the party knows or should have known that their rights have been infringed; if a dispute arises during the existence of the labor relationship due to arrears in labor remuneration (including overtime pay), the worker may not be subject to the one-year limitation, but if the labor relationship terminates, the worker shall file a claim within one year from the date of termination. Therefore, to recover historical overtime pay after leaving the job, it is usually necessary to apply for arbitration within one year after leaving the job, otherwise, the employer may raise the statute of limitations defense. It is recommended to organize overtime evidence immediately upon leaving the job and assert claims within the statute of limitations. If the employer has continuously failed to pay overtime pay during the employment period, it is necessary to fix the evidence as soon as possible to avoid exceeding the statutory time limit.

The above content is based on the judicial practice in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Law Firm about specific situations.

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