[Direct answer]In the Beijing area, if workers are not paid overtime wages, they can still claim compensation according to the law, but they must first prove that overtime work actually occurred. According to Article 6 of the "Mediation and Arbitration Law of the People's Republic of China for Labor Disputes", if the evidence related to the dispute is in the employer's possession, the employer shall provide it; if the employer refuses to provide it, it shall bear the unfavorable consequences. Article 42 of the "Interpretation of the Supreme People's Court on the Application of Law in the Trials of Labor Disputes Cases (I)" (effective January 1, 2021) clearly stipulates that workers claiming overtime wages should provide evidence of overtime work, but if there is evidence proving that the employer holds relevant evidence and refuses to provide it, the employer shall bear the responsibility. It is recommended to keep records of overtime approval, attendance, and wages. If no agreement is reached through negotiation, apply for arbitration in a timely manner. For more details, please refer to the following link:Labor arbitration and legal services for work-related injury compensation.

I. Problem Background and Typical Scenarios

The controversy over overtime pay is particularly prominent in the manufacturing, internet, and service industries. Common situations include: companies verbally requiring overtime without any approval records; replacing overtime pay with "adjusted rest days" without obtaining consent; assigning work tasks through DingTalk and WeChat after work hours without counting it as overtime; and employees on commission-based pay systems being subject to ambiguous working hour calculations. Many workers only realize when they leave their jobs that there is no overtime item on their pay slips, but they struggle to seek compensation due to the lack of written evidence. The key to such disputes lies not in "whether overtime has occurred", but in "whether overtime can be proven". Evidence awareness often determines the success or failure of protecting rights. Relevant working hours and contract determinations can be combined for reference.Business and contract dispute resolution services for enterprisesComprehensive judgment.

II. Key points of contention

There are three key points of contention. Firstly, the determination of overtime work: overtime work recognized by the employer, overtime work arranged by the supervisor via WeChat, and overtime work stipulated in the rules and regulations all pose increasing challenges in terms of proof. Unapproved voluntary overtime is generally not considered overtime work. Secondly, the basis for calculating overtime pay: whether it should be based on the salary agreed in the labor contract, the actual salary paid, or the basic salary. There are differences in this regard across different regions, and it is necessary to consider the wage structure and local regulations. Thirdly, the allocation of the burden of proof: after the worker provides initial evidence of overtime work, the employer should provide evidence such as attendance records and shift schedules that are in the employer's possession. If the employer destroys or refuses to provide such evidence, the employer will bear adverse consequences. In cases involving the enforcement of arbitral awards, reference can be made to the relevant provisions.Creditor-debtor relations and enforcement case services.

III. Professional analysis by Henglue Law Firm

Based on practical observations in handling labor dispute cases, the most common problem with overtime pay cases is that "the evidence is scattered and difficult to form a closed loop". Many workers only have scattered WeChat records, lacking mutual corroboration between overtime approval forms, attendance punching records, and pay slips, making it difficult for arbitration to support their claims. Henglue Lawyers usually suggest the following: Develop the habit of keeping overtime notifications, schedules, and punching records from the day of employment; when claiming overtime pay, first compile a list of "date - duration - work content - approver or arranger", and then compare it with the pay slip; if the employer refuses to provide attendance records, apply to the arbitration tribunal to order the employer to submit them according to law. In similar cases handled in the Beijing area, the arbitration and courts are increasingly strict in assigning the burden of proof for "the employer's possession of evidence", and the chances of success for workers after initial evidence presentation have significantly increased. Complex cases can be assisted by legal professionals.Special services and other case servicesDevelop an evidence collection strategy.

IV. Practical suggestions and legal basis

The core legal basis is Article 44 of the Labor Law of the People's Republic of China (implemented on January 1, 1995 and amended on August 27, 2009) regarding the payment standards for overtime wages; Article 6 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China (implemented on May 1, 2008) regarding the burden of proof; and Article 42 of the Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trials of Labor Disputes (implemented on January 1, 2021) regarding the burden of proof for overtime wages. Practical suggestions: Establish an overtime evidence list and fix the original carriers; first consult with the unit in writing and keep the records; if no agreement is reached, apply for labor arbitration within the one-year arbitration statute of limitations; and promptly apply for evidence orders against the unit for refusing to submit attendance records. For claims spanning multiple years, they can be connected together.Creditor-debtor relations and enforcement case servicesAdvance.

5. Henglue Law Firm's Reminder

When claiming overtime pay, it's crucial to avoid making unsubstantiated claims. First, organize WeChat messages, approval documents, attendance records, and pay slips into a verifiable chain of evidence. Second, verify whether the employer has access to attendance records but refuses to provide them, and shift the burden of proof to them according to the law. Third, note that the arbitration statute of limitations is one year, starting from the date you become aware of the infringement of your rights. Don't delay taking action. At the same time, distinguish between "voluntary overtime" and "overtime arranged by the employer". The former is more difficult to provide evidence for. If there are unclear issues regarding the calculation basis or the allocation of evidence, it's advisable to consult a professional lawyer as soon as possible to avoid losing evidence. For systematic evidence collection, you can refer to the following resources for guidance:Special services and other case services.

VI. Frequently Asked Questions

Q1: Can you win the claim for overtime pay if you haven't signed the approval form?

Whether the claim for overtime pay without a signed approval form can be supported depends on the evidence. If you can provide preliminary evidence of overtime facts, such as WeChat arrangement records, clock-in and attendance records, and pay slips, and the employer refuses to provide attendance records despite having them, the arbitration and court may legally presume the existence of overtime facts and support the claim for overtime pay; if there are only oral statements without any supporting evidence, the risk of losing the case is higher. It is recommended to first secure the evidence and then make the claim. Do not believe in unrealistic promises of winning the case. The outcome of the case depends on the facts and the evidence provided.

Q2: If I work overtime but am not paid overtime pay, what evidence do I need to prepare?

The core evidence includes: overtime approval forms or written arrangements by supervisors, attendance records from DingTalk or timekeeping systems, communication records arranging overtime work via WeChat or emails, pay slips and bank transaction records (proving unpaid overtime), shift schedules, and witness statements from colleagues. The evidence should be organized around the three points of "employer's arrangement - actual effort - unpaid compensation". The employer may be ordered by the arbitration tribunal to submit the attendance and shift schedules in its possession, and the employer will bear adverse consequences if it refuses to provide them. The more complete the materials are, the easier it will be for the claim to be accepted.

Q3: How much do lawyers' fees and litigation costs amount to when seeking compensation for overtime work?

Arbitration itself does not charge fees; if a lawsuit is filed, the acceptance fee shall be paid according to the amount of the claim as the basis, and shall be borne by the losing party. Attorney's fees are related to the complexity of the case, the amount of the claim, and the lawyer's qualifications. They are usually charged on a per-case basis or a percentage of the amount of the claim, with the specific charges subject to the contract of entrustment. There is no unified government pricing. For disputes over small overtime pay, it is recommended to first evaluate the cost-benefit ratio, and to assert claims for cases with sufficient evidence in a timely manner to avoid giving up reasonable rights due to high costs.

Q4: How long does it usually take to resolve disputes over overtime pay?

Labor arbitration cases are generally concluded within 45 days from the date of acceptance, and the time limit may be extended by 15 days if the case is complex. For cases where the parties appeal against the arbitration award, the first-instance ordinary procedure lasts six months and the summary procedure lasts three months. Overall, it often takes several months from arbitration to recover the overtime pay. It is recommended to apply for arbitration as soon as possible within the statute of limitations, and to apply for evidence orders and property preservation at the same time to prevent the employer from transferring assets or losing attendance records, so as to shorten the actual period of rights protection.

Q5: The company doesn't pay overtime, what should I do specifically?

It is recommended to follow these four steps: First, immediately organize overtime notifications, attendance records, pay slips, etc. to form a list of dates, durations, and contents; Second, first consult with the unit in writing and keep the receipt. If no agreement is reached, apply for labor arbitration within the one-year statute of limitations; Third, apply in court to order the unit to submit the attendance and scheduling evidence it possesses; Fourth, if you are not satisfied with the ruling, file a lawsuit in accordance with the law. After winning the case, apply for enforcement. Throughout the process, keep communication records and, if necessary, hire a lawyer to assist in evidence collection and representation to increase the likelihood of your claims being supported.

The above answer is based on the judicial practice in Beijing. The adjudication guidelines in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, 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. If you encounter disputes, please consult a practicing lawyer in time.