[Direct answer]No. Overtime pay is a statutory additional compensation for overtime work. According to Article 44 of the Labor Law of the People's Republic of China (implemented on January 1, 1995): Overtime work on working days shall be paid at not less than 150% of the wage; overtime work on rest days that cannot be compensated by rest shall be paid at not less than 200%; and overtime work on statutory holidays shall be paid at not less than 300%. The calculation basis is the monthly wage of normal attendance (including basic wages, bonuses, allowances and other regular wage income), and the base salary is only the lower limit of it. The "package price" method of lowering the base salary and calculating overtime pay based on the base salary is invalid if it is lower than the statutory standard.

I. Problem Background and Typical Scenarios

The job offer states, "The base salary is 8,000 yuan, including overtime," but after starting work, employees are forced to work 40 hours of overtime per month, yet they don't receive any overtime pay at all; or the overtime pay on the pay slip is calculated at half the base salary. The relationship between the base salary and overtime pay is one of the most misunderstood wage rules.

II. Key points of contention

First, how to determine the base for overtime pay — comparing the contract provisions, the structure of the pay slip, and the actual income. Second, the effectiveness of the "fixed salary system" — the breakdown of the implied overtime pay in the total salary. Third, the burden of proof for overtime work. Fourth, the relationship between the overtime approval system and actual overtime work.

III. Professional analysis by Henglue Lawyers

Three-level disassembly. 1. **First level: Base salary rule**: - Overtime pay is calculated based on the normal working hours specified in the labor contract. - If the contract is unclear, the actual monthly income after deducting overtime pay is used as the base. - Regular bonuses and allowances are excluded from the base, and only the minimum base salary is used for calculation. If it is lower than the legal standard, it is invalid. - In Beijing's judicial interpretation, fixed performance bonuses and allowances are generally included in the base, while non-fixed floating bonuses are reviewed on a case-by-case basis. 2. **Second level: Review of fixed salary systems**: - The agreement that "monthly salary includes overtime pay" is not illegal in itself, but it must pass the verification test. - After separating the monthly salary into normal working hours and overtime pay according to legal standards, the normal working hours must not be lower than the minimum wage standard, and the overtime pay must not be lower than the legal multiplier. - If the verification fails, the difference must be compensated. - Common pitfalls include: - A monthly salary of 15,000 yuan for a 60-hour workweek, where the normal working hours are lower than the standard after verification. The worker can claim the difference. 3. **Third level: Facts and evidence**: - For overtime pay disputes, the burden of proof lies with the employer. - Evidence includes attendance records, clock-in data, overtime approval forms, work group arrangements, and weekend duty schedules. - If the company has an overtime approval system, overtime that was arranged without approval (e.g., a leader assigning work at 10 PM and reviewing it) can still be claimed. - Self-compiled overtime logs have weaker evidentiary value and must be supported by company-issued evidence. - Note the statute of limitations: Disputes over unpaid wages are not subject to the one-year arbitration time limit during employment. Claims must be made within one year after termination, and overtime pay is considered labor compensation, subject to the same rules.

IV. Practical suggestions and legal basis

Action List: 1. First step: Check the amount of overtime pay and the number of overtime hours in the pay slip on a monthly basis. 2. Second step: Keep evidence of attendance and overtime arrangements. 3. Third step: If no agreement can be reached on the discrepancy, apply for arbitration within the statute of limitations and request a detailed breakdown of the overtime hours and the difference in multipliers for each time period. 4. Fourth step: If claimed during employment, the employer may be required to make up for the overtime pay; if claimed during the settlement of accounts upon leaving the job, the claim should be made simultaneously. Main legal basis: - Article 36, Article 41, and Article 44 of the Labor Law of the People's Republic of China (effective January 1, 1995); - Article 13 of the Interim Regulations on Wage Payment (effective January 1, 1995); - Relevant provisions of the Beijing Municipal Regulations on Wage Payment; - Specific applications shall be subject to the currently effective regulations.

5. Henglu Law Firm's Reminder

Three reminders: The base amount of overtime pay is not determined by the company. Any agreement that is lower than the statutory calculation standard is invalid, and even if it has been signed, the employee can still claim the difference. It is best to collect evidence while at work, and keep attendance and task assignment records on hand. The tripled wage for overtime work on statutory holidays cannot be replaced by compensatory rest. On rest days, the company has the right to choose either compensatory rest or double pay. For matters involving the recovery of overtime pay, you can seek legal assistance through the following channels:Labor arbitration and work-related injury compensationFor obtaining a comprehensive solution for services, those interested in the compliance review of salary structures can refer to the salary section in the same column, and those concerned with the enforcement of wage arrears can consult the relevant information in this column.Creditor's rights and debts, and enforcementFor consultation on the design of an enterprise's salary system, please contact the relevant departmentIntellectual property protection and corporate lawFor difficult cases, please contact the teamSpecial services.

VI. Frequently Asked Questions

Q1: Is there still a chance to salvage the situation if the contract states that "the salary includes overtime pay"?

Yes. For the salary system, it needs to go through the statutory calculation and verification. If the normal salary after the calculation is lower than the minimum standard or the overtime pay is lower than the statutory multiple, the employee can still claim the difference. The agreement cannot exceed the statutory minimum standards.

Q2: Is it illegal to calculate overtime pay based on the base salary?

If the base salary is significantly lower than the monthly salary for regular attendance and the regular bonuses and allowances are excluded, the base salary agreement is invalid. The calculation should be based on the actual salary, and the difference can be recovered.

Q3: Can I claim overtime pay without a punch-in/punch-out record?

You can try the following: the work group arrangement, the approval records, the colleagues' testimonies, and the time stamps of the overtime output can all prove the fact of overtime work; if the company has the attendance records but refuses to provide them, it will bear the adverse consequences.

Q4: Does the leader's verbal request for overtime count as working overtime?

Yes. Overtime arrangements are not limited to written approval. Assignments via WeChat, phone calls, or emails that can prove actual work are all considered de facto overtime. Be sure to keep records of the assignments and the results achieved.

Q5: Is there a statute of limitations for claiming overtime pay?

Labor remuneration disputes are not subject to the one-year arbitration statute of limitations during employment, but must be raised within one year after the termination of the labor relationship. The longer the employee has been out of work, the shorter the period during which claims can be pursued, so it's advisable to take action as soon as possible.

The above Q&A is mainly based on judicial practices in Beijing. There may be differences in the adjudication guidelines in other regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as 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 open 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.