[Direct answer]In the Beijing area, the burden of proof is distributed in a two-way manner: where workers claim overtime pay, they shall first bear the initial burden of proof for the existence of overtime work, such as attendance records, work communication records, and access control data; however, if the evidence proving the existence of overtime work is in the possession and management of the employer, the employer shall provide it. If the employer refuses to provide it, the employer shall bear the adverse consequences. That is to say, if the employer holds attendance records, they will often have to bear the adverse consequences of failing to provide attendance records. The legal basis for this is Article 42 of the Interpretation of the Supreme People's Court on the Application of Law in the Trials of Labor Dispute Cases and Article 31 of the Labor Contract Law.

I. Problem background and typical scenarios

When settling accounts upon leaving the job, employees often complain about the perennial 996 work schedule and no weekends off, while the company claims that their voluntary decision to stay does not count as overtime. The most common stalemate in overtime pay disputes lies in the burden of proof. Attendance records, clock-in data, and shift schedules are mostly held by the company, while employees often only have scattered chat records and overtime photos in their hands. Who should provide evidence and to what extent directly determine whether the overtime pay of over 100,000 yuan can be successfully claimed.

II. Key points of contention

First, how can workers fulfill their initial burden of proof? Second, what are the standards and consequences for determining that evidence is held by the employer? Third, what are the circumstances where overtime facts and attendance records are deemed as exempt from the need for proof? Fourth, what is the calculation basis and statute of limitations for overtime pay?

III. Professional analysis by Henglue Lawyers

The first layer is the basic framework of the rules of evidence: According to Article 42 of the "Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trial of Labor Disputes Cases (I)", when a worker claims overtime pay, he/she shall bear the burden of proof for the existence of overtime work; however, if the worker has evidence to prove that the employer holds evidence of the existence of overtime work but fails to provide it, the employer shall bear the adverse consequences. This rule seems unfavorable to workers, but in fact, it shifts the burden of proof for the attendance system back to the employer. The second layer is how workers provide preliminary evidence: They don't need to prove every hour of each day, but only need to establish a reasonable indication of overtime work - work orders in WeChat groups after work, work emails during non-working hours, project launch time points, screenshots of access control and clock-in/out records, colleague testimonies, and overtime approval forms; organizing these materials into a timeline and meeting the high probability standard to complete the preliminary evidence. The third layer is the identification and claims of evidence held by the employer: The employer legally has the obligation to manage attendance, and attendance records, shift schedules, and salary calculation details are within his/her custody. Once the worker raises the defense that the employer holds attendance records and fails to provide them without a legitimate reason, the arbitration and court may presume that the overtime facts claimed by the worker exist. In Beijing, the common practice in handling such cases is to require the employer to bear the corresponding burden of proof for attendance and salary. The fourth layer is the calculation base and statute of limitations: Overtime pay is calculated based on the normal working hour salary base, with overtime work on weekdays not less than 150%, on rest days not less than 200%, and on statutory holidays not less than 300%. The controversy lies in whether the base includes performance bonuses, etc. It is usually determined by the labor contract or the actual salary structure. Disputes over unpaid labor remuneration during the existence of the labor relationship are not subject to the one-year arbitration statute of limitations, but should be raised within one year after leaving the job. It is recommended to complete the evidence fixation and claim calculation as soon as possible, and for enterprises' employment and evidence management, reference can be made to relevant provisions.Intellectual property protection and corporate lawPlate self-inspection.

IV. Practical Suggestions and Legal Basis

First, pay attention to keeping overtime approval forms, attendance screenshots, and work communication records on a daily basis. Second, before leaving the job, request the employer in writing to provide attendance records and salary details, leaving evidence for the employer to keep. Third, in the arbitration process, explicitly request the employer to provide attendance records and apply to retrieve attendance data. Fourth, claim overtime pay separately according to different multiples for regular working days, rest days, and statutory holidays. Main legal basis: Article 44 of the Labor Law of the People's Republic of China, Article 31 of the Labor Contract Law of the People's Republic of China, and Article 42 of the Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trials of Labor Disputes; the specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Advice

There are three key points for providing evidence of overtime work: Firstly, the worker needs to provide preliminary evidence, which can be general rather than precise in terms of hours; Secondly, if the employer controls the attendance records, the employer will bear unfavorable consequences if they fail to provide them; Thirdly, the calculation of overtime pay and the base salary should be separated, and the claim for overtime pay during the employment period is not subject to the one-year statute of limitations. In cases involving disputes over overtime pay and termination of employment, the parties can resolve the disputes through legal means.Labor arbitration and work-related injury compensationObtain an overall solution for the service, involving the combination of judgment enforcementCreditor's rights and debts, and enforcementA reference for the design of the employment system in enterprisesBusiness and contract disputes in enterprisesColumn: Consultation on difficult casesSpecial servicesTeam.

VI. Frequently Asked Questions

Q1: Can I still claim overtime pay if there are no attendance records?

Yes. You can use chat records, emails, access control data, and colleagues' testimonies to form a timeline and complete the preliminary evidence collection. If the attendance records are held by the company, you can request them to provide them to you.

Q2: What will happen if the company says it won't provide attendance records?

If the worker can prove that the employer has evidence of overtime work, but the employer refuses to provide it, the employer shall bear the adverse consequences, and the arbitration court or the court may presume that the fact of overtime work exists.

Q3: How long can I claim overtime pay for?

During the existence of the labor relationship, disputes arising from arrears in labor remuneration 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.

Q4: Does voluntary overtime count as overtime pay?

The key point is whether it is arranged by the unit or approved by it, and whether it is mandatory. Continuous overtime that is implicitly or tacitly allowed by the unit's system will usually be regarded as overtime.

Q5: How is the base amount for overtime pay determined?

Generally, the salary is determined according to the normal working hours stipulated in the labor contract or the actual salary structure. Whether it includes performance bonuses and other incentives is prone to disputes. It is recommended to keep the salary details on hand for future reference.

The above content is based on the compilation of judicial practices 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 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 Henglue 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.