Shall night duty be categorized as overtime work, be paid with duty allowance or be arranged for shift leave?

分享到微信 关闭
2018-03-27 | 来源:劳动法苑

Asked by: Pharmaceutical Legal


Hello Lawyer. For the goal of ensuring normal function of factory's electric equipment at night, we arrange some qualified employees to be on duty at the factory. The duty persons could take rest at night normally except necessary working under emergency. We company does not include the duty work when calculating overtime work and pay for duty allowance, emergency allowance at night and meal allowance according to the duty work. Under this circumstance, we would like to know that:

1.Shall this night duty work be calculated into overtime work? Shall duty work at statutory holiday be calculated as overtime work and be paid for three times salary?

2.If the duty work is not overtime work, shall employee's emergency work during duty, such as emergency repair at night, be calculated into overtime work?

3.If the duty work is not overtime work, is it legal to pay for duty allowance or arrangement for shift leave?


Answered by: RDL-Shanghai Attorney Bella Bai


1.According to the given background, employee could take rest at night duty, which is not overtime work in principle. As for the duty at statutory holiday, if it is irrelevant to employee's own work which is arranged by company due to security or fire safety occasionally, it shall not be calculated as overtime work, which shall not be paid either.

2.According to Shanghai's legal practice, it depends on case situation. If the duty work is not employee's own work which is relevant to security and fire safety, it shall not be categorized as overtime work; if it is own work, since employee could take rest at duty, it shall not be considered as overtime work, either. However, it is noted that if the emergency repair work is frequent at night, which means that employee could take rest in principle but actually works frequently, and also the labor intensity of duty work is as much as normal work, there is relatively high risk of being recognized as OT.

3.If not recognized as OT, company could only pay duty allowance instead of OT pay. According to Shanghai's regulations, the benefits on it could be paid based on company's regulations, collective contracts, labor contract or customary practice. Similarly, if there are provisions in company's regulations or customary practice on shift leave, arranging for shift leave also complies with the requirement of laws and regulations.


最近热点

推荐阅读

未足额支付加班费,员工能否以此要求解除劳动合同,支付经济补偿?

员工在法定节假日期间加班,公司按200%计算二人的加班工资并于加

版权所有Copyright © 江三角律师事务所 | 沪ICP备12027989号-2 | 021-58883253

互联网新闻信息服务许可证:3112014002

会员注册

*

请填写常用邮箱

*

支持中文、字母、数字,4-20个字符

*

请输入您的手机号

*

请输入6-14个数字、英文或特殊字符

*

两次密码输入需一致

*

请填写验证码

如果您已经是会员请登录,带*的必须填写

帐号登录

忘记密码?

没有劳动法苑帐号?立即注册

免费订阅劳动法苑每日资讯