Answer: Whether your employer is lawful to do so depends on whether the nature of you being on night duty falls under overtime work.

As for whether an employee being on night duty under a standard work hour system (such as permanent, fixed term, labor dispatch, or assignment contract) falls under overtime work, current practices in court cases predominantly consider factors such as work requirements to employees on night shift, their freedom of movement, whether they can rest and sleep, and other relevant factors to determine whether being on night duty qualifies as overtime work, thereby obliging the employer to pay overtime wages.¹Wu Guangyong, Shenzhen Yantian District People’s Hospital Labor Dispute Civil Judgment of Second Instance Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2021) Yue 03 Min Zhong No. 25131. The court held that the labor intensity, free activities, and work tasks of the employee on duty in the hospital determined that the shift was not overtime. Zhongkai Agricultural Engineering College and Ma Jinbao Labor Dispute Civil Judgment of Second Instance Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2022) Yue 01 Min Zhong 11354. The court held that “directly restricting and affecting their right to leave their roles for rest and free activities led the work to be overtime”. Yuan Xiaoping, Jiangxi Wannianqing Science and Technology Industrial Park Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of the Intermediate People’s Court of Nanchang City, Jiangxi Province (2020) Gan 01 Min Zhong No.513. The court held that the time for employees to sleep on night shift and eat on day shift was not overtime. Article 8 of the Answers to Several Difficult Questions on the Trial of Labor Dispute Cases by the Civil First Division of Zhejiang Provincial People¡¯s High Court stipulates that ¡°the nature of the work of security guards, communication room guards, warehouse keepers, and other personnel who live and eat 24 hours a day in their employer¡¯s place has its particularity. If because of working place needs and genuine employer¡¯s requirement, employees cannot sleep. They should be considered working; Where accommodations or rest facilities are provided, work hours should deduct time for sleep and rest, excluding the hours not for normal work, and the employer must pay overtime for work hours exceeding the standard hours. In judicial practice, the following factors can be considered comprehensively: whether the employer has applied to the labor administrative department for the examination and approval of the general workhour system and the irregular workhour system for the role (attention should be paid to valid granted period and the number of people granted); whether the employer has equipped the workers with necessary rest facilities in the workplace; the requirements for the specific work content and work intensity of the employee in the work system or company rules (to judge whether the employee’s work in accordance with the system will lead to the fact that it is impossible to rest); the number of people on duty arranged by the employer (that is, to consider whether the employee has the possibility of taking turns to have a rest).¡±

A more reasonable test for assessment may be that, during night duty, the greater responsibility the employees assume, the less freedom they may leave the workplace, and the more frequently they must wake up to work, the more likely their night duty will be considered overtime work, and consequently the more likely that the trivial night allowance constitutes an underpaid overtime wage; however, if an employee basically sleeps in the rest room and rarely needs to get up to work, the employee is free to leave the workplace for a short time, and the responsibility on the duty is relatively low, it is more probably not an overtime work, it may, therefore, be reasonable for the employer to pay a small amount of night allowance. At present, the prevailing court decisions also hold that when an employee has a trivial night shift task and can take a rest, the employee¡¯s claims for overtime pay shall not be upheld once night allowance has been paid.²In the labor dispute appeal case between He Maorong and Chongqing Golden Phoenix Talent Exchange Service Co., Ltd., Civil Judgment of the First Intermediate People’s Court of Chongqing (2015) Yu Yi Zhong Fa Min Zhong Zi No.02792. The court held that the employee’s request for overtime pay was not supported because the night shift allowance had been paid and the employee could sleep on duty.

If the employee’s night duty is recognized as overtime, can the night allowance paid by the employer offset the overtime wages that the employer should pay? There are very few such court cases. Some courts held that night allowance could not offset overtime wages unless both parties agreed otherwise.³Qingdao Licang District Lekang Hospital, Zhang Jinyuan Labor Dispute Retrial Review and Trial Supervision Civil Ruling Shandong Provincial People¡¯s High Court Civil Ruling (2020) Lu Min Shen No.772. The court held that the two parties did not explicitly agree that the night shift allowance was overtime pay, so the additional calculation of overtime pay is not improper.However, for the sake of fairness, we believe that employers requesting night allowance to offset payable overtime wages is reasonable.

For other special types of employee, if you are classified as an employee on irregular hours, even if your night duty is considered as work, you may only be eligible for overtime wages for night duties on public holiday or, in some regions, you may not be eligible for overtime pay at all. If you are employee on general work hours, even if your night duty are considered work, you still need to calculate whether your total hours within the accounting circle exceed the standard work hours to be eligible for overtime wages. If you are an employee on casual hours and your night duty is considered work, you may still only be eligible for overtime wages for night duties on public holiday or, in some regions, you may not be eligible for overtime pay at all. Please refer to How do I calculate overtime pay under the special workhour systems (such as irregular work hours)?

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Mr. Wangdong

Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.

Email: wangdong@royalaw.com

• 1
  Wu Guangyong, Shenzhen Yantian District People’s Hospital Labor Dispute Civil Judgment of Second Instance Civil Judgment of Shenzhen Intermediate People’s Court of Guangdong Province (2021) Yue 03 Min Zhong No. 25131. The court held that the labor intensity, free activities, and work tasks of the employee on duty in the hospital determined that the shift was not overtime. Zhongkai Agricultural Engineering College and Ma Jinbao Labor Dispute Civil Judgment of Second Instance Civil Judgment of Guangzhou Intermediate People’s Court of Guangdong Province (2022) Yue 01 Min Zhong 11354. The court held that “directly restricting and affecting their right to leave their roles for rest and free activities led the work to be overtime”. Yuan Xiaoping, Jiangxi Wannianqing Science and Technology Industrial Park Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Judgment of the Intermediate People’s Court of Nanchang City, Jiangxi Province (2020) Gan 01 Min Zhong No.513. The court held that the time for employees to sleep on night shift and eat on day shift was not overtime. Article 8 of the Answers to Several Difficult Questions on the Trial of Labor Dispute Cases by the Civil First Division of Zhejiang Provincial People¡¯s High Court stipulates that ¡°the nature of the work of security guards, communication room guards, warehouse keepers, and other personnel who live and eat 24 hours a day in their employer¡¯s place has its particularity. If because of working place needs and genuine employer¡¯s requirement, employees cannot sleep. They should be considered working; Where accommodations or rest facilities are provided, work hours should deduct time for sleep and rest, excluding the hours not for normal work, and the employer must pay overtime for work hours exceeding the standard hours. In judicial practice, the following factors can be considered comprehensively: whether the employer has applied to the labor administrative department for the examination and approval of the general workhour system and the irregular workhour system for the role (attention should be paid to valid granted period and the number of people granted); whether the employer has equipped the workers with necessary rest facilities in the workplace; the requirements for the specific work content and work intensity of the employee in the work system or company rules (to judge whether the employee’s work in accordance with the system will lead to the fact that it is impossible to rest); the number of people on duty arranged by the employer (that is, to consider whether the employee has the possibility of taking turns to have a rest).¡±
• 2
  In the labor dispute appeal case between He Maorong and Chongqing Golden Phoenix Talent Exchange Service Co., Ltd., Civil Judgment of the First Intermediate People’s Court of Chongqing (2015) Yu Yi Zhong Fa Min Zhong Zi No.02792. The court held that the employee’s request for overtime pay was not supported because the night shift allowance had been paid and the employee could sleep on duty.
• 3
  Qingdao Licang District Lekang Hospital, Zhang Jinyuan Labor Dispute Retrial Review and Trial Supervision Civil Ruling Shandong Provincial People¡¯s High Court Civil Ruling (2020) Lu Min Shen No.772. The court held that the two parties did not explicitly agree that the night shift allowance was overtime pay, so the additional calculation of overtime pay is not improper.