Previously, the incident of a 23-year-old female employee of Pinduoduo Inc. (a Chinese leading online retailer) dying suddenly on the streets of Urumqi in the early hours of the morning was heartbreaking. Afterwards, the media reported that various internet companies began implementing the “split week” system. From the 996 work schedule, the 007 work schedule, the split week system, voluntary overtime, to the “last one out” policy and the wolf culture in companies, the working environment for employees is increasingly deteriorating.
Under these circumstances, the sudden death of a Pinduoduo employee after working overtime in the early hours of the morning is enough to make countless employees feel frightened and uneasy. In this article, we will provide guidance from the perspective of labor law to help employees avoid the harm of a toxic work culture related to excessive overtime.
Let’s first review this incident. In December 2020, a 23-year-old Pinduoduo employee died after working overtime. The incident sparked public outrage over the company’s strict working schedule and prompted a response from Pinduoduo on social media. The company’s official account on Zhihu downplayed the employee’s death, saying, “All of us grassroots people are sacrificing our health in exchange for a paycheck. You can choose an easy life, but you would suffer in the end.” However, the post was quickly deleted and later confirmed to have come from Pinduoduo’s official account, leading to accusations of scapegoating. The incident has caused a growing PR crisis for Pinduoduo.
In addition to Pinduoduo, many current internet companies in China, such as Alibaba, Kuaishou, Tencent, and others, have a popular culture of working overtime, such as 996 and “split week” system. As ordinary citizens, we cannot help but ask:
- After working overtime, are employers legally obligated to pay 150%/200%/300% of overtime pay, or do they use voluntary overtime as an excuse not to pay?
- Can employees who die suddenly during overtime be recognized as work-related injuries and compensated according to the law, or is it denied on the grounds that the employee’s physical condition was weak?
Regarding these issues, we will analyze them one by one, so that we employees can protect both our health right and our legal income.
How can employees avoid being deemed to have “voluntarily worked overtime” and thus not receive overtime pay?
According to Article 42 of the “Interpretation of the Supreme People’s Court on the Application of Law in the Trial of Labor Dispute Cases (I),”( 最高人民法院关于审理劳动争议案件适用法律问题的解释（一）) which took effect on January 1, 2021, “When the employee claims for overtime pay, he/she shall bear the burden of proof for the existence of overtime work. However, if the employee has evidence to prove the existence of overtime work and the employer fails to provide it, the employer shall bear the unfavorable consequences.”
Many companies have an overtime approval system. Although employers assign heavy work tasks that force employees to work overtime to complete them, they do not approve employees’ overtime applications, which leads to all of this extra work time being counted as “voluntary overtime” and not being paid overtime.
In this situation, how can employees avoid being deemed to have “voluntarily worked overtime” and thus not receive overtime pay?
- Employees must clock in and leave a record of attendance. (Very important!!!)
- Before working overtime, employees must follow the company’s procedures for applying for overtime. Even if the application is unlikely to be approved, employees should keep evidence of their application, such as a screenshot of the OA system.
- Employees can write work logs to record the start time and work content of each overtime.
- Relevant evidence of work during each overtime, such as communication emails with colleagues or clients, should be kept.
- Keep transportation receipts for commuting after work, such as taxi receipts, to prove your leaving time in the future.
Please pay attention to these points in your daily work. When you resign or are maliciously dismissed by the company, you can apply for labor arbitration and claim for overtime pay.
It is worth noting that the case of claiming for overtime pay is not subject to the statute of limitations. Employees can claim for overtime pay from the date of employment, but the employer usually only bears the burden of providing attendance and salary records for the past two years. Nevertheless, the aforementioned work logs, overtime emails, and other evidence will all become favorable evidence.
How can employees avoid sudden death after work from being unrecognized as a work-related injury and without compensation?
According to Article 14 of the “Regulation on Work-Related Injury Insurance (2010 Revision) “（工伤保险条例）: “An employee shall be ascertained to have suffered from work-related injury if: 6.he is injured in traffic accident for which he is not principally responsible or in an urban rail transit, passenger ferry or train accident on his way to or back from work;”.
Article 15 of the “Regulation on Work-Related Injury Insurance (2010 Revision) “（工伤保险条例）: “An employee shall be regarded to have suffered from the work-related injury if: 1.during the working hours and on the post, he dies from a sudden disease or dies within 48 hours due to ineffective rescue;”.
In the case of the Pinduoduo incident, the employee suddenly died on the street after leaving work in the early morning. It does not fall under the category of traffic accidents or other work-related injuries, so it is difficult to be recognized as a work-related injury.
In this case, what should employees do to protect themselves and avoid the situation of sudden death after work from being unrecognized as a work-related injury and without compensation?
- If employees feel unwell during work, do not force themselves and should inform colleagues around them or report to their superiors immediately. If the situation is serious, seek medical attention promptly and leave evidence of the sudden illness during work. This will increase the likelihood of being recognized as a work-related injury.
- If it is still difficult to be recognized as a work-related injury, employees can file a lawsuit for the infringement of their right to life, health, and physical integrity, and demand that the company legally compensate for the employee’s overwork death. The evidence of overtime work listed above will also be beneficial evidence in the recognition of overwork death.