China: The end of trust-based working hours in China?

According to Chinese labour laws, the employer is not obliged to record and monitor the working hours of the employees. In practice, however, many Chinese companies introduce a working time system in their internal management policies to record the total duration of daily working time, including the start and end of daily working hours, break times and overtime.

Naturally, the decision of the Federal Labour Court dated 13/09/2022 will not have any influence on the Chinese labour law system. However, it should be noted that there are numerous comparable discussions about working time recording in connection with legal actions for overtime compensation in China, which Chinese employees regularly bring against their employers. When claiming overtime compensation, the employees must, in principle, prove the existence of overtime. However, the burden of proof is transferred to the employer if the employee proves that the employer has the corresponding evidence for the existence of overtime. In employee-friendly jurisdictions, for example, in Beijing, the courts demand that the employer prove the untruthfulness of the employee’s overtime claims if the employee can only provide minor evidence that he has worked overtime without payment. If the employer is unable to submit working time records that prove the opposite, the court may admit the employee's action. Therefore, it is recommended that our customers implement a working time system or at least establish effective internal regulations (e.g. in the employee handbook), under which clear conditions (e.g. written approval) govern the performance of overtime.

Autor: Marcel Brinkmann