Overtime Pay Should Be Included In The Economic Compensation Base.

We should remind employers to change the way of operation and realize that the law is often the bottom line.

If employers are willing to pay economic compensation on statutory standards for the purpose of building harmonious labor relations, they are also supported and promoted by law.

Chen went to work in a network technology company in Shanghai in September 1, 2012, and the two sides signed a labor contract for 2 years.

Due to the nature of the work, Chen often has overtime work in his daily work.

The company pays overtime wages according to the law.

In August 31, 2014, when the labor contract was expired, the company decided not to renew the labor contract with Chen and pay two months' economic compensation.

Chen has objection to the company's elimination of overtime pay in the calculation of compensation, and has applied for arbitration to the labor dispute arbitration committee after failing to negotiate with the company, requiring the company to give full financial compensation.

The focus of this case is: how to determine the base of economic compensation?

Chen believes that the base of economic compensation should include all the wage income in the 12 months before the termination of the labor contract, including overtime pay.

The company believes that: when calculating the base of Chen's economic compensation, the company calculates the monetary income of all normal working hours, such as wages, bonuses, allowances and allowances, within 12 months before the termination of the labor contract, but does not include overtime pay, which is in conformity with the law.

The labor dispute arbitration committee held that after the expiration of the contract, the employer did not renew the labor contract with Chen, resulting in the termination of the labor contract between the two parties. The employer should pay the economic compensation for the termination of the labor contract according to the provisions of the labor contract law.

The employer has paid two months' economic compensation in accordance with the law. Chen asked the employer to calculate the overtime compensation when calculating the base of the economic compensation. The request for making up the economic compensation is not supported by law.

This case is about termination and termination of labor contracts.

The problem of calculating the base number of gold lies in whether overtime wages should be included in the economic compensation base.

After the promulgation and implementation of the labor contract law, the employers and employees are particularly concerned about the issue of economic compensation, especially when the labor contract expires, and the employer does not renew the labor contract. It still has to pay the economic compensation. This is a new rule.

Should the calculation base of the economic compensation include overtime?

The problem of "labor"

"And" Regulations on the implementation of the labor contract law "are not clear.

As a result, there are differences in practice, but most of the wage income in Shanghai area is calculated in the 12 months before the employee leaving, including overtime pay.

But this caliber has changed in 2013. The Shanghai Higher People's court has clearly stipulated in the first phase of the 2013 question and answer on the application of civil law whether the overtime pay should be included when calculating the base of the economic compensation.

The Shanghai municipal high court thinks: "first, economic compensation, in terms of the nature, is the compensation for the laborers' compensation after the termination or termination of labor relations between employers and workers, so the economic compensation should be based on the normal working hours of the workers.

Second, overtime wages are paid by laborers for extra labor, and are not within the normal working hours.

Third, from the fifty-fifth opinions of the Ministry of labor on the implementation of some issues concerning the labor law of the People's Republic of China and the twenty-seventh provisions of the regulations on the implementation of the labor contract law, it should also be considered that the economic compensation does not include overtime pay.

To sum up, we believe that overtime pay should not be included when calculating the base of economic compensation. "

Therefore, according to the provisions of the above Shanghai high court, the employer should not include overtime pay when calculating the economic compensation for the termination and termination of the employee's labor contract.

However, we should pay attention to the fact that if the employer has maliciously regarded the income that should be included in the normal working hours into the overtime wage, so as to reduce the standard of normal working hours and economic compensation, the "overtime pay" should be included in the calculation base of the economic compensation.