The widespread adoption of digital technologies across industries has transformed employers’ supervisory practices. The traditional distinction between work hours and non-work hours is increasingly blurred by online and digital work. Employees are often expected to respond to messages on WeChat late at night or attend online meetings on weekends without submitting formal overtime requests. This has created an always-on culture where employers can assign and monitor work at any time. In China, this prevalent form of off-the-clock work often goes unrecorded on timesheets, is not authorized, and makes it difficult for employees to provide evidence and enforce their rights.
Contents
- Definition and Characteristics of Off-the-Clock Work
- Cases and Legal Standards
- Legal Test for Substantive Work
- Allocation of the Burden of Proof and Quantification of Overtime Hours
- Categories of Off-the-Clock Work
Definition and Characteristics of Off-the-Clock Work
Off-the-clock work occurs when employees complete tasks at remote locations outside regular work hours, thereby encroaching on their non-work hours. This practice is common in Chinese knowledge-based businesses, and overtime pay is often not provided.
Off-the-clock work involves a lack of recordkeeping. The fragmented nature of working time, the ubiquity of work locations, and unstructured work activities often result in inadequate records and difficulty determining whether the work is compensable. Chinese employers may overlook such work or treat it as normal. It is driven by employers’ unilateral demands and employees’ passive compliance. Employers force employees to work outside regular work hours by setting excessive performance goals, using technology to covertly monitor work processes, or fostering an overwork culture. The absence of clear statutory rules and regulatory regimes leaves employees’ legal rights inadequately protected under Chinese law.
Cases and Legal Standards
In Beijing Case 03-cv-9602 (2022), Li worked as a product operations associate for a technology company under an employment contract providing for a variable workweek from April 2019 to March 2022.[1] During this period, Li used instant messaging tools such as WeChat and DingTalk to respond to customer inquiries outside regular work hours and on days off. Li claimed 140.6 hours of overtime work on workdays, 397.9 hours of overtime work on days off, and 57.3 hours of overtime during legal holidays. Li submitted evidence including WeChat logs and an on-call coverage schedule from the company’s official account.
The Beijing Chaoyang District Court dismissed all of Li’s claims. On appeal, the Beijing Third Lower Appeals Court declined to apply a formalistic approach and applied a dual standard based on whether substantive work was performed and the extent to which it encroached on personal time. The court recognized that flexible work arrangements are increasingly common and held that off-the-clock work should be evaluated by looking beyond traditional concepts of workplace and instead considering the nature of the work performed. Under Chinese law, time spent performing substantive work through social media during non-work hours constitutes overtime if the communications extend beyond simple messages, recur on a regular and fixed basis, and encroach on non-work hours.
In Beijing Case 01-cv-12507 (2024), Meng worked as an HR director at a clinic beginning in February 2023, with a monthly salary of 10,000 yuan and an alternating workweek schedule.[2] Meng claimed that between February and September 2023, they worked significant overtime on workdays, weekends, and legal holidays, totaling 56,412.87 yuan in overtime pay. Meng submitted evidence to the court, including attendance records and DingTalk chat logs showing substantive work, such as recruitment and payroll calculations, performed outside regular work hours. The clinic denied the overtime claims because Meng had not completed the DingTalk approval process required by the employee handbook. It also submitted incomplete compensatory time-off records to show that some overtime had been offset.
The court held that Meng had met their burden of proof. Attendance records showed late departures on workdays and weekend work. DingTalk chat logs showed recurring, fixed work outside work hours, including monthly timekeeping reports and daily work reports. These activities went beyond routine workplace communications. The employer failed to rebut the evidence and produced no training records, complete timekeeping policies, or complete compensatory time-off records, merely arguing that the overtime had not been approved.
The 2,500 yuan monthly base rate for overtime pay under the employment contract complied with Chinese statutory rules. The appellate court adopted the substantive-work standard, declined to apply timekeeping formalism, and found that off-the-clock work should be determined by the activity’s relationship to the employee’s job duties, its regularity, and the employer’s management practice. Under Chinese law, an employer that fails to fulfill its notice obligation cannot deny overtime solely because prior approval was lacking. The court awarded 4,000 yuan in overtime pay and corrected the trial court’s error in wage calculation.
In Shanghai Case 02-cv-973 (2023), Liao, an after-sales service specialist and on-call manager at a technology company in Hangzhou, worked overtime on legal holidays, days off, and workdays and sought overtime pay.[3] The company argued that it had a comprehensive overtime policy but had never received an overtime request from Liao or required them to work overtime. Liao claimed to have performed job duties at home after work or while on leave using DingTalk or by making telephone calls. The company contended that the communications were merely casual conversations rather than overtime work.
The trial court found that Liao joined the company as an after-sales service manager on January 5, 2021, and entered into an employment contract covering the period from January 5, 2021, to January 4, 2023. Liao worked a standard schedule with a five-day workweek. Work hours were from 9:00 AM to 6:00 PM, with a one-hour lunch break.
Liao claimed overtime for coordinating temporary emergency work-order reassignments and handling emergency situations involving on-call engineers on-site. Liao calculated the overtime hours by referring to the earliest and latest times recorded in DingTalk, WeChat, and emails and sought payment. The trial court rejected Liao’s claim.
The appeals court held that when an employee is still able to rest and the employer requests the employee’s cooperation in good faith, the cooperation does not constitute overtime, particularly when the assistance falls within the employee’s job duties. However, the record showed that, in addition to temporary and occasional workplace communications, Liao’s call logs, emails, and DingTalk records documented substantive work, such as on-site work, occasional meetings, and the submission of work reports. Moreover, Liao used social media to perform work during non-work hours, thereby encroaching on their personal time; the work therefore constituted overtime.
The three employment cases show that Chinese courts consider substantive work, the allocation of the burden of proof, and methods of quantifying overtime hours when applying legal tests for off-the-clock work.
Legal Test for Substantive Work
Whether an employee performs substantive work is the central issue in Chinese off-the-clock work litigation. In the first case, the trial court dismissed the claim, finding that the parties had agreed to an employment arrangement providing for a variable workweek even though the approval process had not been followed and holding that simple workplace communications on WeChat do not constitute overtime. The appeals court held that a variable workweek is invalid without regulatory approval, and found that the WeChat logs and on-call coverage schedule showed that Li’s off-the-clock communications concerning customer inquiries and work assignments went beyond simple communications. The recurring and fixed nature of the work made it substantive. The trial court relied on a traditional framework for determining compensable time, while the appeals court de-emphasized physical space and based its ruling on the substance of the work and the amount of personal time it occupied.
The substantive-work and significant-encroachment factors can be further divided into three elements:
1. Whether substantive work is performed. Substantive work is exemplified by writing reports, completing work tasks, or delivering work results. A simple acknowledgment would not constitute substantive work. In Shanghai Case 02-cv-973 (2023), the court distinguished between substantive work and brief or sporadic workplace communications and held that only the former constitutes overtime.[3]
2. Whether the work is recurring and fixed. Using social media to work outside regular work hours constitutes overtime if the activity is recurring and fixed, such as weekly on-call duties or scheduled daily responses.
3. Whether the work significantly encroaches on non-work hours. Under Chinese law, overtime is established if remote work during non-work hours involves substantive activity, such as delivering work results or carrying out the employer’s directions.
Allocation of the Burden of Proof and Quantification of Overtime Hours
Under China’s Supreme Court Adjudicative Guidelines, an employee claiming overtime pay bears the initial burden of producing evidence that the claimed overtime occurred.[4] The evidence may include chat logs, attendance records, or on-call coverage schedules. Once that initial showing is made, the burden of proof shifts to the employer, which must then provide rebuttal evidence.
In the second case, the trial court applied the virtual workplace rule and determined that the employee’s DingTalk chat logs and attendance records showed work tasks outside regular work hours. These activities went beyond simple communications and satisfied the employee’s initial burden, shifting the burden of proof to the employer. On appeal, the court tightened the employee’s burden of proof, emphasizing the overtime preapproval policy in the employment contract and requiring the employee to prove that the overtime had been expressly scheduled or approved by the employer.
Meng’s access-card records and chat screenshots showed only the times when Meng was on duty, not specific work activities or employer instructions, and had to be considered together with compensatory time-off records. Because the time spent working online is difficult to quantify and the employee failed to provide records documenting the overtime hours, prior approval, and compensatory time taken, the court determined the overtime pay based on overtime frequency, work content, and pay rates.
China’s Supreme Court Adjudicative Guidelines allow an adverse inference against an employer that fails to produce evidence of overtime work under its control.[4] Judicial precedents also show that courts often lack a method of quantifying off-the-clock work hours and therefore exercise equitable discretion.
Employees usually have only fragmentary evidence of when the employer assigned work and when they submitted deliverables, which rarely reflects the time spent preparing for work, the effort invested, or communications made during non-work hours. However, counting all time reflected in chat logs as overtime would be unfair to employers; the interests of both employers and employees must be treated fairly. Given the current lack of practicable rules, judges determine overtime hours on a case-by-case basis to protect both parties’ interests.
Categories of Off-the-Clock Work
Chinese courts have identified five categories of off-the-clock work:
Simple Communications: Brief messages, confirmation replies, and on-call availability are not considered off-the-clock work.
Online Work Performed at the Employer’s Request: Under Chinese law, weekend online meetings or after-hours online tutoring by teachers are considered off-the-clock work if they involve substantive work related to the employee’s job duties and the employer’s core business.
Submission of Deliverables: This includes requests from the employer for articles, drawings, and reports near the end of the workday with tight deadlines. For example, the employer assigns a task just before the end of Friday and expects completion by Monday.
Team Building: Mandatory activities on days off and legal holidays constitute off-the-clock work even if they do not involve actual work-related tasks, because employees sacrifice personal time.
Customer Communications: Employees who are not directly instructed by the employer are still considered to be working off the clock if they must communicate with or provide services to customers outside regular work hours. Such actions can be characterized as off-the-clock work because they align with company objectives and can generate revenue for the company.
Off-the-clock work is common in the digital age, but common does not mean lawful. Overtime is defined by work performed under the employer’s control, regardless of whether it is performed in a fixed location or whether the approval process is completed. Any off-the-clock work is considered overtime under Chinese law as long as it is substantive and supported by adequate evidence. Employers should not use remote or online work to deprive employees of their rights to time off and compensation. Rather than relying on formal approval requirements as a pretext, employers should implement overtime policies to ensure that employees are paid for work performed during non-work hours and provided with adequate time off. If you need help, ask CBL to connect you with a qualified attorney.
FURTHER READING
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Footnotes
[1] Beijing Case 03-cv-9602 (2022), ((2022)京03民终9602号), (Beijing Third Lower Appeals Court, Oct. 17, 2022), (in Mandarin)
[2] Beijing Case 01-cv-12507 (2024), ((2024)京01民终12507号民事判决书), (Beijing First Lower Appeals Court, Jan. 24, 2025), (in Mandarin)
[3] Shanghai Case 02-cv-973 (2023), ((2023)沪02民终973号), (Shanghai Second Lower Appeals Court, Apr. 17, 2023), (in Mandarin)
[4] Supreme Court Adjudicative Guidelines for Employment Dispute Cases #1, (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）), (Supreme Court, Dec. 29, 2020), (in Mandarin)
Bibliography
Some opinions in this article are derived from the following publications
Ai Lin, Yu Xuan, How to Protect Gig Workers’ Right to Time Off, Learning and Exploration, 2023(12).
Gao Jiandong, Off-the-Clock Work and the Legal Framework, China College of Labor Relations Journal, 2022(2).
Li Changlin, The Top 10 China Human Rights Judicial Protection Cases of 2023, Human Rights Law, 2024, 3(04).
Su Ya, An Analysis of the Causes of Overtime for Knowledge Workers and Human Resources Management Precautions, Hebei Enterprise, 2023(06).