Is overtime pay for company relocation not included in compensation?

If the employee is dismissed due to the relocation of the company, the employee shall be paid economic compensation in accordance with the provisions of the Labor Contract Law, and the standard of economic compensation is one month's salary after one year of service, one year for six months and less than one year, and half a month's salary for less than six months, where the salary is based on the average salary of the employee in the 12 months before resignation.

If the new address is within the scope of the employment contract, and the company has notified the employee in advance when the employment relationship is established, the employee shall obey. On the contrary, if "there is a significant change in the objective circumstances on which the labor contract is based at the time of the conclusion of the labor contract, which makes it impossible to perform the labor contract", the employer shall negotiate with the employee to change the labor contract if he is willing to go and continue to perform the contract at the new address. If the employee is unwilling to go, he or she shall give 30 days' written notice or pay an additional month's salary to terminate the contract, and pay the employee one month's salary and economic compensation every year according to the number of years of service in the employer.

Hello, first of all, the company should pay overtime; Secondly, if the employee is dismissed due to the relocation of the company, the employee shall be paid economic compensation in accordance with the provisions of the Labor Contract Law, and the standard of economic compensation is one month's salary after one year of service, one year's salary for six months and less than one year, and half a month's salary for less than six months, where the salary is based on the average salary of the employee in the 12 months before resignation.

The relocation of the company, in the labor law, is called "a change in objective circumstances at the time of subscribing to an employment contract". If both parties agree to terminate the labor contract, the employer shall pay severance to the employee. At the same time, settle the salaries of both parties. Of course, overtime pay is also included.

Overtime pay cannot be used as a basis for calculating severance payments. If the employer is unable to reach an agreement with the employee due to the relocation to another place, the severance paid to the employee after terminating the employee's labor contract shall be one month per year according to the employee's years of service in the employer. The monthly wage for calculating severance refers to the salary due to the employee for the 12 months prior to the termination of the contract, including piece-rate wages, hourly wages, various allowances and subsidies, bonuses and other monetary income, but excluding overtime wages.

Article 47 of the Labor Contract Law stipulates that severance shall be paid to the employee according to the number of years of service in the employer and the rate of one month's salary for each full year. where it is more than six months but less than one year, it is calculated as one year; If it is less than six months, the worker shall be paid economic compensation for half a month's salary. If the monthly wage of a worker is three times higher than the average monthly wage of the employee in the previous year announced by the people of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard of severance shall be paid to him at the rate of three times the average monthly wage of the employee, and the maximum period of payment of severance shall not exceed 12 years.

The term "monthly wage" mentioned in this article refers to the average salary of an employee in the 12 months prior to the termination or dissolution of the labor contract. Article 27 of the Regulations for the Implementation of the Labor Contract Law stipulates that the monthly wage of economic compensation stipulated in Article 47 of the Labor Contract Law shall be calculated according to the wages due to the employee, including hourly wages or piece-rate wages, as well as monetary income such as bonuses, allowances and subsidies. If the average salary of an employee in the 12 months prior to the termination or termination of the labor contract is lower than the local minimum wage standard, it shall be calculated in accordance with the local minimum wage standard.

If a worker has worked for less than 12 months, the average wage shall be calculated according to the number of months actually worked. Q&A on the Application of Civil Law by Shanghai High Court, No. 1, 2013.

5. On the issue of whether it is necessary to include overtime wages when determining the calculation base of severance in labor dispute cases, some courts have reported that overtime work has become the norm for some employers, and the labor remuneration of employees is generally composed of the minimum wage and overtime pay. In our opinion, the first.

1. In nature, severance compensation is given to an employee to compensate for the employee's losses or based on the employer's social responsibility after the employer dissolves or terminates the labor relationship with the employee, so the severance shall be calculated based on the employee's wages for normal working hours. Second, overtime wages are the remuneration received by the workers for providing additional labor, and do not belong to the remuneration of Kaiduan sedan labor during normal working hours.

If overtime is not paid, you can apply for severance compensation. If the employer fails to pay the labor remuneration in full and in a timely manner, the employee may terminate the labor contract and at the same time file a complaint with the labor inspection brigade, and order the employer to pay additional compensation according to the standard of 50% to 100% of the amount payable.

Labor Contract Law of the People's Republic of China

Article 27.

If an employer is on the verge of bankruptcy and undergoing statutory rectification or has serious difficulties in its production and operation and it is truly necessary to lay off its personnel, it shall explain the situation to the trade union or all employees 30 days in advance, listen to the opinions of the trade union or employees, and may lay off personnel after reporting to the labor administrative department.

Where an employer lays off personnel in accordance with the provisions of this Article and hires personnel within six months, it shall give priority to the personnel who have been laid off.

Labor Contract Law of the People's Republic of China

Article 28.

The employer shall comply with this Law.

Labor Contract Law of the People's Republic of China

Article 24.

Labor Contract Law of the People's Republic of China

Article 26.

Labor Contract Law of the People's Republic of China

Article 27.

If an employer is on the verge of bankruptcy and undergoes statutory rectification or has serious difficulties in its production and operation, and it is truly necessary to lay off its personnel, it shall explain the situation to the trade union or all employees 30 days in advance, listen to the opinions of the trade union or employees, and may lay off the personnel after reporting to the labor administrative department.

Where an employer lays off personnel in accordance with the provisions of this article and hires personnel within six months, it shall give priority to hiring the personnel who have been laid off.

Article 28.

If an employer terminates a labor contract in accordance with the provisions of Articles 24 and 26 of this Law, it shall provide economic compensation in accordance with the relevant provisions of the State.

Labor Contract Law of the People's Republic of China

Article 87.

Where an employer dissolves or terminates a labor contract in violation of the provisions of this Law, it shall do so in accordance with this Law.

Labor Contract Law of the People's Republic of China

Article 47.

Compensation is paid to the worker at twice the prescribed rate of economic compensation.

Hello, first of all, the company should pay overtime; Secondly, if the employee is dismissed due to the relocation of the company, the employee shall be paid economic compensation in accordance with the provisions of the Labor Contract Law, and the standard of economic compensation is one month's salary after one year of service, one year's salary for six months and less than one year, and half a month's salary for less than six months, where the salary is based on the average salary of the employee in the 12 months before resignation.

What does it mean to not pay overtime due to relocation? In any case, overtime should be paid as long as you work overtime.

Severance does not include overtime pay.

Shanghai High People's Court.

Questions and Answers on the Application of Civil Law (Issue 1, 2013).

5. On the issue of whether overtime wages need to be included in determining the calculation base of severance in labor dispute cases.

Some courts have reflected that overtime work has become the norm for some employers, and that employees' remuneration is generally composed of minimum wage and overtime pay, and that if overtime pay is not included in the calculation base of severance payment, it may lead to the problem that the severance paid by the employer is too low. In our opinion, the first.

1. In nature, severance compensation is given to an employee to compensate for the employee's losses or based on the employer's social responsibility after the employer dissolves or terminates the labor relationship with the employee, so the severance shall be calculated based on the employee's wages for normal working hours. Second, overtime wages are the remuneration received by the employee for providing additional work, and do not belong to the remuneration for labor during normal working hours. Third, from Article 55 of the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China and Article 27 of the Regulations for the Implementation of the Labor Contract Law of the former Ministry of Labor, it should also be considered that severance does not include overtime pay.

In summary, we believe that overtime pay should not be included in the calculation of the basis for severance payments.

If there is evidence to prove that the employer maliciously included items that should have been included in the wages for normal working hours in order to meet the calculation standards for reducing the wages for normal working hours and severance payments, the "overtime wages" should be included in the calculation base of severance payments.