In order to meet the needs of the management, a business may stipulate a rule in its labor contracts or work rules provided that if an employee needs to work overtime, one should file a request in advance. The employee can only work overtime upon the approval of the employer or supervisor, so as to prevent employees from deliberately delaying work and working overtime without the need, or overstaying at work in order to claim overtime payment. It is the so-called "the system of request for overtime approval."

Article 38 of the Labor Incident Act, which became effective on January 1, 2020, states, “It is presumed that the work hours recorded on the worker's time sheet indicates that the worker has performed duties with the employer's permission during the aforementioned hours.” That is, the work hours recorded on the worker’s time sheet (clock-in/out data, sign-in roster, etc.) are legally presumed that it has been approved by the employer. This provision reduces the burden of proof on the employee for the disputes about overtime payment. However, although the work hours recorded on the worker’s time sheet can be used to presume that the employee has been approved by the employer to perform his/her duties during such period of time, the employer may also provide the labor contract, work rules, or other administrative information as the proof to the contrary. The dispute occurred frequently in practice was that the employer often defends that the work hours recorded on the worker’s time sheet that are beyond regular working hours have not been approved by the employer but are voluntary working hours provided by the worker. In a business where “a system of request for overtime approval” is in place, can the employer argue that the employee did not comply with the rule of request for overtime and take it as the proof to the contrary that the worker performed the duties without the employer’s permission as prescribed in Article 38 of the Labor Incident Act? If the employee in fact had the need to work overtime, is it true that if the employee has not requested for overtime, he/she cannot claim overtime payment?

In regard to this question, there is no consensus in practice. Some courts hold that even if the employee has worked overtime, since the employee did not request for overtime in advance in accordance with the rules, he/she cannot claim overtime payment. On the other hand, there are courts hold opposite opinions. They argue that workers are often the disadvantaged party. It is difficult for them to negotiate with their employer on an equal footing who sometimes was limited by organizational culture, environment, or unspoken rules (e.g., not being able to leave earlier than their supervisors, voluntarily working overtime and giving up overtime payment in order to be promoted, etc.). If the employee works overtime based on the employer's expressly intent or the employer knows or might know that the employee is working overtime under his command and supervision, but fails to stop or object to such performance, the employer shall still pay the employee for the overtime, despite the fact that the business adopts the system of request for overtime approval.

In addition, there is also a compromise stated that employers have the right to supervise and manage the attendance of workers, and have full control over worker’s time sheet. If the records are inconsistent with the facts, the employer can handle and correct them immediately. Therefore, in principle, it is assumed that the overtime recorded in the worker’s time sheet have been approved by the employer and the worker has in fact performed duties. However, the employer can provide other evidence to overturn such assumptions. For example, the employer may provide surveillance camera footages to prove that the worker was staying in the company to use the company's fitness equipment, or provide a log in/log out record of the worker’s computer to prove that the worker had turned off the computer and just sat on his/her seat without performing any duties, only checked his/her mobile phone while waiting for a ride from his/her family. Although the Labor Incident Act has come into force more than two years, there has not been a consensus on whether the employer can argue the worker did not comply with the rule of request for overtime and take it as the proof to the contrary that the worker performed the duties without having obtained the employer’s permission as prescribed in Article 38 of the Labor Incident Act. The court's opinion remains to be observed in the future.

The “system of request for overtime approval” may be considered as an audit measure for employers to monitor the necessity of overtime when employees work overtime voluntarily. But the law has given employers the authority to manage worker’s time sheet, businesses should establish a mechanism for noticing abnormal attendance. Once the employer finds that a worker got off work late without requesting for overtime approval, the employer should make sure that the worker was performing the duty at that time or not. The employer should correct the worker’s time sheet to reflect the worker's actual work time if he/she was not performing the duty, so that the legislative purpose of Article 38 of the Labor Incident Act may be implemented to avoid subsequent disputes.

(This article was published in the Expert’s Commentary Column of the Commercial Times：https://view.ctee.com.tw/tax/38112.html）