Li works in a manufacturing company and signed a 2-year fixed-term labor contract with the company. The labor contract stipulates that Li's salary is 5,000 yuan per month, including a basic salary of 3,500 yuan and a performance salary of 1,500 yuan.

Li works in a manufacturing company and signed a 2-year fixed-term labor contract with the company. The labor contract stipulates that Li's salary is 5,000 yuan per month, including a basic salary of 3,500 yuan and a performance salary of 1,500 yuan. The company's attendance and leave system stipulates that if an employee works overtime, the employee's basic salary will be used as the basis for calculating overtime pay.

When Li was working in the company, he worked overtime almost every day. At first, Li didn't think there was any problem. Later, as overtime hours increased, Li felt that the company calculated overtime pay based on basic wages and paid a lot less overtime pay, which seriously infringed on his legitimate rights and interests.

So, Li went to the company to negotiate, demanding that overtime pay be calculated based on his actual monthly total salary, and that the company make up the difference in overtime pay that he deserved. The company rejected Li's request.

Subsequently, Li sued the company to the Labor Dispute Arbitration Committee , demanding the termination of the labor contract on the grounds that the company had not paid wages in full; he also required the company to make up the overtime pay difference and pay economic compensation. After hearing the case, the

Labor Dispute Arbitration Committee rejected Li’s arbitration request in accordance with the law. Li was dissatisfied and filed a lawsuit with the court, but Li's claim was also rejected by the court. So why did Li lose the lawsuit?

To answer this question, we must involve the issue of the calculation base of overtime pay. So, in judicial practice, how to determine the calculation base of overtime pay for workers’ overtime work?

According to the provisions of laws and regulations such as the Labor Law and the Interim Provisions on Wage Payment, if an employee works overtime outside of normal working hours, the basis for calculating overtime pay should be the employee's salary during normal working hours. So how do we determine wages for workers’ normal working hours?

Usually, it is divided into the following situations:

In the first situation, if the labor contract clearly stipulates the wage standard that the worker should receive every month, and does not distinguish the wage composition, such as the labor contract stipulates that the worker will be paid every month. If the monthly salary is 5,000 yuan, then 5,000 yuan should be used as the base for calculating overtime pay.

In the second case, the labor contract stipulates the wage standard that workers should receive every month, but the wages are divided into basic wages, performance wages, transportation subsidies, etc. In the case of this case, a salary of 5,000 yuan is divided into a basic salary of 3,500 yuan and The performance salary is composed of two parts: 1,500 yuan.

In this case, the part of the wage that the worker can definitely get every month without uncertainty should be used as the wage for the worker's normal working hours, and overtime pay should be calculated based on this.

In the third case, the labor contract not only stipulates the monthly salary standard of the worker, but also stipulates the calculation base for overtime pay. For example, in this case, Li’s monthly salary is 5,000 yuan, the basic salary is 3,500 yuan, and the performance pay is 1,500 yuan, and the basis for calculating overtime pay agreed by both parties is the basic salary of 3,500 yuan.

In this case, if the overtime pay calculation base agreed upon by both parties is lower than the wage that the worker can definitely get every month without uncertainty, then this agreement damages the legitimate rights and interests of the worker and violates the law. If it is an invalid agreement due to mandatory provisions of laws and regulations, the basis for calculating overtime pay should still be based on the salary determined by the employee.

The situation in this case meets both the second and third situations. However, since performance pay needs to be determined based on Li’s monthly work performance and is not the salary that Li can get during normal working hours every month, Li can There is uncertainty as to whether this part of performance pay will be obtained.

Therefore, the salary that Li can determine during normal working hours every month is the basic salary of 3,500 yuan. The two parties agreed to use the basic salary of 3,500 yuan as the basis for calculating overtime pay, which obviously did not damage Li's legitimate rights and interests, so it was a legal and valid agreement.

Now, the company has paid overtime pay to Li based on the calculation base of 3,500 yuan. Therefore, Li’s claim that the company pays him less overtime pay and requires the company to make up for the overtime pay will not be supported by the referee.In addition, Li's claim to terminate the labor contract under this situation is an illegal termination of the labor contract, so the company does not need to pay him financial compensation.