China overtime claims: evidence employers should preserve

1. Understand who must produce the evidence

Article 42 of the Supreme People’s Court Interpretation (I) on Labor Disputes, Fa Shi [2020] No. 26, places the burden of proving overtime on the employee. However, if the employee has evidence that the employer holds records proving overtime and the employer does not produce them, the employer bears the adverse consequences. The rule does not allow a company to rely on missing employee documents while ignoring records it controls.

Articles 6 and 39 of the PRC Labor Dispute Mediation and Arbitration Law also address employer-controlled evidence. An arbitration tribunal may require the employer to produce relevant records within a specified period. Identify who can retrieve attendance, payroll and business-system records before a production deadline arrives, including records held by an outsourced provider.

2. Build a record for each disputed date

Start with the applicable working-time arrangement: the contract, roster, working-time policy and any administrative approval relied on for a special working-hours system. Then separate the questions: who arranged the task, what was actually done, when it was done and how the company dealt with payment or any claimed compensatory rest. A job title or a global classification such as exempt does not answer those China-specific questions.

For each date, link the manager’s instruction or meeting invitation to attendance entries, task-system activity and a work product or delivery record. Reconcile that record with payslips, payroll calculations, bank payments and relevant leave records. Keep discrepancies visible: being logged in, remaining in the office and performing employer-arranged work are facts that require explanation, rather than interchangeable measures of overtime.

A useful review sheet has columns for the claimed date and hours, the local work schedule, the instruction, the work performed, the attendance source, payment or rest records, and the unresolved point. This is an organizing tool for the evidence, not a replacement for the source records.

3. Test approval rules against actual management

The overtime cases jointly released by the Ministry of Human Resources and Social Security and the Supreme People’s Court on 26 August 2021 include a case in which attendance, messages and meeting records established employer-arranged overtime despite the employer’s failure to complete its approval process. The practical lesson is to examine the evidence of the work arrangement before relying on the absence of an approval form.

Preserve the policy version communicated to the employee, submitted applications, approval or rejection timestamps, and follow-up instructions. If local HR rejected overtime but an overseas manager still required an evening deliverable, retain both records and investigate the conflict. Do not backdate an approval, reconstruct a false rejection or ask staff to erase inconsistent messages.

4. Preserve the context of cross-border instructions

For headquarters calls, retain the invitation, updates, required participants, actual attendance and resulting tasks. Record the original time zone and the corresponding China time; distinguish a scheduled invitation from an attended meeting. A late-night message should be assessed with its requested action, urgency, response and actual work, rather than by its timestamp alone.

Keep complete relevant message threads and original exports where available, with attachments and an explanation of account identities and system settings. Record who exported the material, when and from which system. Prepare a Chinese explanation alongside the original foreign-language material, and check that dates, time zones and names remain consistent. Screenshots alone may omit context needed to assess the claim.

5. Separate record retention from claim limitation

Article 6 of the Interim Provisions on Wage Payment, Lao Bu Fa [1994] No. 489, requires written wage-payment records to be retained for at least two years and an individual wage statement to be supplied when wages are paid. This is a requirement concerning wage-payment records. It does not establish a universal two-year limit on overtime liability or permit every category of employment record to be deleted on the same date.

Article 27 of the Labor Dispute Mediation and Arbitration Law contains a special rule for unpaid remuneration during continuing employment; after the relationship ends, the employee generally must apply within one year of termination. Its interruption and suspension rules also require review. The 2021 official cases address this rule in overtime disputes. Set retention by record type, local requirements and the actual dispute; when a claim is raised, preserve the relevant date range and suspend routine deletion of those records.

6. Decide the response from a reconciled file

Ask local HR, payroll and the relevant managers to produce one reconciled chronology. Separate agreed facts, disputed hours, payment calculations and missing evidence. Counsel can then assess the applicable working-time rules, the support for each claimed period and whether correction, negotiation or a defended arbitration is appropriate. Preserving evidence does not itself establish that every claimed hour is payable.

Review any limitation defense during arbitration. Article 20 of SPC Interpretation (II), Fa Shi [2025] No. 12, restricts a party that failed to raise it during arbitration for its own reasons from first raising it in later litigation, subject to the stated new-evidence exception. For an initial legal review, prepare the employing entity, city, claimed period, claim or notice, working-time documents and the dated evidence bundle; begin contact with a non-confidential outline.