Global Compliance Desk – Taiwan

Voluntary Overtime Work

The Supreme Administrative Court recently made several important judgments regarding whether employers are obligated to provide employees with overtime pay for employees’ “voluntary overtime work”; this issue was also discussed at the 2018 Law Conference of the High Administrative Court, although their opinion was different from that of the Supreme Administrative Court.

Hence, judgments made by the Supreme Administrative Court have a binding effect on lower courts, it will be advisable to follow them and any other judgment or view by court or law conference shall be for reference only.

“Voluntary overtime work” and “Overtime pay” summary as per the latest judgment of the Supreme Administrative Court:

• Employees’ attendance records are the basis for employers to verify whether employees have been working at the workplace designated by employers during normal working hours or for any overtime hours.
• If an employee’s attendance records show that he remained in the office after normal working hours, and the employer did not make any objections or prevent him from staying in the office, the employee could be presumed as having worked overtime and the employer will be obligated to provide the employee with overtime pay in accordance with the Labor Standards Act.
• If an employee’s attendance records show that he remained in the office after normal working hours, but the employer could prove that the employee did not perform services for the employer after the normal working hours, the employer will not be obligated to provide the employee with overtime pay in accordance with the Labor Standards Act.
• If the employers prove that the employee didn’t perform any services required by the employer beyond normal working hours, instead, an employee was carrying out some personal work, such statement issued by the employee would suffice not to pay him overtime pay (see Supreme Administrative Court Judgment 106-Pan-715 (2017). However, if such statement was made in a standard format prepared by the employer and statements issued by different employees have the same wording and content, then even if such statements have been submitted by the employees, the Supreme Administrative Court opined that further investigations would need to be conducted to verify whether the employees did perform services for the employer after the normal working hours (e.g. checking the employee’s email correspondences) before the employer may be relieved from its obligation of providing overtime pay (see Supreme Administrative Court Judgment 107-Pan-508).