Failed to Sign the Labor Contract Timely

The labor contract signed by Shao and Company A expired in Nov. 2014. Company A failed to renew the contract timely. In Feb. 2015, Company A asked Shao to renew the contract, and required Shao to sign the date as Nov. 2014 in the contract. Later, Shao took the vocal record of the talk with the HR manager as the evidence, and required Company A to pay double salary for the periods of not signing the contract. Finally, the court supported Shao’s claim.

Article 82 of the “Labor Contract Law” clearly stipulates that an employer shall sign the labor contract with an employee timely, otherwise the employer shall undertake the double salary punishment. It is aiming to protect the rights and interests of the employees, in case that an employer is maliciously to avoid signing a labor contract.

In practice, the employer might fail to sign labor contracts timely for various reasons. Under such circumstances, in order to correct the mistake, many employers may require employees to sign the date which is earlier than the real signing date, just like Company A.

In the judicial practice, local courts have different opinions on such correction method. Some courts would not support employee’s claim for double salary punishment. Those courts hold that where an employee sign the date which is earlier than the real signing date, the employee has confirmed the period without labor contract, and he has waived the right to claim for double salary punishment. For example, (2016) Yue 04 Min Zhong No.1147 judged by Zhuhai Intermediate People’s Court. Some courts would support employee’s claim, for example (2014) Yizhong Min Zhongzi No. 6073 judged by Beijing No. 1 Intermediate People’s Court. However, it shall be noted that in the second case, the employee provided the vocal record, which might let the court believe that the employer was maliciously to avoid signing a labor contract.

In practice, there is another method to correct such mistake, which the employer would require the employee to sign the real date, but the period shall cover the previous period which both parties failed to sign the contract timely. Take the case in the beginning for example, if Company A chooses this method, the date shall be signed as Feb. 2015.

In the First volume of the “Civil Trial Frontier”, the judges of No.1 civil court of the Supreme People’s Court have released the “Dispute and Handling of Labor Contracts for Substituting Labor Contracts”, in which they have analyzed the consequences for different methods to correct such mistake. If the employee signed the real date, and the employee could not provide any evidence to prove that he was coerced, then the employer shall not be ruled to undertake double salary punishment. If the employee signed the date earlier than the real signing date, then such behavior shall be deemed as a maliciously excuse of the employer, and the employer shall be ruled to undertake double salary punishment. This opinion is a little bit different from the previous judicial practice opinion.

In summary, the employer shall strengthen HR management, and avoid the failure on signing the labor contract timely. Considering the Supreme People’s Court holds the negative attitude on the first correction method, and there are different opinions in the judicial practice, it is recommended that the employer shall ask the employee to sign the real date. If it is possible, it would be better to require the employee to issue a commitment letter in which the employee agrees to waive the right for claiming for double salary punishment.