29.How does the law stipulate the obligation of employers to arrange for new employees to sign written employment contracts?

Answer: Article 82 of the Employment Contract Law stipulates that employer must sign a written employment contract with an employee within one month from the commencement date of the employment or from the date of a permanent employment contract is due to sign. In case of violation of this provision, the employer shall pay the employee double-wage damages from the date when the contract should have been signed. This is one of the most important amendment to the Labor Law in the promulgation of the Employment Contract Law 2008, and its legislative purpose is to change the widespread malady of employers¡¯ not signing written employment contracts with employees at that time.

The circumstances for employers‘ liability to pay employees double-wage damages are of three types: The first kind is that new recruit employees have not signed employment contracts within one month after they entered their employments; the second kind is that current employees have not signed employment contracts within one months after their fixed-term contracts expired and both parties continue the employment. The third is that the employer should have signed a permanent employment contract, including for the employee who has worked for the employer for ten consecutive years and has requested the employer to sign a permanent employment contract, and for the employee who has fulfilled two consecutive fixed-term contracts and requested the employer to sign a permanent employment contract.

What documents constitute a written employment contract required by law? Generally speaking, a written employment contract should meet the minimum requirement on contents and terms under the law, including information of both parties, rights and obligations of both parties, wages and rest and vacation benefits. 1Article 17 of the Employment Contract Law stipulates the necessary clauses for an employment contract. Entry registration forms for staff management, employment registration forms for government management purposes, and equity incentive agreements for employee incentives are not considered written employment contracts.2Ningbo Beilun District Xiaogang Zhengdao Household Goods Firm, Zhang Qiuyun Labor Dispute Second Instance Civil Judgment Zhejiang Ningbo Intermediate People’s Court Civil Judgment (2021) Zhe 02 Min Zhong No.1106 (Entry Registration Form), Shandong Dezhou Intermediate People’s Court Civil Judgment (2020) Lu 14 Min Zhong No.2267 (Employment Registration Form), Sparta (Yichang) Sports Culture Communication Co., Ltd., Civil Judgment of the Second Instance of Xiangwenjun Labor Dispute, Civil Judgment of Yichang Intermediate People’s Court of Hubei Province (2020) E 05 Min Zhong No.282 (Equity Incentive Agreement).If the written agreement signed by both parties can not fully meet all the provisions required by the Employment Contract Law, but its main content substantially reflects the rights and obligations of both parties, it can also be considered that both parties have signed a written employment contract.

Double-wage damages in the absence of a written employment contract is a new type of employment law compensation liability. However sometimes, although the employer should pay double-wage damages according to the Employment Contract Law, the special circumstances in practice such as the failure to sign an employment contract caused by the employee’s fault may make the court think that the employer must be exempted from the liability. For details, please refer to What are the exceptions to employers¡¯ obligation for double-wage damages?

It should be noted that the double-wage damages are punitive damages for the employer’s violation of the obligation to sign a written contract, not employment remuneration or wages.3Civil Ruling of Henan High Court (2021) Yu Min Shen No.9262, Civil Ruling of Civil Application for Retrial Examination of Labor Disputes by Ahai Xiaoguan Liangtang Restaurant and Zhao Huimin, Zhengdong New District, Zhengzhou City. ”The employer’s payment of double-wage damages to the employee is based on the legal consequences of the employer’s failure to sign a written employment contract with the employee in accordance with the provisions of the Employment Contract Law, which is of the nature of punitive damages.“Therefore, the double-wage damages can not be included in the monthly wage base for calculating economic compensation or other employment compensation.

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  • 1
    Article 17 of the Employment Contract Law stipulates the necessary clauses for an employment contract.
  • 2
    Ningbo Beilun District Xiaogang Zhengdao Household Goods Firm, Zhang Qiuyun Labor Dispute Second Instance Civil Judgment Zhejiang Ningbo Intermediate People’s Court Civil Judgment (2021) Zhe 02 Min Zhong No.1106 (Entry Registration Form), Shandong Dezhou Intermediate People’s Court Civil Judgment (2020) Lu 14 Min Zhong No.2267 (Employment Registration Form), Sparta (Yichang) Sports Culture Communication Co., Ltd., Civil Judgment of the Second Instance of Xiangwenjun Labor Dispute, Civil Judgment of Yichang Intermediate People’s Court of Hubei Province (2020) E 05 Min Zhong No.282 (Equity Incentive Agreement).
  • 3
    Civil Ruling of Henan High Court (2021) Yu Min Shen No.9262, Civil Ruling of Civil Application for Retrial Examination of Labor Disputes by Ahai Xiaoguan Liangtang Restaurant and Zhao Huimin, Zhengdong New District, Zhengzhou City. ”The employer’s payment of double-wage damages to the employee is based on the legal consequences of the employer’s failure to sign a written employment contract with the employee in accordance with the provisions of the Employment Contract Law, which is of the nature of punitive damages.“

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