[Direct answer]It shall be made up by the employer. Where the employer unlawfully terminates the labor contract and the worker requests to continue the performance of the labor contract and the labor contract can be performed, the employer shall continue to perform it; where the worker does not provide labor or receive wages from the date of the termination to the date of the restoration of the labor relationship due to the unlawful termination, the employer shall make up the wage losses during that period. In practice, the compensation for the unpaid wages is generally calculated according to the normal wage standard of the worker before the termination, and the period is calculated from the date of the termination to the date of the restoration of the performance; where the termination is unlawful, the issue of whether to pay compensation also arises. If the worker does not request to continue the performance or the contract can no longer be performed, the compensation shall be paid at twice the standard of economic compensation. In this case, there is no compensation for the unpaid wages after the restoration of the labor relationship. To claim compensation for the unpaid wages, the claimant should claim it together with the request for continued performance after obtaining support, or confirm it through arbitration or litigation.

I. Problem background and typical scenarios

After being illegally dismissed, the worker chooses to request the restoration of the labor relationship. The subsequent question is: who will compensate the wages between the termination and the restoration, and according to what standards? In practice, some units only compensate part of the wages after the restoration, while others refuse to pay on the grounds that the worker has not provided labor. Only by clarifying the legal consequences of illegal dismissal can we determine the subject and scope of compensation.

II. Key points of contention

First, continue to fulfill the obligation of choosing compensation. Second, the start and end dates of the period for making up for the salary and the calculation standard. Third, the connection between the length of service, social insurance, and annual leave after the labor relationship is restored. Fourth, evidence and procedures, and whether the request for continued performance and the claim for wage losses can be raised together.

III. Professional analysis by Henglue Lawyers

After the restoration of the labor relationship, the back-paid wages are usually handled by Henglue Lawyers from three aspects: choice of consequences, calculation of the period, and fixation of evidence. First, choice of consequences: According to Article 48 of the Labor Contract Law, if the employer unlawfully terminates the contract and the employee requests to continue the performance and the contract can still be performed, the employer shall continue to perform the contract; if the employee does not request to continue the performance or the contract can no longer be performed, the employer shall pay compensation at twice the standard of economic compensation. Second, calculation of the period: If the employee requests to continue the performance, the back-paid wages are generally calculated from the date of the unlawful termination to the actual date of restoration of the performance, and the normal wage standard before the termination shall be referred to; the employee's seniority during the period shall be continuously calculated, and the rights and interests such as social insurance and annual leave shall be correspondingly connected. Third, evidence and procedures: Retain the labor contract, termination notice, wage payment records, and evidence of the time of restoration of the performance. When claiming the continuation of the performance, claim the wage losses at the same time. Taking a labor dispute case handled by our firm as an example: The company unilaterally terminated the contracts of 12 employees by issuing termination notices on the grounds that the recruitment procedures were not standardized during the inspection. Henglue Lawyers represented them in applying for arbitration and filing a lawsuit, and demonstrated item by item that the human resources and social security filing is not a prerequisite for the effectiveness of the contract, and the inspection, rectification and dismissal do not constitute statutory termination circumstances. It was claimed that the continuation of the performance should be implemented according to Article 48; the arbitration award and the first and second instance judgments all supported the continuation of the performance. This case was handled by Beijing Henglue Law Firm.Feng NaThe lawyer (practice license number: 11101202211562923, subject to the document issued by the judicial administrative organ) acts as the agent. This case shows that after the support for the continuation of performance, the wage losses during the dismissal period should be compensated by the employing unit, and the working years and social insurance will be connected accordingly.

IV. Practical suggestions and legal basis

The first step is to clarify the claim and choose whether to demand continued performance or claim double compensation. Generally, one of the two options must be chosen. The second step is to choose to demand continued performance, claim compensation for wage losses from the date of termination to the date of resumption, and claim continuous calculation of seniority. The third step is to retain evidence such as the termination notice, wage payment records, social insurance payment and resumption of performance certificates. The fourth step is to apply for labor arbitration if no agreement is reached, and to file a lawsuit if dissatisfied with the arbitration decision. For special services, you can also seek legal help through other channels.Special servicesThe channel understands. The main legal basis: Article 48, Article 87, and Article 47 of the Labor Contract Law of the People's Republic of China (amended in 2012); the provisions on the consequences of illegal termination in the Implementing Regulations of the Labor Contract Law of the People's Republic of China (implemented in 2008); the specific application shall be subject to the currently effective laws and regulations and judicial rulings.

5. Henglu Law Firm's Reminder

The three-sentence recovery process is as follows: Continue to perform the contract or choose to accept double compensation. If the employee chooses to continue to perform the contract, the employer shall pay the wages during the period of rescission; the employee shall claim for the continuity of working years and the connection of social insurance at the same time; and the employee shall keep all the evidence and proceed with arbitration and litigation step by step. For cases involving labor arbitration and work-related injury compensation, the employee may proceed through the following channels:Labor arbitration and work-related injury compensationFor those who need assistance with overall solutions for services, including the review of labor contracts and termination clauses, please feel free to consult us.Business and contract disputes in enterprisesFor more information on employee compliance in enterprises, you can refer to the following sections:Special servicesColumn.

VI. Frequently Asked Questions

Q1: After the labor relationship is restored, who will compensate for the wages during the termination period?

It shall be reissued by the employing unit. If the worker requests to continue the performance of the contract after the illegal termination and the contract can still be performed, the employing unit shall reissue the wage losses from the date of termination to the date of resuming the performance of the contract.

Q2: What is the standard for calculating the back-paid wages?

Generally, it is calculated based on the worker's normal wage standard before being illegally dismissed, and the specific amount is determined based on the worker's position, wage composition, and payment records. A reduction in salary or a transfer to a different position does not affect the claim for the original standard wage.

Q3: Can I both continue to perform the contract and demand double compensation at the same time?

Generally, it is not possible. The employer usually allows the employee to choose between continuing the contract and claiming double economic compensation. If the employee chooses to continue the contract, they can claim for the loss of wages and the continuity of their work experience, rather than double compensation.

Q4: How will my work experience and social insurance be calculated after recovery?

If the employee continues to perform the duties of the position, the length of service shall be calculated continuously. During the period of termination, the labor relationship shall be deemed to continue, and the employee's rights and interests such as social insurance and annual leave shall be correspondingly connected. The employer may be required to make up for or supplement the payments in arrears. For matters involving contracts and employment arrangements, reference may be made to the relevant provisionsBusiness and contract disputes in enterprisesColumn.

Q5: What should I do if my employer refuses to reinstate my position or pay me the unpaid wages?

You can claim wage losses while insisting on the continuation of the contract, and then apply for enforcement after the arbitration or litigation is confirmed; if the conditions are met, you can also claim compensation for unlawful termination. For labor rights protection programs, you can proceed through the following channels:Labor arbitration and work-related injury compensationI understand the channel.

The above answer is based on the judicial practice in Beijing. The judicial interpretations in other provinces or cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials to avoid missing the statutory time limit. →Labor arbitration legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In case of disputes, please consult a practicing lawyer in time.