[Direct answer]In the Beijing area, if an employee continues to work after the contract expires without a written renewal, it is generally considered that a de facto labor relationship exists, and the parties are deemed to have agreed to renew the labor contract. According to Articles 7 and 82 of the Labor Contract Law of the People's Republic of China (adopted on June 29, 2007, implemented on January 1, 2008, and amended and implemented on December 28, 2012), if an employer fails to conclude a written labor contract with an employee within one month but less than one year from the date of employment, the employer shall pay the employee twice the monthly wage from the day following the expiration of the one-month period. Therefore, if an employee continues to work after the contract expires without a renewal, the employee can legally claim twice the monthly wage during the period when no written labor contract was concluded. However, there are exceptions, such as when the employee himself/herself explicitly states in writing or by other verifiable means that he/she will not renew the contract, when the parties have reached an agreement on renewal but have not yet signed it, or when the employee refuses to cooperate in signing the contract. In addition, if the employment period exceeds one year, it is deemed that a non-fixed-term labor contract has been concluded. For referenceLabor arbitration and work-related injury compensationThe service description in the column.

I. Problem background and typical scenarios

Most people who consult this issue are employees who continue to work at their workplace after the expiration of their labor contracts. There are three common situations: the employer fails to renew the contract proactively but requires the employee to continue working, and the two parties never sign a written document; the employer verbally agrees to renew the contract but delays signing it; the employee explicitly refuses to renew the contract but still continues to work. In practice, the biggest problem is evidence: whether the employee continues to provide labor, how to prove the continuation of the labor relationship, and whether the employee has urged the employer to sign the contract but the employer has delayed it. The outcome of such disputes often depends on whether the employee can prove that the lack of a written contract is caused by the employer rather than the employee himself. Therefore, records of urging the employer to sign the contract are often key evidence. In addition, whether the renewal conditions themselves are reasonable may also become a point of dispute. For example, if the employer proposes significantly lowering the conditions or changing the position, and the employee refuses, the responsibility usually lies with the employer, and corresponding evidence should also be preserved.

II. Key points of contention

The first focus is whether the fact that the employer continues to employ the worker after the expiration of the labor contract is established. The second focus is the starting time for the lack of a written contract. The third focus is the subject of responsibility and the method of bearing the responsibility for the two-fold wage. The fourth focus is the evidence and consequences of the worker's refusal to sign the contract. The fifth focus is whether it is already considered as the conclusion of an open-ended labor contract. The sixth focus is the standard of proof for the employer's claim that it has reached an agreement to renew the contract. The seventh focus is the arbitration statute of limitations for the request for two-fold wages. The eighth focus is whether the concurrent claims of unpaid wages and unpaid annual leave can be raised together. For more information, please refer to the following sources:Special services and other cases; The organization of evidence and the design concept of the request can be referred to for reference.Business and contract disputes in enterprisesThe description of the column.

III. Professional analysis by Henglue Law Firm

Take a labor dispute handled by Attorney Feng Na of our firm as an example: The worker joined a design institute in May 2020 and served as the head of the design general contractor. The contract period ended on May 12, 2021, after which the written contract was not renewed, but the worker continued to work normally, accept management and receive wages. In February 2023, the employer issued a termination notice on the grounds of violating the employee manual and absenteeism without a valid reason, terminating the labor relationship. The worker claimed that he had been attending work regularly and had unused annual leave, and did not recognize the reasons for the termination. He entrusted a lawyer to apply for arbitration. The agency's approach was: first, to refute the accusation of absenteeism with attendance and work records, and at the same time, to claim the fact that the employer continued to employ the worker after the contract expired without signing a written contract as an independent claim. The arbitration committee adopted the agency's opinion and ruled that the employer should pay compensation for illegal termination, unpaid annual leave wages, wage differences, and double wage differences for not renewing the written labor contract. This case shows that the issue of renewal and the issue of termination should be handled and claimed separately, and should not be confused with each other. This case was handled by Beijing Henglu Law Firm.Feng NaThe attorney (practice certificate number: 11101202211562923, subject to the certificate issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action suggestions: 1. Organize the attendance records, salary payment records, and work arrangements after the contract expires to prove the fact of continued employment; 2. Send written reminders to sign the contract and retain the evidence, such as emails, chat records, or written notifications; 3. Check whether the contract has been in effect for one year. If so, it is considered a non-fixed-term labor contract; 4. Calculate the starting time and amount of double pay, paying attention to the statute of limitations for arbitration; 5. Concurrently verify other claims such as wage differences and unpaid annual leave; 6. Note the parties' attitudes toward contract renewal and retain corresponding evidence; 7. Legally claim relevant benefits in the event of termination or dismissal. Legal basis: Articles 7, 10, 14, 47, and 82 of the Labor Contract Law of the People's Republic of China (adopted on June 29, 2007, implemented on January 1, 2008, and amended and implemented on December 28, 2012); Article 27 of the Labor Dispute Mediation and Arbitration Law (adopted on December 29, 2007, implemented on May 1, 2008) regarding the statute of limitations for arbitration; Specific provisions shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Reminder

First, if the contract expires and is not renewed but the employer continues to employ the worker, a de facto employment relationship is usually established, and there is little controversy over this point. Second, the calculation of the double salary begins from the day after the worker has worked for one month, and it needs to be calculated accurately. Third, if the worker refuses to sign the agreement to assume responsibility for the double salary, the evidence of urging the worker to sign the agreement is very crucial. Fourth, after the worker has worked for one year, it is deemed that a non-fixed-term employment contract has been concluded, and the worker can no longer claim the double salary after that. Fifth, the request for double salary is subject to the statute of limitations for arbitration and should be raised in a timely manner. Sixth, the issues of renewal and termination should be claimed separately to avoid omitting any requests. Seventh, if the employer proposes unreasonable conditions for renewal, the worker has the right to refuse, and the responsibility lies with the employer in this case.

VI. Frequently Asked Questions

Q1: If the contract expires and is not renewed, does continuing to work still constitute an employment relationship?

Yes. If the labor contract expires and is not renewed in writing, but the worker continues to accept the unit's management, continue to provide labor, and receive compensation, it is generally recognized that there is a de facto labor relationship, and it can be considered that both parties agree to renew the labor contract. If the employment period exceeds one year, it is deemed that a non-fixed-term labor contract has been concluded. Therefore, the worker's rights and interests during the period of continued employment are protected by law, including wages, social insurance, and economic compensation.

Q2: Can I claim double wages?

You can claim compensation if you meet the conditions. According to Article 82 of the Labor Contract Law, if an employer fails to conclude a written labor contract with an employee within one month but less than one year from the date of employment, the employer shall pay the employee twice the monthly salary starting from the day after the expiration of the one-month period. However, this does not apply to situations caused by the employee himself, such as the employee expressing in writing that he does not wish to renew the contract, or the parties having reached an agreement to renew the contract but not yet signing it. When calculating the compensation, it is important to note that the starting date is the day after the expiration of the one-month period, rather than the day after the contract expires.

Q3: The unit has never signed a contract with me. Is it my responsibility?

It's not your responsibility. If the worker refuses to sign and does not assume the responsibility for double pay, then if the unit does not actively renew the contract, you can take the initiative to send a written reminder to fix the responsibility attribution. For example, you can send an email or a written notice stating that the contract has expired, express your willingness to continue the labor relationship, and request the unit to sign a written contract as soon as possible. At the same time, keep the proof of sending and delivery. The record of the reminder is often a crucial basis for judgment in disputes.

Q4: Is the employee still entitled to double pay even though a full year has passed?

It is no longer supported. If an employer fails to conclude a written labor contract with an employee within one year from the date of employment, it shall be deemed that the employer and the employee have concluded a non-fixed-term labor contract, and the employer can no longer claim double wages for not signing a written contract thereafter. Therefore, the right to claim double wages is subject to time limits. Generally, it starts from the day after the employee starts working for one month and ends on the day before the expiration of one year. It needs to be raised in time within the arbitration statute of limitations. For the part that is not claimed within one year, the arbitration institution generally will not support it.

Q5: What evidence is needed to prove it?

The following types of evidence are usually required: attendance records or access control and clock-in records, payroll records and pay slips, bank payroll statements, work arrangements and task assignment records, social insurance payment records, and written records of urging signatures or communication. The evidence needs to form a mutually corroborating chain to prove that the labor relationship indeed continued after the contract expired. At the same time, materials that can prove the identity of the subject of the labor relationship and the employee himself/herself should be preserved. The overall organization of the evidence can be referred to for reference.Special services and other casesThe instructions in the column.

The above answer is based on the judicial practice in Beijing. The adjudication guidelines in other provinces and 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 evidence materials, so as to avoid missing the statutory time limit. →Labor arbitration legal services·Attorney Feng Na·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open 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.