[Direct answer]In the Beijing area, 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 a non-fixed-term labor contract has been concluded on the day when the employment period reaches one year. At the same time, the employer can still claim double wages for the 11 months from one month to one year before the employment period reaches one year. According to Article 14 Paragraph 3 and Article 82 of the Labor Contract Law of the People's Republic of China and Article 7 of the Implementing Regulations of the Labor Contract Law, if the contract is not concluded within one year, it shall be forcibly deemed a non-fixed-term contract, and the employer shall no longer be able to use the defense of not signing a contract. It is recommended to keep the evidence of employment and claim rights in time. For more details, please refer to the following link:Labor arbitration and legal services for work-related injury compensation.

I. Problem Background and Typical Scenarios

It's not uncommon for small and medium-sized employers not to sign contracts with their employees after one year of employment. Typical situations include: employers failing to sign or omitting to sign contracts for a long time, continuing to employ workers after the expiration of the contract without renewing it, and using the excuse of "temporary employment". Many workers mistakenly believe that it "doesn't matter" if they don't sign a contract, but in fact, after one year, the law directly presumes that the contract is a non-fixed-term contract, and their rights and interests will be better protected. In the judicial practice of Beijing, if an employee has not signed a contract after one year, it is presumed that the contract is a non-fixed-term contract, and the arbitration committee usually directly supports this. For related determinations, please refer to the following materials:Labor arbitration and work-related injury compensation services.

II. Key points of contention

There are three main points of contention. Firstly, the legal presumption effect: if no contract is signed within one year, it is deemed as an open-ended contract, and the employer cannot claim that "the contract has not been signed, so it can be terminated at any time". Secondly, the coexistence of double wages: being deemed as an open-ended contract does not affect the claim for double wages from one month to 11 months before the expiration of the contract. Thirdly, evidence and statute of limitations: it is necessary to prove the start date of employment and the wage standard, and pay attention to the monthly statute of limitations. For cases involving the determination of employment status, it can be combined with other evidence to prove it.Creditor-debtor relations and enforcement case servicesUnderstand the rules of evidence.

III. Professional analysis by Henglue Lawyers

Take the group labor dispute case handled by Henglue Law Firm as an example: A Co., Ltd. issued termination notices to 12 employees to unilaterally terminate the contracts on the grounds that the recruitment procedures were found to be irregular during inspections; the 12 employees entrusted Feng Na, a lawyer from Beijing Henglue Law Firm, to jointly apply for labor arbitration, first-instance and second-instance litigation. All of them were found to have unlawfully terminated the contracts and were ordered to continue to perform them. The court pointed out that the labor relationship is established from the date of employment, and the written contract becomes effective once it is signed and stamped by both parties. The filing with the human resources and social security department is not a prerequisite for the contract to take effect. The rectification and dismissal during inspections do not constitute a statutory termination situation. This case was handled by Beijing Henglue Law Firm.Feng NaThe attorney (practice license number: 11101202211562923, subject to the document issued by the judicial administrative organ) acts as the agent. This approach is also applicable to the situation where a contract is not signed within one year and is deemed to be of indefinite duration. For more details, please refer to the following document:Labor arbitration and work-related injury compensation services.

IV. Practical suggestions and legal basis

The core basis is Article 14 Paragraph 3 of the Labor Contract Law (amended on December 28, 2012, and implemented on July 1, 2013), which stipulates that if the employer and the employee fail to sign a labor contract within one year, the contract shall be deemed to be a non-fixed-term contract; Article 82 Paragraph 2 (double wages); and Article 7 of the Implementing Regulations of the Labor Contract Law (implemented on September 18, 2008). Practical advice: If the employer and the employee fail to sign a labor contract within one year, the employee may claim that a non-fixed-term contract has been concluded and continue to perform the contract; simultaneously claim double wages for 11 months; retain the payroll and attendance records as evidence of the employee's employment; and, if no agreement is reached, apply for arbitration within one year. For contracts that need to be retroactively signed, the employee may refer to the relevant provisions for reference.Special services and other case-related services.

5. Henglu Law Firm's Reminder

Not signing a contract within a year is not because the employer is taking advantage of the situation, but because the law mandates that the contract be deemed as an indefinite-term one, making it harder to terminate and providing stronger protection. The key lies in providing fixed employment evidence and grasping the statute of limitations, promptly claiming the status of an indefinite-term contract and double pay. Never accept the employer's delay in signing the contract as a tacit agreement. Exceeding the arbitration statute of limitations will result in the loss of rights. If you need to evaluate your case, you can seek assistance from professionals.Personal injury and medical dispute servicesSupport from labor professionals outside the field of labor law.

VI. Frequently Asked Questions

Q1: If I haven't signed a contract after a full year, does it really automatically count as an open-ended contract?

Yes. According to Article 14 Paragraph 3 of the Labor Contract Law, if the employer fails to conclude a written contract with the employee within one year from the date of employment, it shall be deemed that a non-fixed-term labor contract has been concluded on the day when the employment period reaches one year. This is a legal presumption, and the employer cannot claim that the contract can be terminated at any time on the grounds that the contract has not been signed. The employee can therefore request the employer to continue to perform the contract.

Q2: If the claim is considered to have no fixed term, what evidence should be prepared?

The core evidence includes: bank transaction records and pay slips, attendance records, work badges or ID cards, social insurance and personal income tax payment records, employment notifications and recruitment emails, communication in WeChat work groups, and colleagues' testimonies. The aim is to prove that "the employee has worked for the employer for one year without signing a written contract", thereby triggering legal presumptions. The more complete the materials are, the stronger the claim will be.

Q3: For cases like this, what's the approximate cost of hiring a lawyer?

Labor arbitration generally does not charge fees or the fees are very low; the attorney's fees depend on the complexity of the case and the amount of the claim, as agreed in the contract, and there is no uniform standard. They can be charged on a per-case basis or on a proportional basis. Since it involves double wages and continued performance, the benefits of protecting rights can usually cover reasonable costs. It is recommended to consult and evaluate first before deciding whether to hire a lawyer to avoid making blind expenditures.

Q4: For disputes arising from the failure to sign a contract within one year, how long does it usually take to resolve them?

Labor arbitration generally concludes within 45 days from the date of acceptance, and the time limit may be extended by 15 days for complex cases. For those who are not satisfied with the arbitration result and file a lawsuit, the first-instance ordinary procedure takes six months, and the summary procedure takes three months. The second-instance procedure takes three months. Generally, it takes several months from the application to the result. It is recommended to provide sufficient evidence of the employment period during the arbitration stage, and to improve the efficiency of the final arbitration or mediation.

Q5: If I find that I haven't signed a contract after working for a full year, what should I do first?

First, require the employer to retroactively sign a non-fixed-term written contract and keep records; second, systematically collect employment evidence such as pay slips, attendance records, and work badges to determine the exact date of employment; third, calculate the 11-month double pay that can be claimed and pay attention to the statute of limitations for each month; fourth, if no agreement is reached, apply for arbitration within one year and claim that the employment relationship is deemed to be non-fixed-term and entitled to double pay. If necessary, consult a lawyer.

The above content is based on the judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm for specific situations.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, to avoid missing the statutory time limit. →Labor arbitration legal services·Attorney Feng Na·Beijing Henglu 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. If you encounter disputes, please consult a practicing lawyer in time.