If a written labor contract is not entered into due to the fault of the employee, should the employer pay double wages?
Date：2026-05-13 17:44:47 Views：26
After the employee joins the company, the employer requests to enter into a written labor contract, but the employee refuses to sign due to personal reasons. Should the employer pay double wages?On September 19, 2024, Xiao Jia joined Private Middle School Yi as a Vice Principal. Private Middle School Yi intended to enter into a labor contract with Xiao Jia and pay social insurance for him, but Xiao Jia refused to transfer his social insurance to the school and also declined to sign the labor contract, stating that he was already paying social insurance in another city. On September 19, 2025, Private Middle School Yi dismissed Xiao Jia. Xiao Jia believed that a labor relationship existed between them and that a written labor contract had never been signed; therefore, Private Middle School Yi should legally pay him the difference of double wages for failing to sign a written labor contract. Xiao Jia filed for arbitration with the Labor and Personnel Dispute Arbitration Committee. After the application was ruled inadmissible, he filed a lawsuit with the court, dissatisfied with the ruling.The focus of the dispute in this case is whether the employer shall pay double wages for failure to enter into a written labor contract when the failure is ributable to the employee. The court held that Article 82 of the Labor Contract Law of the People's Republic of China stipulates the legal liability that employers shall bear for failo enter into a written labor contract. If an employer fails to enter into a written labor contract with an employee for more than one month but less than one year from the date of empthe employer shall pay the employee double wages on a monthly basis. Article 7 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Apation of Law in the Trial of Labor Dispute Cases explains the exceptions to the above provision: if an employee requests the employer to pay double wages on the grounds that the employer has not tered into a written labor contract, the people's court shall support such request in accordance with the law, except where the employer proves that the failure to enter into the contract is due to e employee's intentional act or gross negligence. In this case, as the employer, Private Middle School B failed to enter into a written labor contract with the employee, Xiaoia. Xiao Jia now requests Private Middle School B to pay the difference of double wages for the failure to sign a written labor contract. Private Middle School B has provided evidence proving that it requted Xiao Jia to sign a written labor contract at the beginning of his employment, but Xiao Jia explicitly refused the request for personal reasons, resulting in the failure to enter into a written lat throughout the entire period.The reason for the failure to enter into a written labor contract falls under the category of intentional conduct by the employee as stipulated in Articlf the "Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases." As the employer, Private Mdle School B has fulfilled its duty of good-faith negotiation and is without fault; therefore, Xiao Jia's claim for the difference in double wages for failure to enter into a wbor contract is without legal basis and should not be supported. Ultimately, the court ruled to dismiss Xiao Jia's claims. After the first-instance judgment was rendered, Xiao aled against the judgment. The second-instance court upheld the first-instance judgment and did not support his appeal claims. The judgment has become effective.Currently, China's labor market exhibits a phenomenon of "emphasizing usage over contracts" to a certain extent, with some workers and employerng to attach sufficient importance to written labor contracts. Written labor contracts formalize the rights and obligations of workers and employers in legal documents, serving as the most direct and compelling evidence of the istence of a labor relationship. When establishing a labor relationship, employers, as the hiring party, often hold the initiative in signing contracts; failing to enter into a written labor contract withs has become a common means for employers to evade employment responsibilities. To address this issue, Article 82 of the Labor Contract Law of the People's Republic of China stipulate an employer fails to enter into a written labor contract with a worker for more than one month but less than one year from the date of employment, the employer shall pay the worker doue wages on a monthly basis. The double wages prescribed in this article are punitive in nature; by imposing punitive damages on employers, this measure increases the cost of illegal employment, compels employerulfill their obligation to enter into written labor contracts, and guides both labor and capital to transition from "oral agreements" to "written contracts."Although it is common in practice for employers to fail to proactively enter into written labor contracts with employees, labor contracts are bilateral contracts requiring mutual agreement and cooperation between the employee and the employer. Therefore, not all cases of failure to enter into a written labor contract are due to the employer's fault. If the reasons for the failure to enter into a written contract are not distinguished and the employer is uniformly held liable to pay double wages, this would violate the principle of good faith. Article 7 of the "Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases" explains the exceptional circumstances where the employer is not liable. If the employer can prove that the failure to enter into a written contract was due to force majeure, the employee's intentional act or gross negligence, or other circumstances prescribed by laws and administrative regulations, the employer is not required to pay double wages to the employee. Among these, "force majeure" is a customary statutory defense; in the context of labor dispute resolution, it still refers to objective circumstances such as natural disasters and abnormal social events that are unforeseeable, unavoidable, and insurmountable. The manifestations of "the employee's intentional act or gross negligence" are diverse in judicial practice and require specific analysis based on the case details. Common scenarios include: employees engaged in personnel management or senior executives, HR personnel, or specialists responsible for entering into labor contracts failing to sign contracts with themselves; employees delaying or refusing to sign contracts despite the employer's notice; and employees signing written labor contracts through fraudulent means rather than in person. The "other circumstances prescribed by laws and administrative regulations" constitute a catch-all clause. For example, the three scenarios of automatic renewal of labor contracts upon expiration stipulated in Article 8 of the aforementioned Interpretation (II) do not constitute a failure by the employer to enter into a written labor contract. Furthermore, under the circumstances stipulated in Article 9 where it is deemed that the employer and the employee have entered into an open-ended labor contract, if the employee claims double wages for the period of the open-ended contract on the grounds that a written contract was not timely supplemented, such claims shall not be supported. This provision clarifies the conditions for the employer to be exempt from the liability of paying double wages, aligns with actual employment practices, and precisely addresses the legal application difficulties existing in labor employment practice.The judge reminds that entering into a written labor contract is both a right and an obligation for both the employer and the employee. Employers should promptly sign written labntracts with employees, and employees should actively cooperate in signing them. Both parties should communicate in a timely manner regarding the reasons for not signing a written labor contract and properly retain relevantto safeguard their legitimate rights and interests, thereby jointly building a harmonious and stable labor market.Article 82 of the "Labor Contract Law of the People's Republic of China" stipulates that if an employer fails to enter into a written labor contract with an employee for a period exceeding one month but less than one year from the date of employment, the employer shall pay the employee double wages on a monthly basis.
Article 7 of the "Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases": Where a worker claims double wages from the employer on the grounds that a written labor contract has not been concluded, the people's court shall support such claim in accordance with the law, except where the employer proves the existence of any of the following circumstances: (1) the failure to conclude a contract is caused by force majeure; (2) the failure to conclude a contract is caused by the intentional act or gross negligence of the worker; (3) other circumstances prescribed by laws or administrative regulations.Article 8 Where the term of a labor contract expires and any of the following circumstances exists, the people's court shall determine that the term of the labor contract is automatically extended in accordance with the law, and this shall not be deemed as the employer failing to enter into a written labor contract:
Article 9: Where there is evidence proving the existence of the circumstances stipulated in the third paragraph of Article 14 of the Labor Contract Law, namely that "it shall be deemed that the employer has entered into an open-ended labor contract with the employee," and the employee requests to enter into a written labor contract with the employer, the people's court shall support such request in accordance with the law; where the employee requests the employer to pay double wages for the period during which it is deemed that an open-ended labor contract has been entered into with the employee on the grounds that the employer failed to timely enter into a supplementary written labor contract, the people's court shall not support such request. This article is reprinted from the WeChat Official Account "Shandong Higher People's Court", and we express our gratitude!
