Should the company compensate the legal representative for double wages if he does not sign a labor

Case]: Mr. Li is the legal representative of a company, but Mr. Li has not signed a labor contract with the company, only the appointment document of the chairman of the investor, which promises to pay Mr. Li an annual salary of 200,000 yuan per year. Later, due to serious problems in the company's operations, Mr. Li was unable to pay Mr. Li's annual salary of $200,000, so Mr. Li submitted his resignation to the company at the end of 2009.

After leaving the company, he heard that he could ask the company to pay double wages for the period when he had not signed an employment contract, and Mr. Li asked if he could support his claim. [Yingke Lawyer's Comments]: The legal representative refers to the person in charge of exercising civil rights and performing civil obligations on behalf of the legal person in accordance with the law or the articles of association of the legal person.

The election of the legal representative shall be made in accordance with the procedures prescribed by law or the articles of association.

As for whether the legal representative should sign a labor contract with the company, it should be divided into two situations: if the legal representative is a shareholder of the company, has not performed actual work duties in the company, and there is no labor relationship with the company, there is no need to sign an employment contract; However, if the legal representative performs the corresponding duties in the company and has an employment relationship with the company, he or she shall be subject to the adjustment of the labor law and shall sign a labor contract with the company, but shall also be subject to the adjustment of the company law and the articles of association in the process of appointment, dismissal and performance of the labor contract. The notice on the issuance of the "Answers to Questions Concerning Labor Contracts in the Implementation of the Labor Law" also stipulates this issue:

1. On the issue of the signing of labor contracts by factory directors and managers.

According to the provisions of the Ministry of Labor's [1994] No. 360 document, if the factory director or manager is appointed (entrusted) by his superior department, he or she shall sign a labor contract with the hiring (entrusting) department. The directors, managers and relevant management personnel of enterprises implementing the company system shall sign labor contracts with the board of directors in accordance with the provisions of the Company Law of the People's Republic of China on managers and management personnel.

2. On the issue of the signing of labor contracts by the secretary of the party committee and the chairman of the trade union.

According to the provisions of the Ministry of Labor Lao Ban Fa [1995] No. 19 and No. 33, the secretary of the Party committee, the chairman of the trade union and other full-time personnel of the Party and the masses are also members of the employees, and shall sign labor contracts with the employer in accordance with the provisions of the Labor Law. Where there are special provisions, it may be handled in accordance with the relevant provisions.

In this case, Mr. Li was not a shareholder of the company, but performed actual work duties in the company, so the company should have signed a written employment contract with Mr. Li. According to Articles 2 and 10 of the Labor Contract Law on the scope of application of the Labor Contract Law and the provisions that the employee should sign an employment contract, the legal representative shall sign an employment contract with the employer, and if the employer fails to sign it, he shall also bear the legal responsibility of paying an additional double the salary. Author's Affiliation:

Labor and Personnel Department of Yingke Law Firm.

1. If you only serve as the legal representative and do not perform your actual work duties in the company, there is no labor relationship with the company, and you do not need to sign a labor contract.

2. If you serve as the legal representative and perform the corresponding job duties in the company, and have a labor relationship with the company, you shall sign a labor contract with the company, but the process of appointment, dismissal, and performance of the labor contract shall be subject to the company law and the articles of association. If the company does not sign a labor contract with the legal representative within one year after the legal representative joins the company, the company needs to pay double wages within one year from the second month, and more than one year is deemed to have entered into an indefinite contract with the company.

3. The Labor Contract Law stipulates:

Article 2 This Law shall apply to enterprises, individual economic organizations, private non-enterprise units and other organizations within the territory of the People's Republic of China (hereinafter referred to as "employers") that establish labor relations with workers and conclude, perform, modify, dissolve or terminate labor contracts.

Article 10 A written labor contract shall be concluded for the establishment of labor relations.

If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment.

If the employer and the employee conclude a labor contract before employment, the employment relationship shall be established from the date of employment.

Article 14 An indefinite-term labor contract refers to a labor contract in which the employer and the employee agree on an indefinite termination time.

If the employer does not conclude a written labor contract with the employee within one year from the date of employment, it shall be deemed that the employer and the employee have entered into an indefinite labor contract.

Article 82 Where an employer fails to conclude a written labor contract with a worker for more than one month but less than one year from the date of employment, it shall pay the worker twice the monthly wage.

The labor relationship in the Labor Law refers to the legal relationship formed by the employer paying labor remuneration to the employee and the employee providing professional labor. Since you work for the company and accept the management of the company, and the company has paid you the corresponding labor remuneration, there is no doubt that there is an employment relationship between you and the company. However, if you want to claim double wages, you must first provide relevant evidence to prove the existence of an employment relationship between you and the company.

According to the Circular of the Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations, an employment relationship shall be established if an employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances: (1) The employer and the worker meet the qualifications prescribed by laws and regulations; (2) The labor rules and regulations formulated by the employer in accordance with the law are applicable to the laborers, and the laborers are subject to the labor management of the employer and engage in paid labor arranged by the employer; (3) The labor provided by the worker is an integral part of the employer's business. At the same time, the notice also stipulates that if the employer has not signed a labor contract with the employee, the following documents may be referred to when determining the existence of an employment relationship between the two parties:

1) Wage payment vouchers or records (employee payroll roster) and records of payment of various social insurance premiums; (2) "Work Permit", "Service Certificate" and other documents issued by the employer to the worker that can prove the identity; (3) Recruitment records such as the "registration form" and "registration form" of the employer's recruitment filled in by the worker; (4) Attendance records; (5) Testimony of other workers, etc. Therefore, if you want to prove the existence of an employment relationship with the company, it is best for you to provide evidence such as payroll receipts, time cards, work permits, recruitment registration forms, and if possible, you can also ask your colleagues to testify in court.

If the employee does not sign a written labor contract with the employee for more than one month but less than one year from the date of employment, the employee has the right to request the employer to pay double wages, and if he does not sign a labor contract with the employee for more than one year, it is deemed to have signed an indefinite labor contract.

Legal basis] Article 82 of the Labor Manuscript Contract Law provides that if an employer fails to conclude a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly wage. If an employer violates the provisions of this Law by failing to conclude an indefinite-term labor contract with an employee, it shall pay the employee twice the monthly salary from the date on which the indefinite-term labor contract should be concluded.

If the employer has not signed a labor contract, it shall pay twice the monthly salary to the employee from the day after the expiration of one month from the date of employment to the day before the expiration of one year.

If a written labor contract is not concluded for more than one year, it shall be paid twice the salary for 11 months; After one year, it is deemed that an indefinite-term labor contract has been concluded.

Legal basis] Article 82 of the Labor Contract Law stipulates that if an employer fails to conclude a written labor contract with an employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly wage.

If the employer violates the provisions of this Law by not entering into an indefinite-term labor contract with an employee, it shall pay the employee twice the monthly salary from the date on which the indefinite-term labor contract should be concluded.

Legal analysis: If the employment contract is not renewed, you can get "double wages". The "date of employment" in the sense of the Labor Contract Law cannot simply be understood as the date on which the employee provides labor to the employer for the first time, because the employee has already worked for a certain number of years in the employer, and the renewal of the labor contract may involve changes in position, salary, benefits, etc., and the employer and the employee need to renegotiate and conclude a new written labor contractThe parties shall conclude the contract within one month after the expiration of the period.

Legal basis: Article 82 of the Labor Contract Law of the People's Republic of China If an employer fails to conclude a written labor contract with an employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly wage.

If an employer violates the provisions of this Law by failing to conclude an indefinite-term labor contract with an employee, it shall pay the employee twice the monthly salary from the date on which the indefinite-term labor contract should have been concluded.