Is the labor law still applicable when there is no contract?

Tube. As long as there is a de facto employment relationship between the parties.

According to the law, an employer and an employee shall sign a labor contract to clarify the rights and obligations of both parties. However, in practice, some unscrupulous enterprises refuse to sign labor contracts with employees in order to avoid liability. The law stipulates that even if the employer has not signed an employment contract with the employee, as long as the employee can provide evidence to prove that both parties meet the conditions for establishing an employment relationship, and can provide further evidence to prove that he has worked for the employer, it means that there is a de facto employment relationship between the employee and the employer.

Workers can protect their rights in accordance with the law: first complain to the local labor inspection brigade, or directly apply for labor dispute arbitration (within the Human Resources and Social Security Bureau), and if they are not satisfied with the arbitration result, they can also file a lawsuit with the people's court.

Legal basis: Notice on Matters Concerning the Establishment of Labor Relations

1. The employment relationship shall be established if the 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 workers, and the workers are subject to the labor management of the employer and engage in paid work arranged by the employer;

3) The labor provided by the worker is an integral part of the employer's business.

2. 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 employee that can prove the employee's identity;

3) Recruitment records such as the "registration form" and "registration form" filled in by the worker;

4) Attendance records;

5) Testimony of other workers, etc.

Among them, the employer shall bear the burden of proof for the relevant documents in items (1), 3 and 4).

If there is evidence such as work reports, attendance, appraisal forms, pay stubs, witness testimony of other employees of the company that can prove the existence of labor relations with the company, after the occurrence of labor disputes, an application for coordination shall be submitted to the local labor dispute mediation committee (the name varies from place to place). If the coordination fails, the parties may file a lawsuit with the people's court on the labor dispute matter within 15 days from the date of receipt of the ruling.

Of course, as long as there is a labor relationship, it will be managed.

The company shall sign a written labor contract with the employee within one month from the employee's employment (and also sign a labor contract with the employee during the probationary period), and if there is no written labor contract, the employee shall be paid double wages from the second month. However, it is important to note the one-year statute of limitations, which expires month by month for claims for double wages. The timeliness of double pay is within one year after the employee knows or should know that his or her legitimate rights and interests have been violated.

In practice, the one-year statute of limitations is calculated from the date of payment of wages in the second month without signing an employment contract. If the company fails to pay wages or overtime wages according to the statutory standards and time, the employee can be forced to resign, and the company can pay one month's salary as compensation for each year of service, and the employee's salary during the working period can also be recovered. During the probationary period, the employee can submit the resignation in writing 3 days in advance, and if the probationary period is over, the employee can submit the resignation in writing 30 days in advance.

The company shall settle the salary within three working days after the employee leaves the company, and the employee can ask the company to settle all your salary within three working days. Employees can submit a resignation request to the company by express delivery, and at the same time keep the express delivery slip as evidence that they have submitted their resignation to the company in advance. Even if the employee voluntarily resigns or resigns urgently, the company should settle all the wages during the working period and cannot deduct the money.

If the company suffers losses due to the early departure of employees, it should compensate for the losses, but this situation is mainly for senior managers or technical personnel, but such losses are generally difficult to prove, so enterprises should make relevant manpower preparations when recruiting personnel. The law stipulates that all wages should be settled within three working days after the resignation, but in practice, companies with a return draft generally pay them together the next time they pay their salaries.

Article 1 of the Notice on Matters Concerning the Establishment of Labor Relations shall be established if an employer recruits a worker without entering into a written labor contract, but the employer meets the following circumstances when the employee is assigned filial piety. 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 workers, and the workers are subject to the labor management of the employer and engage in paid work arranged by the employer; 3) The labor provided by the worker is an integral part of the employer's business. Article 2 of the Notice on Matters Concerning the Establishment of Labor Relations Article 2 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 employee that can prove the employee's identity; 4) Attendance records; 5) Testimony of other workers, etc.

If the employer violates Article 10 of the Labor Contract Law by not signing the contract, the employee may, in accordance with Article 82 of the Labor Contract Law and Articles 6 and 7 of the Regulations for the Implementation of the Labor Contract Law, compensate twice the salary from the day after the contract has not been signed for one month, up to a maximum of 11 months, and re-sign the contract.

Article 10 of the Labor Contract Law A written labor contract shall be concluded to establish a labor relationship. 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 11 Unclear Labor Remuneration in the Case of Failure to Conclude a Written Labor Contract The employer fails to conclude a written labor contract at the same time as employing the employee, and the labor remuneration agreed upon with the worker is not clear, the labor remuneration of the newly recruited worker shall be implemented in accordance with the standards stipulated in the collective contract; Where there is no collective contract or the collective contract does not provide for it, equal pay for equal work shall be implemented. Article 82 Legal Liability for Failure to Conclude a Written Labor Contract 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 this law by not concluding 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: According to the provisions of the Labor Contract Law of the People's Republic of China, if the employer and the employee have not signed a written labor contract with the employee for more than one month but less than one year after the establishment of the labor relationship, the employer shall pay the employee twice the monthly wage; If no written contract has been concluded with the employee for more than one year, it is deemed that the two parties have signed an indefinite term labor contract.

Legal basis: Labor Contract Law of the People's Republic of China

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.

If an employer violates this law by not concluding 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.

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.

The employer and the employee may enter into an indefinite-term labor contract if they reach an agreement through consultation. In any of the following circumstances, if an employee proposes or agrees to renew or conclude a labor contract, an indefinite-term labor contract shall be concluded in addition to the employee's proposal to conclude a fixed-term labor contract:

1) The worker has worked for the employer for 10 consecutive years;

2) When the employer implements the labor contract system for the first time or the state-owned enterprise restructures and re-concludes the labor contract, the worker has worked for the employer for 10 consecutive years and is less than 10 years away from the statutory retirement age;

3) Where two fixed-term labor contracts have been concluded consecutively, and the employee has not renewed the labor contract without the circumstances provided for in paragraphs 1 and 2 of Article 39 and Article 40 of this Law.

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.

First of all, the employee must sign a written labor contract within one month of work, if not, double salary will be calculated from the second month (up to 11 months), and if the written labor contract is not signed within one year, it will be regarded as an indefinite labor contract. Secondly, it is the legal obligation of the employer to pay social insurance, and social insurance should be paid from the first month of employment. The employer may be required to make up the payment, but the employee needs to pay the part borne by himself.

Finally, even if a written employment contract is signed, the employer can be notified of the termination of the employment contract one month in advance. Have a good day.

Notice on Matters Concerning the Establishment of Labor Relations

Article 1. If an employer recruits a worker without a written labor contract, but at the same time meets the following circumstances, the labor relationship shall be established.

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 workers, and the workers are subject to the labor management of the employer and engage in paid work arranged by the employer;

3) The labor provided by the worker is an integral part of the employer's business.