Grassroots lawyers also have their day

Chapter 949 This is truly an extraordinary imagination!

"We all know that labor dispute cases involve one arbitration and two trials. Labor arbitration must be the first step. You cannot file a lawsuit in court without going through labor arbitration. Of course, the court will not accept the case. Even if it does accept the case, it will eventually be dismissed (except in special circumstances, such as when the boss gives the employee an IOU for unpaid wages and there are no other disputes between the two parties, the employee can directly file a lawsuit in court without going through labor arbitration).

It is a basic legal principle that judges should apply the statute of limitations for labor arbitration when hearing labor dispute cases. That is, labor arbitration cases must be subject to the statute of limitations for labor arbitration, and cannot be subject to the statute of limitations for litigation.

Regarding the judge's views in this case, I can only say that the judge's imagination is truly extraordinary.

Specifically, the statute of limitations for labor arbitration refers to the statutory period within which parties to a labor dispute case can request protection of their rights from a labor arbitration institution. If they fail to exercise their rights within the statutory period, they lose the right to file for labor arbitration to protect their legitimate rights and interests.

Article 27 of the Labor Dispute Mediation and Arbitration Law stipulates that the limitation period for applying for arbitration of a labor dispute is one year. The limitation period begins to run from the date on which the party knows or should have known that their rights have been infringed. In other words, the limitation period for labor arbitration begins to run from the time the labor contract is backdated (or re-signed), when the worker is aware that their rights have been infringed.

The statute of limitations refers to a system in which, if a person whose civil rights have been infringed fails to exercise their rights within the legally prescribed period, the people's court will no longer protect their rights when the period expires.

In ordinary civil cases, the rights of the parties should undoubtedly be subject to the statute of limitations, that is, the statute of limitations should apply to ordinary civil cases.

The statute of limitations for labor arbitration is a provision of special law, while the statute of limitations for civil litigation is a provision of general law. According to the fundamental principle of "special law prevails over general law," this case is a labor dispute and should be subject to the statute of limitations for labor arbitration, not the general statute of limitations for civil litigation. Therefore, both the People's Court and the Labor Arbitration Commission should apply the one-year statute of limitations for arbitration when hearing labor dispute cases.

Secondly, regarding the starting time for calculating double wages for those who have not signed a labor contract.

Article 82 of the Labor Contract Law stipulates that 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.

According to the above regulations, the period during which workers are paid double wages per month is from the date of employment to within one year.

Double wages are only calculated for those who have established an employment relationship but have not signed a written employment contract, and there is a one-month grace period, meaning that double wages cannot be paid for more than 11 months.

Given the clear legal provisions, it is truly perplexing that the courts of first and second instance in this case still firmly supported the worker's right to calculate double wages for not having a labor contract from the date of employment rather than from the day after one month of employment!

In other words, this is not in accordance with the law! I don't know if all courts in this region calculate it this way, but at least in the cases our firm has handled in Henan Province, this is the first time we've seen it calculated this way," Wang Chuan said.

"Attorney Wang, may I interrupt for a moment? If an employment contract expires and is not renewed, but the employee continues to work there, from when does the calculation of double wages begin?" Sun Xing asked.

"This is a bit complicated, and the enforcement standards vary from place to place. Regarding double wages for failure to renew labor contracts, some places believe that a grace period of one month should still be granted, with a maximum of eleven months; while other places believe that no grace period should be granted, with a maximum of twelve months. It depends on the jurisdiction of the labor dispute case!" Wang Chuan said.

"Okay, I'm all set. Please continue!" Sun Xing nodded.

"Furthermore, regarding the issue of whether the company should pay double wages for backdating or supplementing labor contracts."

If a company does not sign a written employment contract with an employee at the beginning of employment, but signs an employment contract with the employee several months or even longer later, and the employment contract is dated on the date of signing, this signing method is called "supplementary employment contract signing".

If the date on the employment contract is the actual date of employment (i.e., the day of starting work), this type of contract is called a "backdated employment contract".

The main difference between "supplementing a labor contract" and "backdating a labor contract" lies in whether the date of signing the labor contract matches the actual employment date.

The actual employment date in this case was January 4, 2014. On June 3, 2014, both parties signed a written employment contract. The contract stated a term from January 4, 2014 to January 3, 2016, and was dated January 4, 2014, constituting a "backdated employment contract." If the date on the contract had been June 3, 2014, it would have been a "supplementary employment contract," Wang Chuan said.

"Attorney Wang, will backdating and re-signing affect the outcome of this case?" Situ Ting asked, puzzled.

"Well, in this case, there's no difference, but if it's within the statute of limitations for labor arbitration, then it's different."

In terms of validity, if both parties sign an employment contract on a voluntary basis, it is valid as long as it does not violate the provisions of laws and regulations, whether it is a "backdated employment contract" or a "supplementary employment contract".

However, if it falls within the statute of limitations for labor arbitration, backdating will not involve double the wage difference, because the date of the signature is on the actual date of employment, which is considered as signing a labor contract at the beginning of employment. It is no different from signing a normal labor contract.

"Re-signing a contract will involve paying double the wage difference. Because the date on the original employment contract is not the actual start date, but the date of the re-signing, there is a gap between the actual start date and the re-signing date. During this gap, no employment contract was signed. If it is still within the statute of limitations for labor arbitration, the court will order the company to pay the employee double the wage difference for the gap period," Wang Chuan explained.

"Understood!" Situ Ting nodded.

"In this case, whether it's backdating or retroactive signing, there's no essential difference, and neither should result in double wages for the period exceeding one month from the start of employment until the date the labor contract was signed. This is because the statute of limitations for labor arbitration has expired."

However, in some regions, such as Henan Province, this court held that "backdating a labor contract" violates the provisions of the Labor Contract Law and cannot exempt one from receiving double wages.

"I believe that as long as there is no prohibitive provision in the law, both parties sign the labor contract on a voluntary basis, and there is no infringement on the legitimate rights and interests of the worker, the court should not interfere," Wang Chuan said.

(End of this chapter)