"Security guard position at ×× Building, room and board included, daily settlement of 260 yuan/day, required to stand guard for one hour during morning and evening rush hours..." In a WeChat group for security work, a recruitment message caught Liu Hao's (pseudonym) attention. "Room and board included plus daily settlement," Liu Hao decisively added the recruiter's WeChat and signed up to apply. A day later, Liu Hao began working as a security guard.

　　Two months later, Liu Hao was dismissed by the company and applied to the labor arbitration commission for arbitration, requesting that the company pay overtime wages and the double wage differential for not signing a labor contract. The labor arbitration commission supported Liu Hao's application. The company, dissatisfied with the labor arbitration award, argued that Liu Hao had been hired through an intermediary, that the two parties did not constitute a labor relationship, and that no related fees needed to be paid, and filed a lawsuit with the Beijing No. 1 Intermediate People's Court (hereinafter referred to as the "Beijing No. 1 Intermediate Court").

　　In recent years, many employers have shifted their recruitment methods from offline to online; for example, registration, job applications, and other processes can be completed through WeChat groups. While this provides employment convenience for workers, problems such as unstable labor relationships have followed. How can it be determined whether a labor relationship exists between the two parties? Can WeChat records be used to determine that the two parties have concluded a written labor contract? If a labor relationship is constituted, should the employer pay double wages for not signing a labor contract?

　　WeChat records can prove the establishment of a labor relationship between the two parties

　　"In handling online recruitment cases, the difficulty in adjudication is how to determine whether a labor relationship exists between the two parties and whether a labor contract has been signed," said Ji Yanqiong, a Level-4 Senior Judge of the Beijing No. 1 Intermediate Court. The written labor contract signed by both parties is an important basis for clarifying the rights and obligations of both labor and management. If the two parties have not signed a labor contract, it is necessary to examine, in accordance with the Labor Law, the Labor Contract Law, and other relevant legal provisions, whether the two parties have established an actual labor contract relationship.

　　During the handling of cases, Ji Yanqiong found that, because some workers have weak legal awareness and insufficient awareness of collecting and preserving evidence, while individual employers, due to issues such as circumventing the law and chaotic employment management, cause key evidence to be missing or concealed, and some cases involve disputes lasting a long time, it is relatively difficult for the court to determine the legal facts in dispute.

　　Ji Yanqiong told a reporter from China Youth Daily and China Youth Net that when handling such cases, the main approach is to examine, based on the evidence, whether the employment relationship between the two parties satisfies the three characteristics of a labor relationship: the employer and the worker meet the subject qualifications stipulated by laws and regulations; the rules and regulations formulated by the employer apply to the worker, the worker is subject to the labor management of the employer, and engages in remunerated labor arranged by the employer; and the labor provided by the worker is a component of the employer's business.

　　"An employer establishes a labor relationship with a worker from the date of employment," said Wang Wei, a Level-2 Judge Assistant of the Beijing No. 1 Intermediate Court. This means that if a worker can provide evidence proving the fact of their work at the employer, they have initially completed the burden of proof for the labor relationship, and the employer then needs to provide counter-evidence to prove that the two parties established a labor service relationship, a contracting relationship, or another employment relationship that excludes a labor relationship.

　　In the trial of this case, Liu Hao submitted evidence including wage payment records, attendance sheets, work logs and work record forms, shift schedules, and statutory holiday duty schedules. Although the company claimed that the two parties did not have a labor relationship, it did not provide evidence supporting its claim. Ultimately, based on the evidence in the case, the Beijing No. 1 Intermediate Court presumed that the company had established a labor relationship with Liu Hao.

　　Huang Leping, Director of the Beijing Yilian Labor Law Aid and Research Center, said that although the two parties in this case did not sign a written labor contract, in their WeChat chat records they had already agreed on basic elements such as wage standards, work content, and working hours, and the WeChat content reflected that the two parties had reached a consensus on forming a labor contract.

　　Ji Yanqiong said that if the WeChat chat records clearly set out the basic essential clauses of a labor contract and can be investigated and retrieved at any time, they should be deemed to constitute a labor contract signed by the two parties in written form.

　　Ji Yanqiong reminded that if the two parties sign an electronic labor contract via email or WeChat, various non-standard operations may cause the labor arbitration commission or the court not to recognize the validity of the electronic contract involved, and there are certain risks in concluding a labor contract via WeChat.

　　Employers that do not sign labor contracts should pay double wage differentials

　　"If 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 double wages each month," Ji Yanqiong analyzed. According to the relevant provisions of the Labor Contract Law, the employer should bear the legal liability for not concluding a written labor contract and pay Liu Hao the double wage differential for the period of employment during which no labor contract was signed.

　　"Requesting payment of extended overtime wages, and overtime wages for Saturdays, Sundays, and statutory holidays." Among Liu Hao's litigation claims, one was a request that the company pay overtime wages. Ji Yanqiong explained that the state implements a working-hour system under which workers work no more than 8 hours per day and an average of no more than 40 hours per week. Employers should strictly implement labor quota standards and must not force or disguisedly force workers to work overtime.

　　In this case, the two parties had no dispute over the fact of overtime, but the company claimed that the daily wage agreed upon by the two parties already included overtime pay and that it should not pay Liu Hao overtime wages again. The Beijing No. 1 Intermediate Court held that the company should bear the burden of proof regarding the composition of the worker's wages; the company did not provide sufficient evidence for its claim that the daily wage already included overtime pay, and the daily working hours agreed upon in the WeChat messages between the two parties had exceeded the relevant legal provisions, so the company should pay overtime wages.

　　Labor contracts should be signed on electronic labor contract platforms that meet the conditions

　　"When signing a labor contract, workers should pay attention to the employer's subject qualifications and confirm whether the employer's official seal and the identity of the legal representative are consistent with the registered information, so as to prevent disagreements over the determination of the subject of the labor relationship when a dispute arises." In Ji Yanqiong's view, labor arbitration or litigation is, for both employers and workers, a remedy after a dispute has occurred. Only if both parties strictly comply with legal provisions and establish a sound employment relationship can disputes be avoided to the greatest extent and losses on both sides be reduced.

　　Ji Yanqiong suggested that workers should carefully negotiate with employers over important matters such as the probation period stipulated in the contract, labor remuneration standards, the specific workplace, the working environment, and welfare benefits, so as to avoid harming their own rights and interests by signing contracts hastily.

　　Wang Wei believes that efforts should be made to enhance employers' awareness of compliance and responsibility, establish standardized recruitment, employment, and management systems, sign and renew labor contracts with workers on time in accordance with relevant legal provisions, standardize wage, bonus, attendance, and performance systems, and fully protect workers' right to know.

　　According to reports, in 2021, the General Office of the Ministry of Human Resources and Social Security issued the "Guidelines for the Conclusion of Electronic Labor Contracts" (hereinafter referred to as the "Guidelines") to guide employers and workers in lawfully and properly concluding electronic labor contracts. The Guidelines point out that when an employer and a worker conclude an electronic labor contract, it shall be concluded through an electronic labor contract conclusion platform. The electronic labor contract shall take effect after the employer and the worker reach a consensus through consultation and sign a reliable electronic signature, and shall be accompanied by a trusted timestamp. After the electronic labor contract is concluded, the employer shall notify the worker by means such as mobile phone text messages, WeChat, email, or App information prompts that the conclusion of the electronic labor contract has been completed.

　　Judges remind that when labor and management choose the form of an electronic labor contract to conclude a contract, they should choose an electronic labor contract platform that meets the conditions, and give priority to electronic labor contract conclusion platforms built by government departments such as human resources and social security departments, so as to avoid the risk of their labor contract being determined to be invalid.