Social insurance contributions: less pay or not to pay social security

Social insurance contributions: less pay or not to pay social security

Legal risk indication:

Social insurance, is a loss of ability to work, temporarily lost jobs for health reasons or causes loss of population to provide a social and economic system of income or compensation, social insurance including medical, pension, unemployment, work injury and maternity insurance. In accordance with the provisions of the law of our country, the establishment of labor relationship between the unit and the laborer, it shall go through the formalities for the workers to pay social security, the corresponding proportion of social insurance in accordance with the law, the social security costs by the employing unit and the laborer in accordance with the law of proportion. But the reality of the labor relations, widespread non payment or pay social security employers, and workers often because of fear of losing his job and trying to repose in the employer's self "correction", which will seriously affect the relevant social security benefits the workers can enjoy in the corresponding case is.Workers should understand the relief measures, the relevant legal provisions and the right to dispute, to better protect their rights and interests.

The level of risk:☆ ☆ ☆☆

Circumvention measures:

For the project	Focus attention
Try to have a written labor contract	Since the relationship with the employee, the employer shall30The signing of a written labor contract with the laborer days, and shall establish labor relations in the month or the month (according to local regulations or practices) for workers to buy social insurance according to law. Therefore, the first to establish the labor relationship with the employer, the employer can enjoy the purchase social insurance for their welfare, and sign a written labor contract, laborer's rights will make more easily.
Retention and the employer There is evidence of labor relations	In reality, many employers are not willing to sign a written labor contracts with workers, workers to work also dare not ask the employer must sign. As a result, it is difficult to prove the existence of the labor relations between himself and the unit. BasisThe labor department "notice" on the establishment of labor relations matters prescribed in article second,Can refer to the following documents,Proof of labor relations between the two sides:1The payment of wages, documents or records (employee payroll roster), pay various social insurance records;2To the laborer, the employing units issued "work permit", "service card" to prove identity documents;3, employers of workers in the recruitment of "registration form", "application form" and other recruits record;4The attendance record;5Testimony of other workers, etc.. Therefore, when employers do not sign labor contract is not for their own pay social security, workers should pay attention to keep or collect the evidence, to provide evidence for their rights.
Understand the payment proportion and your social security number	Each worker pay social security numbers are not the same, the employee shall by understanding your social security number, have a look whether the employers for their full payment of the social insurance premiums, in order to protect the rights and interests. 1,The payment for laborThe annual total salary monthly averages as this year month base pay,The average wage is lower than the lowest not workers in the city last year month60%The highest average, not higher than workers in the city last year monthly wages300%; 2,The new employer's personnel to staff salary monthly wage income as the base of payment term. The concrete base and insurance, the proportion of contributions to social security because of the different nature of the workforce will have a certain gap, such as the Beijing city is divided into: divided into BeijingUrban registered permanent residence, the rural labor force, migrant workers and outside the town of accounts, and several kinds of rural labor migrant workers. Because of all kinds of concrete base and insurance more content was complex, the author not one one of them laborers, please enquiry local social insurance bureau (phone around:12333). AboutThe city of Beijing2010Years of medical insurance risk capture expends wage base and scale to see lawyer Shen Binti Bo Wen:Http://blog.sina.com.cn/s/blog_51bd78fc0100meja.html
The employer fails to pay social security, the rights and interests of workers	1,If the worker found the employer fails to pay or pay less tax, have the right to request correction of the employer, and payment of pay less or nationwide social security fees for their own. (generally due to laborer vulnerable, workers offered mutual agreement is actually more difficult, but workers should know it is the law in their own right.) 2,Because the employer fails to pay social security caused by workers cannot enjoy relevant social security benefits, the employer compensation loss (such as workers cannot enjoy treatment of inductrial injury insurance or not fully enjoy. 3,Employers do not pay social security, workers have the right according to the labor contract law article38Shall terminate the labor contract, the employing units in accordance with the requirements of their work life to pay economic compensation to terminate the labor contract. Bowen according to labor contract law article thirty-eighth to terminate the labor contract notes please view the Shen Binti lawyers: instant relief legal risk labor contract note:Http://blog.sina.com.cn/s/blog_51bd78fc0100feiw.html
The employing units and laborers without consultation fruit, relief measures	Zec commercial entity refuses to pay social insurance premiums for workers, workers rights include the labor contract labor bureau, Social Security Inspection Brigade complaints report, or to the labor dispute arbitration committee appeal.

A typical case:

The workers give up for the social security statement is invalid, the employer shall pay in accordance with the law

Dongmou2008Years5Month1To a Property Management Company work, and signed a1Years of labor contract.5Month5Day, Dong a written statement to voluntarily give up the employer for the social insurance rights, its so, no social security for its during the working period, the property company will also pay social insurance premiums shall be converted into subsidies, together with wages issued to Dong mou.2009Years3Month24Day, Dongmou from property companies to the labor dispute arbitration commission, Property Management Company during its re work of social security.

The property company that is, Dongmou themselves unwilling to pay social security, the company also has the employer should bear the social insurance premiums paid in cash to the Dong, therefore, Dongmou no longer operate during the work of social security.

The Commission held that, although the Dongmou make a written statement, but according to the "labor law" provisions, participate in social insurance is laborer and unit of choose and employ persons rights, but also the obligations of the parties, is the mandatory provisions of the state. In a written statement, in violation of the mandatory provisions of the law, do not have the force of law ruling, and Property Management Company to Dongmou for social security, while the Dongmou to return the payment of the employer social insurance subsidies. (source: workers of Shandong case Time:2009-12-17)

Two typical cases:

The industrial injury insurance premium is not paid in full by the employer to bear the treatment difference

Zhang Department of Anhui Province, Ningguo City, the employees of a company,2007Years5Month22Afternoon, Zhang accidents during work. By the Legal Department identified as work-related injuries, labor ability for grade four. The same year11Month, treatment of inductrial injury insurance of Ningguo medical insurance center Zhang approved, and will be approved by the paragraph32047.66Yuan allocated to the defendant. A company deducted from the reimbursement of medical expenses for Zhang, Zhang to pay a one-time grants for the disabled, disability allowance (two months), total wages26907.52Element. Zhang said, the company did not pay industrial injury insurance premium according to the actual total wages of their own, resulting in the treatment of inductrial injury insurance is greatly reduced, then to the relevant department for reconsideration and arbitration, appeal to the people's court after the failed, zhang.

The court trial think, Zhang get injured while working for a company in the process, according to the law constitute a work-related injury and was classified as four disabled, should enjoy treatment of inductrial injury insurance. A company as the employing units shall, according to the actual total remuneration of workers as the standard to the social insurance agency to pay industrial injury insurance premium, and the insured in the units publicity. A company not these obligations, resulting in Zhang failed to fully enjoy treatment of inductrial injury insurance, a company should bear responsibility. Fill. Accordingly, the court ruling a company to pay a one-time grants for the disabled part Zhang11301.66Yuan monthly disability allowance, and take the difference470.90Retired to the end. In this case (source: China court; Author: Zhao Hongquan Xu Daofeng; time:2008Years9Month17Day10:02:36)

The legal basis:

Notify the Ministry of labor "on the establishment of matters relating to labor relations"[Labor Department (2005)12No.]

Article second The employer fails to conclude a labor contract with the worker, found the existence of labor relations can refer to the following documents: (a) documents or records of payment of wages (employee payroll roster), payment of social insurance premiums records; (two) the employer to grant workers "work permits", "service card" to prove identity documents; (three) employers of workers in the recruitment of "registration form", "application form" and other recruits records; (four) the attendance records; (five) testimony of other workers.

"Labor law"

Article seventy-second...... Employers and workers must participate in social insurance, payment of social insurance premiums.

"Byelaw of inductrial injury insurance"

Article sixtiethBy the employer in accordance with the provisions of this Ordinance shall participate in work injury insurance and did not attend, a correction by the labor and social security administrative department shall order; did not participate in the employer employee injuries occurred during the period of industrial injury insurance, by the employer in accordance with the treatment of inductrial injury insurance project of this set of regulations and pay the standard.

"The provisions of Beijing basic medical insurance"

Article fifty-eighth The employer fails to pay the basic medical insurance or large amount of mutual medical expense fund, the fund of insurance of primary medical treatment fails to delimit individual account, employees and retirees cannot enjoy relevant treatment of medical treatment insurance, the employer shall make compensation for the workers and retirees, the resulting loss.

For the

[Shen Binti] Shen Binti lawyers introduction, female, lawyers, the Beijing municipal labor and Social Security Law Committee of Beijing Lawyers Association, the all China Youth Federation Committee, Xiamen University, master of law, Beijing labor law experts. Lawyer Shen Binti is mainly engaged in the research of legal risk prevention and control law of labor disputes and labor and personnel system and practical operation, solve the focus on labor dispute cases, modify, improve and develop the employee handbook, the prohibition of business strife, confidentiality agreement and other personnel management system to provide training, labor law, labor law as special legal counsel. Practising address: Beijing city Chaoyang District headingMENFinance and Trade Center (south of the International Building quintiles)BSeat8Layer804;E-mail: shenbinti@yahoo.com.cn Business telephone (+86)13661313967 (+86) 15301115671 Interactive blog:Http://blog.sina.com.cn/shenbinti