Does the employer have the right to withhold pension insurance if an employee violates the company's rules?

If you are an employee of a foreign company

Go to Beijing Foreign Enterprise Service Corporation to go through formal employment procedures

When you get the employment letter from a multinational company, you are not Legal form of "foreign enterprise employee", because according to relevant laws and regulations, to establish a labor employment relationship between a foreign company's Beijing office and Chinese employees, formal employment must be handled through relevant legal talent intermediaries such as Beijing Foreign Enterprise Service Corporation procedures and apply for legal documents. You should go to the above-mentioned institution with your company introduction letter to go through registration, registration, physical examination, certificate collection and other procedures. At the same time, you should sign a relevant contract or agreement with the institution to establish a legal employment relationship. From then on, you will become an employee of a foreign company. Legally, In other words, you are a legal employee of the talent agency; in fact, because you are sent to work at the representative office of a foreign company in Beijing through the above-mentioned agency, you are also a de facto employee of the foreign business agency.

Foreign companies should abide by China’s labor laws

Since foreign companies come to China, they should act in accordance with Chinese laws and regulations. In terms of labor and employment, my country's Labor Law and the Labor Management Regulations for Foreign-Invested Enterprises formulated by the Ministry of Labor and the Ministry of Foreign Economic Trade and Cooperation should be followed.

When a foreign company violates relevant Chinese laws and infringes upon your legitimate rights and interests, you should report it to the relevant departments or hire a lawyer to resolve the problem and obtain compensation through arbitration and litigation.

The practice of "resigning within one hour" is illegal

There are currently many labor disputes between foreign companies and Chinese employees, a large part of which is due to the large-scale economic development of foreign companies. Caused by sexual layoffs.

When foreign companies encounter serious difficulties in their business operations, it is understandable that they use economic layoffs to relieve economic pressure, but firing employees must comply with Chinese laws. Some foreign companies use methods such as "resign within one hour." Using such words to force Chinese employees to resign seriously violates my country's labor laws and hurts the feelings of Chinese employees.

For economic layoffs, in accordance with the Labor Law, the Regulations on Economic Layoffs of Enterprises and the Labor Management Regulations on Foreign-Invested Enterprises, enterprises carrying out economic layoffs must notify the laid-off personnel in writing 30 days in advance. ; According to the provisions of the "Economic Compensation Measures for Violation and Termination of Labor Contracts", after consultation with employees, the employer shall issue an economic compensation equivalent to one month for every full year based on the employee's working years in the unit, but No more than twelve months. Those who have worked for less than one year will receive financial compensation based on one year's standard. Regulations stipulate minimum compensation standards, and companies must refer to the labor contract signed with the employer and other factors to make compensation higher than the minimum standard.

If you are a migrant worker

Enjoy equal rights

According to the provisions of the "Labor Law of the People's Republic of China", workers must They have the right to equal employment and choice of occupation, the right to receive labor remuneration, the right to rest and vacation, the right to obtain labor safety and health protection, the right to receive vocational and possible training, the right to enjoy social insurance and welfare, and the right to submit labor disputes for settlement rights and other labor rights stipulated by law.

The right to participate in and organize trade unions in accordance with the law; to participate in democratic management through workers’ conferences, workers’ congresses or other forms in accordance with the law or to negotiate on an equal footing with employers to protect the legitimate rights and interests of workers; to violate the law They have the right to obtain economic compensation for losses caused by administrative regulations and labor contracts; they have the right to refuse the employer's illegal instructions and forced risky operations; they have the right to criticize, report and accuse behaviors that endanger life safety; and they have the right to handle labor disputes in accordance with the law. and the right to litigate.

As an ordinary worker, the employer must protect these rights that you enjoy. Any violation of your rights on the grounds that you are a migrant worker should be punished by law.

Body searches are illegal

The case of 56 female workers at a Korean-owned factory in Kengzi Town, Longgang District, which attracted widespread attention and was illegally searched, ended with an out-of-court settlement between the two parties. The defendant, the factory, compensated each female worker RMB 4,000 and expressed apology. The plaintiff withdrew the lawsuit from the court.

It often happens that migrant workers are searched by their employers. Body searches are a blatant violation of workers' rights, my country's Constitution and labor laws, and are serious violations. If this happens to you, please take legal action.

These agencies can help you

If the employer fails to perform the labor contract and your legitimate rights and interests are harmed, you'd better first go to the enterprise labor dispute mediation committee to apply for mediation and strive for Negotiate with the enterprise to resolve the matter. If a labor dispute occurs, you can seek legal consultation from a professional labor law lawyer to seek opinions and solutions, or you can apply for arbitration.

At present, 13 provincial and autonomous region labor departments have set up specialized agencies in Beijing to manage migrant workers from their provinces; there are 6 provincial (municipal) people's government offices in Beijing under the supervision of various provinces (municipalities). ) was entrusted by the Department of Labor to carry out the management of migrant workers from this province (city) in Beijing. Therefore, when you encounter problems and difficulties related to labor and employment in Beijing, you can ask them for help.

If you are an hourly employee

The employment method, which uses hours as the unit of working time, is currently rapidly gaining popularity in fast food, supermarkets and other industries in Beijing. Compared with full-time employment, part-time employment is more convenient and flexible, which not only helps enterprises reduce labor costs, but also helps workers freely choose their working hours.

At present, Beijing’s laws are still blank regarding hourly workers. Therefore, in order to protect your legitimate rights and interests, it is best to sign a detailed labor contract with the employer, setting out the working hours, wages and remuneration. Detailed issues such as payment methods, rewards and punishment methods should be agreed upon in detail, so that if any disputes arise in the future, there will be well-documented records.

If you are a female employee of childbearing age

The "non-pregnancy agreement" is invalid

It has become an unwritten rule for some companies to require female employees not to become pregnant within a certain period of time . It is understood that many employers now often have many conditions attached when recruiting female employees. Some companies even stipulate that when recruiting female employees, they must not become pregnant within 10 years. The reason is that leaving the job to have children and raising children affects the continuity of the company's work and increases the number of employees. unit cost expenditure.

In order to prevent unfounded claims, the company also requires female employees to sign a "non-pregnancy agreement." Many job seekers have no choice but to sign such an "agreement" because they are eager to find a job.

In fact, this "non-pregnancy agreement" is legally invalid. Although enterprises have autonomy in employment, they must do so in compliance with the law. Employers have no right to dismiss female employees or unilaterally terminate the labor contract on the grounds of marriage, pregnancy, maternity leave, breastfeeding, etc.

If the employer requires you to sign such an agreement, you'd better report it to the labor and social security department first to protect your legitimate rights and interests to the maximum extent. If you become pregnant or want to become pregnant after signing such an agreement, you can hire a lawyer to seek compensation for your separation from the job through litigation or arbitration.

It is your right to require the company to pay for maternity insurance for you

According to the provisions of the Ministry of Labor's Document No. 504 [1994], the company owes or refuses to pay employee maternity allowances and maternity insurance. For medical expenses, the labor administrative department shall order the enterprise to pay within a time limit; if any damage is caused to employees, the enterprise shall bear liability for compensation. At the same time, employees can also appeal to the local labor arbitration committee on the grounds of social insurance disputes and request repayment and compensation in accordance with the provisions of the Labor Law.

The time limit for appeals can be handled according to specific circumstances: if employees report to the labor administration department, the labor administration department shall follow the Ministry of Labor's "Trial Measures for Maternity Insurance for Enterprise Employees" (Ministry of Labor [1994] 504) Thirteenth The article orders the company to pay within a time limit. The period from when an employee reports to the labor administrative department to the expiration of the "limited time limit for payment" of the labor administrative department can be regarded as the suspension of the statute of limitations for appeals. The statute of limitations for appeals is calculated based on the combined calculation before the employee reports to the labor administrative department and after the expiration of the "limited time limit". If the employee fails to report or appeal to the labor administration department, the payment will be calculated from the date the enterprise refuses to pay. During the specific trial, the enterprise may be ordered to pay maternity insurance fees in accordance with relevant regulations. Depending on the degree of damage caused by the enterprise to its employees, the enterprise shall be ordered to bear compensation liability in accordance with relevant regulations.

During the pregnancy, childbirth, and lactation periods, companies are not allowed to fire you at will

The "Beijing Labor Contract Regulations" stipulates eight types of workers who cannot be fired at will, including This includes female employees during pregnancy, childbirth and lactation periods.

If you are a work-study college student

According to the relevant regulations of the Ministry of Labor, working-study students in their spare time are not considered employment and are not subject to the Labor Law. They do not need to Sign a labor contract; if a student is injured or killed during a work-study period, it cannot be classified as a work-related injury according to regulations.

Students are reminded that they should sign an agreement with the employer on a voluntary, fair, equal and paid basis. Under the condition that there is an agreement, if a dispute over remuneration or an injury or death occurs and the negotiation fails, the person can sue in court in accordance with the Civil Procedure Law, or request execution in accordance with the relevant provisions of civil injury compensation.

If you are an employee of a private enterprise

You should also enjoy insurance benefits

According to the Ministry of Labor, the Ministry of Public Security, and the All-China Federation of Trade Unions' "On Strengthening the Strengthening of Foreign-Invested Enterprises" "Notice on Labor Management of Private Enterprises to Effectively Protect the Legitimate Rights and Interests of Employees" Enterprises must pay pension insurance and unemployment insurance to relevant departments for their employees. Enterprises that ignore national laws and regulations and refuse to pay pension insurance and unemployment insurance will be punished by law.

The company has no right to collect a security deposit from you

The company charges low-risk deposits from employees without authorization, and stipulates that employees terminate their labor contracts without authorization. The company has the right to withhold low-risk deposits, which violates labor laws. According to the provisions of the law, if you have such an agreement with the company, it shall be invalid.

If you are injured at work or suffer from an occupational disease

The "life and death contract" is illegal

As early as 1988, the Supreme People's Court issued (88) Mintazi No. 1 Reply, in response to a lawsuit caused by a private enterprise employer in Tianjin who stated "not responsible for work-related injuries" in the recruitment registration form and an accident occurred, pointed out: "This behavior is neither in compliance with the Constitution nor relevant legal provisions. "It also seriously violates socialist public ethics and should be considered an invalid civil act." On October 7, 1992, the Ministry of Labor issued Reply No. 27 [1992] in response to problems of the same nature that occurred in the internal contracting of a state-owned water transportation enterprise. The letter pointed out that the clause in the contract that "the individual is responsible for disability" is not legal. However, this kind of invalid "life and death contract" that has long been declared illegal still occurs frequently, which shows that some employers or corporate legal persons never understand the law and end up violating the law. This is a bad phenomenon that blatantly infringes on the legitimate rights and interests of employees and must be seriously corrected.

There are clear laws to protect your rights

In 1996, the Ministry of Labor issued the "Trial Measures for Work-related Injury Insurance for Enterprise Employees" and in the same year the State Bureau of Technical Supervision promulgated the "Work-related Injury and Disability due to Occupational Diseases for Employees" "Extent Assessment", providing adequate protection to personnel injured on the job and patients with occupational diseases. Accordingly, the employer shall, in accordance with relevant national regulations, arrange for patients with occupational diseases to undergo treatment, rehabilitation and regular inspections; patients with occupational diseases who are not suitable to continue working shall be transferred from their posts and properly placed; workers engaged in operations exposed to occupational disease hazards shall be Those who do so should be given appropriate job allowances.

You can get the following benefits from society and enterprises

1) Work-related injury medical benefits

2) Work-related injury allowances

3) Disability pension benefits

4) Nursing fee benefits

5) Disability assistive device fees

6) Relocation subsidy

7) One-time disability benefit

8) Funeral benefit

9) Dependent relative pension

10) One-time death benefit< /p>

If you are laid off and unemployed

You should enjoy unemployment insurance

Unemployment insurance is a social security system enforced by the state through legislation. It is mandatory and It has the characteristics of mutual aid, sociality and assistance, and has the dual functions of ensuring life and promoting employment. In addition, it also has the function of suppressing and preventing unemployment.

Article 16 of the "Regulations on Unemployment Insurance" (State Council Order No. 258) stipulates that urban enterprises and institutions should promptly issue certificates of termination or dissolution of labor relations to unemployed persons and inform them that they can enjoy unemployment insurance in accordance with regulations. The right to treatment, and the list of unemployed persons shall be filed with the social insurance agency within 7 days from the date of termination or dissolution of the labor relationship.

Please pay attention to the illegal behavior of enterprises in layoffs

There are many cases of illegal layoffs and infringement of employees' rights by enterprises. Some blatantly trample on labor laws, and some take advantage of workers' vulnerable status. Circumvention of labor laws. Specific examples include:

1. The company notifies an employee or certain employees without any indication that "you will not come to work tomorrow", completely ignoring the relevant provisions of the labor law.

2. Before the laid-off employees left, they asked the company to repay back wages and pay compensation for terminating the labor contract, but the boss of the company spread his hands and said, "Sorry, no money."

3. Companies take advantage of employees' weak awareness of labor laws and set traps to induce employees to resign, so that they do not receive any financial compensation before leaving.

4. What’s more, some companies actually use “not being able to do the job” or trivial matters like being late two or three times as excuses to incriminate their employees without any excuses. Guilty" and drive them away.

The above practices are against labor laws. If a company uses these methods to make you unemployed, you can use legal tools to defend your rights. It is recommended that you consult a professional lawyer and file a lawsuit or arbitration. Methods to ask for compensation from the company.

If you are planning to change jobs

Go to work after the 30th at the latest

"I will go to work after the 30th at the latest. During this period, I will resign and hand over the work as soon as possible. However, if the original employer agrees, I will try to complete the formalities and come to work in the new company as soon as possible. "When the new company asks you when you can come to work, you should answer like this.

Because our country’s labor law stipulates: If you want to terminate the contract with the original company, you should notify the company in writing 30 days in advance. After 30 days, the employee can apply to the company to terminate the labor contract, and the employer The unit will handle it; if you illegally terminate the labor contract and cause economic losses to the company, you should be liable for compensation.

This means that in the worst case scenario, you can start working at a new company 30 days after resigning. You should notify your original employer to terminate the labor contract or terminate the labor relationship as soon as possible. If the original employer agrees, you can of course do it in advance. However, if the labor contract with the original employer has not expired, you should try your best to negotiate with the original employer to resolve the issue and respond accordingly if necessary. Compensate for losses; if you go to work at a new company without ending the labor relationship with your original employer, you will have violated the law, and the new company will also bear joint and several liability.

The original unit should not retain your files

According to the Ministry of Labor's "Regulations on the Management of Enterprise Employee Files", no matter how workers leave the company, the company should promptly It is wrong for companies to retain employees' personal (personnel) files by transferring their personal files. In reality, companies often use the excuses of employees not paying training fees, not returning housing, not paying liquidated damages when leaving the company, etc. to withhold employee files and not go through relevant procedures. According to regulations, companies have no right to retain the files of employees who have resigned for any reason. Even if employees leave because they refuse to assume liability for breach of contract or compensate the company for losses, the correct approach for the company should be to restore their legitimate rights and interests through legal remedies such as labor dispute arbitration, rather than withholding their personal files. The enterprise's behavior of withholding employee files affects workers' rights to re-employment and unemployment insurance benefits, and is an infringement of employees' rights.

If you have not signed a labor contract with the employer

The Labor Law clearly requires that "a labor contract must be signed to establish a labor relationship" and "a labor contract must be signed in writing." However, in practice, there are still many companies that do not sign written contracts when establishing labor relations with their employees. This situation is generally called a "de facto labor relationship."

The former Ministry of Labor's "Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China" (Ministry of Labor [1995] No. 309) stipulates that: labor disputes arise between employers and workers Regardless of whether a labor contract is signed or not, as long as there is a factual labor relationship and it complies with the scope of the "Regulations on the Handling of Enterprise Labor Disputes" (State Council Order No. 117), the Labor Dispute Arbitration Committee should accept the case.

The "Reply Letter on the Acceptance of Labor Disputes" (Laobanfa [1994] No. 96) of the former General Office of the Ministry of Labor stipulates that when handling such disputes, both parties should first be urged to sign and renew in accordance with the law. Enter into or terminate a labor contract. At the same time, it is necessary to clarify the responsibilities of both parties in the process of forming a de facto labor relationship based on the specific circumstances. On this basis, the labor dispute arbitration committee can properly handle the matter according to the labor contract signed, the specific circumstances of the dispute, and the degree of responsibility for forming a de facto labor relationship.

If you are a fresh graduate

The labor contract must be signed

Currently many business units, including some large state-owned enterprises in Beijing, accept graduates with Graduates sign a "Graduate Service Period Agreement" to replace the "Labor Contract", based on the provisions of Article 14 of the "Reform Plan for the Allocation System for College Graduates" promulgated by the Ministry of Education on March 2, 1989.

The "Agreement" has too many obligations and too few rights for graduates. The employer's purpose is obvious, which is to restrict the resignation of graduates.

In 1995, our country promulgated and implemented the "Labor Law", which stipulated that my country implements a labor contract system. The labor relationship between enterprises and employees should be adjusted by the "Labor Law" and the labor contract. The "Plan" itself issued by the Ministry of Education The legal effect is very low. The practice of restricting the rights of graduates by signing only the "Agreement" but not the "Labor Contract" is an avoidance of labor laws.

Therefore, whether you sign a "Graduate Service Period Agreement" or a "Labor Contract" with the employer, your rights and obligations stipulated in it should be equal.

The "resettlement fee for non-local students in Beijing" and "household registration" terms are unreasonable

Some employers in Beijing, including some national administrative agencies and public institutions, in order to ensure that graduates stay in their units for a long time It is also stipulated in the "Graduate Service Period Agreement" or "Labor Contract" that graduates who terminate the labor contract in advance need to compensate "resettlement fees for foreign students moving to Beijing". Some even stipulate that the employer has the right to transfer the graduates' household registration. Return to the graduate’s place of origin or the location of the school.

The transfer of household registration should not be agreed between the employer and the graduate through the "Graduate Service Period Agreement" or "Labor Contract". In fact, the Beijing Municipal Public Security Department has Requests to transfer employees' household registration back to their place of origin will not be accepted, and there is no precedent for employees to transfer their household registration back to their place of origin; therefore, graduates should be careful when signing the "Graduate Service Period Agreement" or "Labor Contract" There should be "resettlement fees for non-local students coming to Beijing" and "household registration" provisions.

Extended reading: How to buy insurance, which one is better, and step-by-step instructions to avoid these "pitfalls" of insurance