Is it legal for the company not to pay social security according to the actual salary? If you resign for one reason, can you claim compensation from the company?

If the lower limit of the local social security payment base is higher than the salary, it is legal for the employer not to pay according to the actual salary, otherwise it is illegal, and the labor contract can be terminated according to law and economic compensation can be obtained according to law.

Legal analysis

First of all, if the lower limit of the local social security payment base is higher than the salary, it is illegal for the company not to pay social insurance according to the actual salary. The determination of social insurance base is strictly based on the average salary of employees in the previous year, so it is clearly stipulated by law. The base number that the employer should pay cannot be changed at will. According to China's laws and regulations, if the employer violates the Social Insurance Law and other laws and regulations, conceals or omits the social insurance premium base, or fails to pay social insurance according to the actual salary, which seriously infringes on the legitimate rights and interests of workers, workers can report to the local social security department or labor security agency. Secondly, according to China's Labor Contract Law, if the employer fails to pay social insurance for the workers according to law, or the rules and regulations of the employer violate laws and regulations, which damages the rights and interests of the workers, or the employer fails to provide labor protection as agreed in the labor contract, the workers can terminate the labor contract according to law and get economic compensation according to law. The employer fails to pay social insurance in full according to law, which has violated the first paragraph of Article 38 of the Labor Contract Law. In essence, it does not provide labor protection for workers, so workers have the right to terminate labor contracts and obtain economic compensation.

legal ground

Article 27 of the Regulations on Labor Security Supervision

When the employer declares the amount of social insurance premiums that should be paid to the social insurance agency, it conceals the total wages or the number of employees, and the administrative department of labor security shall order it to make corrections and impose a fine of not less than 0 times but not more than 3 times the total wages.

Defrauding social insurance benefits or defrauding social insurance fund expenditures, the administrative department of labor security shall order it to be returned, and impose a fine of not less than 0 times but not more than 3 times the amount defrauded; If a crime is constituted, criminal responsibility shall be investigated according to law.

Article 38 of the Labor Contract Law of People's Republic of China (PRC) * * In any of the following circumstances, the employee may terminate the labor contract:

(1) Failing to provide labor protection or working conditions as agreed in the labor contract;

(2) Failing to pay labor remuneration in full and on time;

(3) Failing to pay social insurance premiums for laborers according to law;

(4) The rules and regulations of the employing unit violate the provisions of laws and regulations and damage the rights and interests of workers;

(5) The labor contract is invalid due to the circumstances specified in the first paragraph of Article 26 of this Law;

(6) Other circumstances under which the laborer can terminate the labor contract as stipulated by laws and administrative regulations.

If the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or if the employer illegally directs or forces the risky operation to endanger the personal safety of the laborer, the laborer may immediately terminate the labor contract without notifying the employer in advance.