The company did not pay social security in full.

According to the third paragraph of Article 38 of the Labor Contract Law, if the employer fails to pay social insurance premiums for the employee according to law, the employee may terminate the labor contract and request the employer to pay economic compensation according to Article 46. If both parties have an agreement on the service period, the employer shall not require the laborer to pay liquidated damages.

However, in practice, the practices of this regulation vary from place to place. For example, in Beijing, if the employer fails to apply for social security for the employee or fails to apply for insurance as required, the employee may terminate the contract according to Article 38 of the Labor Contract Law and demand to pay economic compensation; However, as long as the employer has handled all kinds of insurance for the workers according to law, even if there is a difference in the payment base, the workers have the right to ask for supplementary payment, but they may not terminate the labor contract and ask for economic compensation according to Article 38 of the Labor Contract Law. According to Article 3 1 of the Summary of the Seminar of Beijing Higher People's Court of Beijing Municipal Bureau of Labor and Social Security on the Legal Application of Labor Dispute Cases (the full text of the Summary), "After the implementation of the Labor Contract Law, if the employer fails to establish a social insurance relationship for the workers according to the types of insurance stipulated by this Municipality, and the workers request to terminate the labor contract and ask the employer to pay economic compensation, it should be supported, but the payment period of economic compensation should start from 2008. If the laborer requests to terminate the labor contract and asks the employer to pay economic compensation on the grounds that the employer has not paid the social insurance premium in full or owed it, it will not be supported. "

If the employer does not pay social security according to law, it may refer to the following ways to safeguard rights:

1, if it is not paid or not paid according to my salary, you can ask the employer to repay it; Or go to the social security inspection department of the labor bureau to complain and report, and it will order the employer to pay back (in this case, the employer will generally be punished with an administrative fine). There is no time limit for social security payment in laws and regulations, but in Beijing practice, the time limit for reporting the difference in the base of payment is announced every year. If the time limit is exceeded, the payment within the corresponding time limit may not be processed. Therefore, Mr. Zeng would like to remind all workers that once they find that the unit has not paid social security in full, they should protect their rights in time to avoid unnecessary losses to themselves.

2. If the employer fails to go through the social security formalities for the workers, and the social security agency fails to make up for it, resulting in the workers unable to enjoy the social security benefits, it may require the employer to compensate for the losses (for example, if the workers in agricultural registered permanent residence are unable to go through the social security payment formalities in Beijing and the employer fails to go through the social security formalities, it may require the employer to pay the cash compensation directly. Or fails to apply for work-related injury insurance, which leads to the inability to enjoy work-related injury insurance benefits, the employer shall pay losses to the workers in accordance with the standards of work-related injury insurance benefits. )

3. If the employer fails to handle the social security formalities or insurance for the employee according to the provisions of this Municipality, the employee has the right to terminate the labor contract and ask the employer to pay economic compensation.

Unilateral termination of the labor contract involves risk payment. Therefore, if it is really necessary to protect rights by paying the economic compensation for the termination of the labor contract, it is recommended to consult a professional lawyer in advance and do so under the guidance of a professional lawyer.

Lawyer Zeng interprets the third paragraph of Article 38 of the Labor Contract Law and thinks that it clearly stipulates that as long as the employer fails to pay social security according to law, the employee can unilaterally terminate the labor contract and demand to pay economic compensation. According to China's regulations, there are specific provisions for social security payment such as pension, medical care, work injury, unemployment and maternity. If the employer fails to pay social security in full in accordance with relevant regulations, it shall be an illegal situation of "failing to pay social security according to law". Therefore, whether it is based on "unpaid" or "insufficient payment", the labor contract can be unilaterally terminated and the employer can be required to pay economic compensation. However, the Minutes of the Meeting interprets the provisions of Article 38 as that only those who fail to pay or pay according to the provisions of Beijing can terminate the contract according to this article, which actually limits the application of this law. This restriction undoubtedly brings more difficulties to the rights protection of workers, and also provides a more sufficient basis for employers to violate the law. In addition, the minutes of the meeting are not legislative interpretations or even judicial interpretations. Therefore, Mr. Zeng believes that the legitimate rights of workers should not be restricted by such a document.

Further reading: How to buy insurance, which is good, and teach you how to avoid these "pits" of insurance.