Can social security and overtime pay due in previous years be recovered from the company?

The dynamic arbitration commission rejected the laborer's claim on the grounds of exceeding the statutory limitation. Some people think that the State Council has enacted the Labor and Social Security Law.

Article 20 of the Supervision Regulations stipulates: "Those who violate labor security laws, regulations or rules have not worked for two years.

If the administrative department of security finds that it has not been reported or complained, the administrative department of labor security will no longer check it. "There are rules here.

The limitation period is 2 years. Article 27 of the Labor Dispute Mediation and Arbitration Law, which was implemented on May 1 2008, stipulates: "Labor

The limitation period for applying for arbitration for dynamic disputes is one year. Know or should know their rights from the parties during the limitation period of arbitration.

Counting from the date of infringement. "That is to say, the time limit for arbitration of social insurance disputes is one year, which should be learned from the parties.

Or should know that social insurance premiums should be calculated from the date of default. Q: How to understand the ruling of social insurance premium?

Limitation period? How many years can social insurance premiums be recovered?

How long is the limitation of prosecution for social insurance premiums?

Although the "Labor Law" stipulates that both employers and workers have the obligation to pay social insurance premiums, for a long time, there is no specific and unified regulation on how to pay them. It was not until 1999 "Provisional Regulations on the Collection and Payment of Social Insurance Fees" was promulgated that the payment methods of pension, medical care, unemployment and other insurance items were uniformly stipulated, which led to certain differences in the participation of employers in many places.

1. What is the limitation of prosecution for social security payment? The author has the impression that many years ago, it seemed that the Shanghai Labor Bureau or the Shanghai High Court thought that the limitation of labor arbitration and how many years of social security fees were two different concepts. As long as the claim is legal and valid within 60 days of the statutory limitation at that time, all unpaid social security fees, no matter how much they are in arrears, should be paid back according to law. I can't find this solution now. However, an expert pointed out that the ruling standard for social insurance payment disputes in Shanghai is that after May 1 2008, the time limit for arbitration of social insurance payment disputes shall be implemented in accordance with Article 27 of the Labor Dispute Mediation and Arbitration Law, that is, the time limit for applying for arbitration shall be one year, counting from the date when the parties know or should know that they should owe social insurance premiums. If the labor relationship with the employer is terminated before May 1 2008, the time limit for arbitration of social security payment disputes shall be implemented in accordance with the Opinions of Shanghai Labor and Social Security Bureau on the Handling of Endowment Insurance Disputes, that is, the time limit for appeal shall be calculated from the date when the parties terminate or terminate the labor relationship at the latest, and the arbitration commission shall accept the application within 60 days. That is to say, if the labor relationship with the employer is terminated before May 1 2008, the employee can get back the social security fees paid more than 10 years ago as long as he applies for labor arbitration within 60 days. However, after May 2008 1, the limitation period for applying for arbitration is one year, so the social insurance premium of one year ago may not be recovered.

Second, it is best to complain to social security agencies about social security payment disputes. Article 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases stipulates: "The people's court shall accept the dispute arising from the employer's failure to handle social insurance procedures for the workers and the social insurance agency's failure to make up for it, resulting in their inability to enjoy social insurance benefits." Accordingly, Shandong Province, Guangdong Province and other provinces and cities clearly stipulate that social security payment disputes do not belong to the scope of acceptance by the people's courts. An arbitrator friend of the Labor Dispute Arbitration Institute in Pudong New Area told me that the labor arbitration institution can accept the dispute of unpaid, unpaid or underpaid social insurance premiums, but the Shanghai court will not accept the lawsuit against the arbitration award, and even if the application takes effect, it will not be enforced. Therefore, she suggested complaining to the social security agency. After the trial is over, the social security agency may order the employer to pay back. If the employer refuses to perform, the social security institution may apply to the court for compulsory execution.

Third, should the recovery of unpaid social insurance premiums be limited to a few years? Some experts believe that social security payment has the nature of public law, and the legal relationship of public law lies in the relationship between citizens or legal persons and state institutions. The rights and obligations of public law relations are mandatory, and the parties have no right to give up. Under the premise of public law, it is the obligation of both employers and workers to pay social insurance premiums, and it is a legal right for the labor administrative department to recover social insurance premiums from employers and workers. From this perspective, the recovery of social security contributions should be unlimited. Some experts pointed out that the compulsory nature of social insurance makes it different from the behavior of employers to perform general obligations to workers based on labor contracts. Paying social insurance premiums is the legal obligation of employers and workers, and should not be limited by the limitation of labor dispute arbitration. (For specific cases, please refer to the Analysis of Difficult Cases and Problems of Beijing High Court, Volume III).

Lawyer's statement: There is no limit for employees to ask the unit to pay social security.

In the practice of lawyers, it often happens that when employees have disputes due to the employer's failure to pay or underpay social insurance premiums during the labor relationship, employees often ask the employer to pay the social insurance premiums since the establishment of the labor relationship between the two parties, and the employer often defends on the grounds that some social insurance premiums exceed the limitation of action. Some employees even think that the statute of limitations has been exceeded and voluntarily give up some social insurance premiums.

Are there any restrictions on social insurance premiums for labor disputes? It is necessary to clarify this issue. Article 72 of the Labor Law stipulates: "Employers and laborers must participate in social insurance and pay social insurance premiums according to law." Article 12 of the Interim Regulations on the Collection and Payment of Social Insurance Fees (the State Council Decree No.259) stipulates: "Social insurance fees shall not be reduced or exempted." Article 13 stipulates: "If the payer fails to pay and withhold social insurance premiums in accordance with the regulations, the administrative department of labor security or the tax authorities shall order it to pay within a time limit; If it fails to pay within the time limit, in addition to paying the unpaid amount, a late payment fee of two thousandths will be charged daily from the date of default. " Article 26 stipulates: "If the payer refuses to pay social insurance premiums and late fees within the time limit, the administrative department of labor security or the tax authorities shall apply to the people's court for compulsory collection according to law."

It is compulsory for employees to claim that employers pay social insurance premiums for them and should not be limited by time. Advocating this right is not only the "private right" of workers, but also the "public right" of the state. In other words, even if the laborer does not claim this right, the relevant state departments should force the employer to fulfill the payment obligation. It is precisely because the issue of paying social insurance premiums involves national interests, not just between employees and employers, so it cannot be defended on the grounds of statute of limitations. For such problems, the standard mastered in judicial practice is to pursue them to the end, requiring employers to start repayment from the date of employment.

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