The company didn't pay me full social security. How can I make up for the loss?

According to Article 4 of the Regulations on the Administration of Reporting and Paying Social Insurance Fees, the employer shall report and pay to the local social security agency within the prescribed time limit on a monthly basis. In a payment year and the remaining months after the initial declaration by the employer, if the relevant declaration items change, it shall make a declaration of change.

According to the case:

Zhang is an employee of a coal chemical company. The coal chemical company paid social insurance for Zhang according to law. On February 28th, 20 15, Zhang was diagnosed as coal worker's pneumoconiosis stage II by the local occupational disease prevention and treatment hospital. Later, Zhang applied to the local human resources and social security bureau for work-related injury identification. After investigation and access to medical records, it was determined that the nature of the injury was industrial injury. In the same year, Zhang was identified as a work-related injury and the labor grade was identified as Grade 4. After the appraisal conclusion was made, the industrial injury insurance fund allocated a one-time disability subsidy of 34,562.43 yuan to Zhang. However, Zhang's average salary was 34 1 1.75 yuan two months before he was confirmed to have an occupational disease, and the coal chemical company only paid work-related injury insurance based on Zhang's average monthly salary of 20 14 years 1644 yuan, which led to Zhang's failure to receive the corresponding subsidies in full. Zhang then asked the labor dispute arbitration commission to make up a one-time disability subsidy of 37,084 yuan. The labor dispute arbitration commission decided not to accept its request on the grounds that it does not belong to the scope of labor dispute arbitration. Zhang then appealed to the court and appealed as before. After trial, the court ruled that the coal chemical company made up Zhang's one-time disability allowance and paid it monthly according to the latest salary standard.

Lawyer's analysis

The main focus of the dispute in this case is whether the compensation for work-related injury treatment can be received and who is its supplementary obligor when the unit is not fully insured.

According to the second paragraph of Article 30 of the Regulations on the Administration of Reporting and Paying Social Insurance Fees, if the employer fails to pay social insurance fees in full and on time, the social insurance agency shall, in accordance with the provisions of Article 86 of the Social Insurance Law, order it to pay within a time limit or make up for it, and a 0.5% late fee shall be charged on a daily basis from the date of default; If it fails to pay within the time limit, the administrative department of social insurance shall impose a fine of 1 times and less than 3 times. In fact, all the contents of the Administrative Regulations on the Declaration and Payment of Social Insurance Fees are aimed at clarifying the obligation of employers to pay social insurance in full. However, the full text fails to clarify the problem of how to fully compensate employees who have suffered work-related injuries when employers fail to pay or pay social insurance in full, which leads to the lack of uniform standards for various departments to deal with the corresponding problems in judicial practice. But at least one thing is certain, that is, it is a compulsory obligation imposed on every employer by the state to pay social insurance in full for workers. In this case, the coal chemical company was at fault for not paying social insurance to Zhang in full. According to the second paragraph of Article 62 of the Regulations on Work-related Injury Insurance, if the unit fails to purchase work-related injury insurance for its employees, the unit shall pay the fees according to the treatment items and standards of work-related injury insurance stipulated in these Regulations. Accordingly, when industrial injury insurance is not paid, the treatment of industrial injury insurance is paid by the employer. Then, because the employer has not paid the relevant expenses of work-related injury insurance in full, the injured workers can't get legal compensation, and of course the wrong party should make up the difference. This is not only the liability for fault compensation, but also the liability arising from failure to fulfill legal obligations. Therefore, under the above circumstances, the coal chemical company should bear the supplementary responsibility for Zhang's work-related injury treatment.

Counsel's advice

On the basis of the above cases, workers should also pay attention to the issue of social insurance payment base when there is a dispute in enterprise practice because the employer fails to pay social insurance for workers in full.

In the above analysis, it is repeatedly emphasized that the employer fails to pay social insurance in full, so how should the so-called "full amount" be understood? In other words, how can it be considered as "full amount" to pay social insurance? It's actually quite simple. Workers only need to grasp one key issue, that is, the average wage standard of 12 months before the employee's work-related injury. At the same time, the average wage shall not be lower than the minimum wage in the jurisdiction. New employees or enterprises can refer to the salary standards of employees in the same region and similar positions to declare the initial enrollment base. How to calculate the specific base can be handed over to the industrial injury insurance fund management department for accounting.

Another point that needs to be reminded to workers is that if the employer fails to pay social insurance to the workers or has a labor dispute with the employer because of the insurance base, it does not belong to the scope of accepting cases by the labor dispute arbitration commission. 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 that the people's court shall accept a dispute arising from the employer's failure to handle the social insurance formalities for the workers and the social insurance agency's inability to make up for it. Accordingly, if a worker has a dispute with the employer on social insurance-related benefits due to work-related injuries or other circumstances, he can directly apply for arbitration and ask the employer to pay the worker himself or his close relatives the work-related injury insurance benefits in full according to law. Otherwise, if there is a dispute between the employer and the insurance base, you can only complain to the labor inspection brigade of the human resources and social security department.

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