Job Recruitment Website - Social security inquiry - What legal risks may exist when an employer entrusts a third party to pay social security?
What legal risks may exist when an employer entrusts a third party to pay social security?
1. The employer has signed a labor contract with the employee, but arranged for a third party to pay social security for the employee: 1. Laborers can complain to the social insurance fee collection agency, and after the social insurance fee collection agency finds out, it can order the employer to pay within a time limit, and impose a 0.5% late fee on a daily basis. If the payment is not made within the time limit, a fine of more than 3 times the unpaid amount/kloc-0 will be imposed. Relevant regulations: Social Insurance Law (revised on 20 18) Article 58 An employer shall register social insurance for its employees within 30 days from the date of employment. If the social insurance has not been registered, the social insurance agency shall verify the social insurance premium it should pay. Employees-free individual industrial and commercial households who voluntarily participate in social insurance, part-time employees who do not participate in social insurance in the employing unit and other flexible employees shall apply to the social insurance agency for social insurance registration. The state establishes a national unified personal social security number. Personal social security number is a citizen's identity number. Article 86 If an employer fails to pay social insurance premiums in full and on time, the social insurance premium collection agency shall order it to pay within a time limit or make up for it, and from the date of default, an overdue fine of 5/10000 shall be added daily; Failing to pay within the time limit, the relevant administrative departments shall impose a fine of more than one time and less than three times the amount owed. 2. Laborers may, according to Articles 38 and 46 of the Labor Contract Law, forcibly terminate the labor contract on the grounds that the employer fails to pay social insurance premiums according to law, and demand to pay economic compensation for the compulsory termination of the labor contract. Relevant provisions: Labor Contract Law (revised on 20 12) Article 38 The employee may terminate the labor contract in any of the following circumstances: (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. Article 46 Under any of the following circumstances, the employer shall pay economic compensation to the employee: (1) The employee terminates the labor contract in accordance with the provisions of Article 38 of this Law; (2) The employing unit proposes to terminate the labor contract with the laborer in accordance with the provisions of Article 36 of this Law, and the labor contract is terminated through consultation with the laborer; (3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law; (4) The employer terminates the labor contract in accordance with the provisions of the first paragraph of Article 41 of this Law; (5) Terminating a fixed-term labor contract in accordance with the provisions of the first paragraph of Article 44 of this Law, except that the employer maintains or improves the conditions stipulated in the labor contract to renew the labor contract and the employee does not agree to renew it; (6) The labor contract is terminated in accordance with the provisions of Item 4 and Item 5 of Article 44 of this Law; (seven) other circumstances stipulated by laws and administrative regulations. 2. Employers recruit workers, but arrange for a third party to sign labor contracts and pay social security instead of signing written labor contracts. As China does not oppose "dual labor relations", the employer may face legal risks related to "not signing a written labor contract", as follows: 1 If the employer has a "factual labor relationship" with the employee, but fails to sign a written labor contract with the employee according to law, it has the right to require the employer to pay "double wages" every month from the second month of the employee's employment to 12. (Note: In judicial practice, because the laborer has already got 1 times the salary, what the laborer can appeal for is "double the salary difference". Relevant regulations: Article 82 of the Labor Contract Law (revised on 20 12) If the employer fails to conclude a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly salary. Where an employing unit violates the provisions of this Law and fails to conclude an open-ended labor contract with the laborer, it shall pay the laborer twice the salary every month from the date when the open-ended labor contract should be concluded. 2. If the employer and the employee have a "factual labor relationship" and have not signed a written labor contract for more than 1 year, it is legally recognized that both parties have signed an "open-ended labor contract". Relevant Provisions Article 14 of the Labor Contract Law (revised on 20 12) An open-ended labor contract refers to a labor contract in which the employer and the employee agree that there is no fixed termination time. The employer and the employee may conclude an open-ended labor contract through consultation. Under any of the following circumstances, if the employee proposes or agrees to renew or conclude a labor contract, an open-ended labor contract shall be concluded in addition to the employee's proposal to conclude a fixed-term labor contract: (1) The employee has worked in the employer continuously for ten years; (2) When the employing unit implements the labor contract system for the first time or the state-owned enterprise is restructured and re-concludes the labor contract, the employee has worked in the employing unit continuously for ten years and is less than ten years away from the statutory retirement age; (3) Two fixed-term labor contracts have been concluded in succession, and the employee does not have the circumstances stipulated in Items 1 and 2 of Article 39 and Article 40 of this Law, and the labor contract is renewed. If the employer fails to conclude a written labor contract with the employee within one year from the date of employment, it shall be deemed that the employer has concluded an open-ended labor contract with the employee. Three. If a worker suffers a work-related injury, paying social security by a third party may cause the employer to bear more responsibility for work-related injury insurance: 1. If the third party does not cooperate with the work-related injury application, or the application materials are not recognized by the social security management department, or even rejected directly, the employee may ask the employer to bear all the work-related injury insurance benefits-that is, if the employer pays social security for the individual employee, the work-related injury insurance benefits can be paid by the work-related injury insurance fund. However, in the case that the employer entrusts a third party to pay, once the social security department refuses to pay compensation, all the work-related injury insurance benefits will be borne by the employer at this time, which is not a decimal. Relevant regulations: Article 41 of the Social Insurance Law If the employer where the laborer works fails to pay the work-related injury insurance premium according to law, the employer shall pay the work-related injury insurance benefits in case of an accident. If the employer does not pay, it shall pay in advance from the industrial injury insurance fund. The industrial injury insurance benefits paid in advance from the industrial injury insurance fund shall be repaid by the employer. If the employer fails to repay, the social insurance agency may recover the compensation in accordance with the provisions of Article 63 of this Law. Related cases: the civil judgment of second instance of Wuhan Intermediate People's Court, case number (20 18) E 0 1 No.3245: Our court not only confirmed the facts ascertained by the court of first instance, but also found that 1 and Q had applied for work-related injury insurance benefits to the social security agency where the social security remitting unit (company Y) was located, and the agency refused. 2.20 15 years The average wage of Wuhan employees is 65,720 yuan/year. We believe that Article 57 of the Social Insurance Law of People's Republic of China (PRC) stipulates: "The employing unit shall, within 30 days from the date of its establishment, apply to the local social insurance agency for social insurance registration with its business license, registration certificate or unit seal. The social insurance agency shall review and issue the social insurance registration certificate within 15 days from the date of receiving the application. " Article 58 stipulates: "The employing unit shall register social insurance for its employees within 30 days from the date of employment. If the social insurance registration is not handled, the social insurance agency shall verify the social insurance premium that it should pay. " According to the above regulations, it is the legal obligation of the employer to pay social insurance for employees. The employing unit shall register social insurance with the local social insurance agency, and pay social insurance for employees to the local social insurance agency. Social insurance registration shall be managed in a territorial manner, and the account opening and payment unit shall be the "employing unit", that is, the employing unit that establishes labor relations with workers. It is illegal for an employer to entrust a third party to pay social insurance for employees. Generally speaking, the prerequisite for workers to enjoy social insurance benefits should be the existence of labor relations with the insured units. However, in the case of social insurance payment, there are inconsistencies between the location of the employer and the place of social insurance payment, and between the subject of social insurance payment and the actual work unit. Payment is to pay social security for employees directly in the name of the social security payment company, not as an agent, but as an alternative. Due to the personal nature of social security, although remittance companies pay social security fees instead of employers, they cannot apply for work-related injury treatment for workers instead of employers. On the account name, it shows that the employer has not paid work-related injury insurance for employees. According to Article 41 of the Social Insurance Law of People's Republic of China (PRC), "If the employer where the employee works fails to pay the work-related injury insurance premium according to law, the employer shall pay the work-related injury insurance benefits", so the employer shall bear the rights due to the employee. As far as this case is concerned, Company G entrusted Company Y to pay work-related injury insurance for its employee Q, but the social security agency where the social security remitting unit (Company Y) is located failed to pay work-related injury insurance benefits to Q, and the loss of work-related injury insurance benefits enjoyed by Q was borne by Company G, the employer. Therefore, Company G should pay Q a one-time disability subsidy of 36,000 yuan (4,000 yuan/month ×9 months); One-time Medicaid 438 16 yuan (65720 yuan/year? 12 months ×8 months), but q only advocates 4 1244 yuan, and the excess is regarded as Q's automatic waiver; One-time disability employment subsidy is 65,724 yuan (65,720 yuan/year? 12 months × 12 months). 2. Assume that the work-related injury identification materials declared by the third party have been recognized by the social security management department, and the workers have obtained work-related injury claims from the work-related injury insurance fund. However, in the case of employee disability, if the employee chooses to terminate the labor relationship with the employer, in some cases, the third party will also pay the employee a "one-time disability employment subsidy", and then the third party may have a dispute with the employer. Taking Guangdong as an example, according to Articles 31 and 32 of the Regulations on Industrial Injury Insurance in Guangdong Province (revised on 20 19), if a disabled employee of grade 5- 10 proposes to terminate or terminate the labor relationship with the employer, the employer needs to pay a "one-time disability employment subsidy". The standards are as follows: level 5 disability: fifty months' salary; Grade 6 disability: forty months' salary; Grade 7 disability: twenty-five months' salary; Grade 8 disability: fifteen months' salary; Grade 9 disability: eight months' salary; Grade 10 disability: four months' salary. Relevant regulations: Article 31 of the Regulations on Industrial Injury Insurance in Guangdong Province (revised on 20 19) If a disabled worker of Grade 5 or 6 proposes to terminate or terminate the labor relationship with the employer, the industrial injury insurance fund will pay a one-time work-related injury medical subsidy, and the employer will pay a one-time disability employment subsidy to terminate the work-related injury insurance relationship: (1) One-time work-related injury medical subsidy. The standard is: five-level disability is my salary for ten months, and six-level disability is my salary for eight months. (two) a one-time disability employment subsidy. The standard is: level 5 disability is my 50-month salary and level 6 disability is my 40-month salary. Thirty-second employees who are disabled at work and are identified as seven to ten levels of disability shall be paid a one-time disability subsidy by the industrial injury insurance fund. The standard is: 13 months salary for level 7 disability, 1 1 month salary for level 8 disability, 9 months salary for level 9 disability and 7 months salary for level 10 disability. If the labor and employment contracts of disabled employees with grades seven to ten are terminated or the labor relationship with the employer is terminated according to law, in addition to enjoying the basic old-age insurance benefits or death, the industrial injury insurance fund will pay the one-time medical subsidy for work-related injuries, and the employer will pay the one-time disability employment subsidy to terminate the industrial injury insurance relationship. The subsidy standards are as follows: (1) One-time medical subsidy for work-related injuries: six months' salary for level 7 disability, four months' salary for level 8 disability, two months' salary for level 9 disability and one month's salary for level 10 disability. (2) One-time employment subsidy for disability: level 7 disability is my salary of 25 months, level 8 disability is my salary of 15 months, level 9 disability is my salary of 8 months, and level 10 disability is my salary of 4 months.
- Previous article:How much does Fengcheng social security pay a year?
- Next article:Social security payment base of flexible employees in Shangyu in 2022
- Related articles
- 20 10 in Tianjin, what are the specific amounts of insurance, medical insurance and endowment insurance? Who can explain it in detail?
- How to inquire about social security years?
- Where can I find a medical insurance card in Xiamen Lake?
- How long can I enjoy maternity leave after paying social security?
- Can social security be transferred?
- How many years should Zigong urban workers pay medical insurance before they can enjoy medical insurance benefits after retirement?
- How about Chengde Yilian Labor Dispatching Co., Ltd.
- Jinan social security enterprises to open an account
- Wenzhou social security card
- What are the insurance, social security and medical insurance for flexible employees in Bozhou District of Zunyi City?