What should I do if the unit fails to pay the endowment insurance in accordance with the regulations for more than two years?

The employing unit shall pay social security for the workers according to law. If the employer violates the contract, whether it exceeds the 2-year period or not, the laborer has the right to demand payment.

According to China's "Labor Law", "Social Insurance Law" and other laws, the employer should pay social security for the workers, which is the statutory obligation of the employer. However, in practice, employers often fail to pay social security for workers according to law, which has been discovered for more than two years. How to deal with this situation? Can I return it?

First, Article 20 of the Labor Security Supervision Regulations provides for a two-year statute of limitations.

Article 20 of the Regulations on Labor Security Supervision

Provisions: "If the violation of labor security laws, regulations or rules has not been discovered by the administrative department of labor security within 2 years, nor has it been reported or complained, the administrative department of labor security will no longer investigate and deal with it. The time limit specified in the preceding paragraph shall be counted from the date of violation of labor security laws, regulations or rules; Violation of labor security laws, regulations or rules is continuous or continuous, counting from the date of termination. "

In practice, the administrative department of labor and social security often fails to deal with illegal acts exceeding two years according to this regulation. Workers often think that their social security can no longer be paid because it has exceeded the two-year period. In fact, ordering to pay social insurance premiums and investigating labor security violations (two-year period) are not the same concept, and the two-year period is not applicable.

Two, the provisions on the payment of social security is not limited by two years.

(a) the relevant provisions of the "Social Insurance Law" do not stipulate that there is a limit to social security contributions.

Paragraph 1 of Article 60 of the Social Insurance Law stipulates: "The employer shall declare on its own and pay social insurance premiums in full and on time, and shall not postpone or reduce the payment except for legal reasons such as force majeure.

The first paragraph of Article 63 of the Social Insurance Law stipulates: "If the employer fails to pay social insurance premiums in full and on time, the social insurance premium collection agency shall order it to pay or make up within a time limit."

Article 13 of the Provisional Regulations on the Collection and Payment of Social Insurance Fees stipulates: "If the payer fails to pay and withhold social insurance fees in accordance with the regulations, the administrative department of labor security or the tax authorities shall order it to pay within a time limit; Fails to pay, in addition to repay the amount owed, from the date of default, an additional 2/1000 of the daily fines. Late payment fees are incorporated into social insurance funds. "

It can be seen that "Social Insurance Law" and other relevant laws not only do not stipulate that social security payment is limited by the time limit, but also clearly stipulate that due to legal reasons such as force majeure, social security fees shall not be postponed or reduced, and late fees shall be added if they are not paid within the time limit.

(II) Ministry of Human Resources and Social Security's reply to the proposal No.5063 of the Fifth Session of the Twelfth National People's Congress (No.2065438105 of the Human Resources and Social Security Bureau) clarifies that social security contributions are not restricted.

The document clearly replied: "About the recovery time limit. Article 20 of the Regulations on Labor Security Supervision stipulates the limitation of labor security administrative law enforcement, which is formulated according to the provisions of Article 29 of the Administrative Punishment Law. At the same time, according to the provisions of Article 29 of the Administrative Punishment Law, this article is divided into two paragraphs. In the practice of law enforcement, it is not only in accordance with the two-year limitation in the first paragraph, but also in accordance with the provisions in the second paragraph, that is, "the time limit stipulated in the preceding paragraph shall be counted from the date of violation of labor security laws, regulations or rules; Violation of labor security laws, regulations or rules is continuous or continuous, counting from the date of termination. "To judge whether there is a continuous or continuous state of illegal activities, so as to determine the limitation of labor security supervision and law enforcement. However, both the Provisional Regulations on the Collection and Payment of Social Insurance Fees and the Measures for Social Insurance Auditing (Order No.2004) and the Ministry of Labor and Social Security 16 set a prosecution period for clearing up the arrears of enterprises. Therefore, in the practice of local labor security supervision and law enforcement, the illegal acts of employers who fail to apply for social insurance and pay social insurance premiums in full and on time are generally recovered and punished in accordance with Article 20 of the Labor Security Supervision Regulations, while there is no limitation on the time limit for local agencies to recover historical arrears. We believe that the failure of enterprises to pay social insurance premiums infringes on the rights and interests of the insured, directly weakens the supporting capacity of the fund, increases the financial burden of the central and local governments, and affects social stability. To this end, we attach great importance to clearing debts and take various measures to guide local governments to do relevant work and promote the collection of accounts receivable. In order to safeguard the social insurance rights and interests of the insured and strengthen the work of clearing debts, the agency generally accepts complaints that exceed the prosecution period of Article 20, paragraph 1, of the Labor Security Supervision Regulations for two years. For those who can provide proof materials, try to meet the demands of the insured and solve them, and reduce the problem of requiring the enterprise to pay the arrears in full when the employees of the enterprise are nearing retirement. "

Three, in practice, how to deal with the limitation of more than two years?

In practice, most people believe that the labor inspection department of human society has a statutory time limit of two years to investigate and deal with violations of labor security laws, regulations or rules, but there is no time limit to order employers to pay or make up social insurance premiums, which does not belong to the above provisions on investigating and dealing with labor security violations.

Moreover, the illegal act of not paying social insurance has been going on. As long as the social insurance premium is not paid and the illegal activities are in a continuous state, the relevant departments are not limited by the time limit. Because the behavior of unpaid social insurance premiums has not yet ended and the illegal activities are in a continuous state, the time limit for recovering social insurance premiums has not exceeded two years.

Therefore, once workers find that the employer fails to pay social security according to law, they can ask the employer to pay back by complaining to the labor inspection department, applying for labor arbitration, and bringing a lawsuit to the court. , whether or not the two-year period has passed.