If an employee voluntarily gives up social security, can the unit not pay social security to the employee? Regarding these contents of social security, I hope everyone will learn it.
01
The Ministry of Human Resources and Social Security has also long been clear
Employees voluntarily give up social security, and employers cannot be exempted from liability
Affected by the epidemic, many enterprises have asked employees to sign a statement of renunciation of social security, which is roughly as follows:
In response to this phenomenon, the Ministry of Human Resources and Social Security issued a notice clearly stating that employees voluntarily give up social security, and employers cannot be exempted from liability:
According to the relevant provisions of the state, employers and employees should participate in the basic old-age insurance system and pay the basic old-age insurance premiums in full and on time, which is not only the legal rights of the employer and the employees, but also the due diligence of the employer and the employees, and cannot be exempted according to the wishes of the employees or employers, otherwise they will bear the corresponding legal responsibilities.
02
A few notes on social security contributions
1. What else does the employee need to pay when he or she has drawn up a declaration of abandonment of social security?
need.
Social insurance is a social security system compulsorily implemented by the state, and handling social insurance for employees is an obligation that employers cannot move. The employee voluntarily drafts or signs an agreement to waive social security, which is itself a violation of the law, so the agreement is invalid.
In the matter of paying social security, the employer cannot look at the employee's wishes, no matter how it is agreed, as long as it is not paid according to the regulations, it is an illegal act.
2. Can I exchange social security for cash and then hand it directly to employees?
No.
This is invalid because Social Security is not completely handed over directly to individuals.
According to Article 72 of the Labor Law of the People's Republic of China, "the social insurance fund determines the source of funds according to the type of insurance, and gradually implements social pooling." Employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law. ”
This means that workers also have the obligation to pay social security, which must not be ignored, but if the administrative department verifies it, enterprises and individuals will be punished.
So small partners should pay attention to reasonable and legal.
3. What should I do if I am "voluntarily"?
If the company is forced not to pay social security and forces employees to sign relevant certificates, the Human Resources and Social Security Bureau will make corresponding penalties.
According to article 84 of the Social Insurance Law, if an employer fails to register for social insurance, the social insurance administrative department shall order it to make corrections within a time limit; if it fails to make corrections within the time limit, the employer shall be fined not less than one time but not more than three times the amount of social insurance premiums payable, and the directly responsible supervisors and other directly responsible personnel shall be fined between 500 yuan and 3,000 yuan.
Moreover, if the enterprise forces the employee to sign a waiver social security agreement, it is invalid and illegal, and finally the enterprise deals with it according to law and still needs to pay.
4. Can employees be persuaded to give up social security to increase wages?
For employees, the payment of social security according to regulations is responsible for themselves. For us, reasonable payment of social security and the obligation of the employer according to law are not only responsible for employees, but also responsible for enterprises.
I believe you have also seen that the various environments that have emerged this year are testing the financial partners, and the most important point is to understand the law.
Friendly Reminder:
Article 38 of the Labor Contract Law stipulates that if the employer has any of the following circumstances, the employee may terminate the labor contract:
If the employer fails to pay the labor remuneration in full and in a timely manner or fails to pay the social insurance premium for the employee in accordance with the law, the employee may terminate the labor contract on this ground and require the employer to pay economic compensation.
note:
1. The employee's salary income in the current month is not enough to cover the personal part of the deduction, and the employee needs to bear the personal difference part of the expense (this situation is only caused by the number of days in the service, the income is low, rather than the situation that the monthly income is abnormally lower than the normal value or even lower than the minimum monthly wage under the intentional state of enterprise performance);
2. The employee has paid social security in the month of entry or the former unit; the employee's entry into the next unit in the month of departure is earlier than the social security levy time, and the employee is required to bring the letter of termination to enter the company on time and pay the insurance for the current month (in this case, it must be agreed and can only initiate the suspension of insurance after the date of departure and the next day to initiate the dissolution, so as to avoid the formation of social security after the work injury in the state of suspension).
If an employee leaves the company at the beginning of the month or joins the company at the end of the month, once the employee applies for labor arbitration or files a lawsuit with the court, 100% wins the lawsuit, the unit must be fully compensated, but also bear a high late fee.
Therefore, in practice, although some enterprises will determine a time node by themselves, such as the 15th or 20th, the social security payment for those who enter the job before this date and leave after the company, if there is an employee who requires the month of entry or the month of departure to pay, the company will generally pay for it.
The social security bureaus in various places can handle the increase and decrease of social security business at the time node every month, and if the time node is passed, they can only wait until the next month to operate.
5. How to avoid such situations?
It should also be mentioned that the practice of paying social security to employees who have not worked for less than one month will make the company bear more social security costs, so it is recommended that our small partners encounter similar situations and pay attention to the following points:
1. Plan the entry time in advance and avoid the "embarrassing blind spot";
2. Prevent the risk of resignation and attrition in advance, especially in areas where social security fees are paid next month in the month, and pay attention to this problem in advance when doing wage withholding;
3. National companies, where the social security rules are complex, it is recommended to inquire more about local policies or consult professional institutions;
4. Within the legal boundaries, grasp the degree of "reasonableness", similar to the obviously unreasonable practice of "leaving the company on the 21st and not paying in the month", which is obviously unreasonable (although some places are operable to reduce the number of employees in the month), we should be cautious and formulate reasonable internal rules within the external legal boundaries.
03
Remind the general public of workers
We must pay attention to the payment of social security
According to the current regulations, after reaching the statutory retirement age, the pension insurance must be paid for 15 years before the pension can be received.
Medicare, on the other hand, can solve the basic problem of reimbursement for medical treatment. Especially female employees, when it comes to fertility issues, are inseparable from birth insurance.
For short-term workers, social security is equally important because it provides the necessary protection if they are unemployed or injured at work.
04
Remind the majority of enterprises
We must pay attention to the payment of employee social security
As an enterprise, the unit is obliged to pay social security to every employee, and employees voluntarily give up social security, and the enterprise will face 3 major risks!
1. During the period of non-payment of social security, if an accident such as a work injury occurs, the enterprise cannot escape responsibility
Regardless of whether the employee voluntarily gives up the insurance, as long as the company does not pay social security to the employee, the accidental injury during the work is recognized as a work injury, and the expenses originally paid by the work injury insurance fund must be paid by the company. If an employee dies in the line of duty, according to mainland law, the enterprise also pays a one-time work-related death allowance.
In 2017, the per capita disposable income of urban residents nationwide was 36,396 yuan, and a one-time work-related death allowance may bankrupt a company. (The standard of one-time work-related death allowance in 2018 is: 36396 yuan×20 = 727920 yuan (national unified price))
2. If the employee requires supplementary payment of social security, 100% of the enterprise should be paid back
Although employees voluntarily waive their right to enjoy social security, enterprises cannot waive their obligation to pay social security. If the employee requires the enterprise to pay back, the enterprise must pay 100% of the employee's social security.
3. Enterprise social security overdue will face legal liability
If the employer fails to pay the social insurance premiums in full and on time, the social insurance premium collection agency shall order the payment or make up for them within a time limit, and from the date of non-payment, it shall add a late fee of 5/10,000 per day; if it still fails to pay within the time limit, the relevant administrative department shall impose a fine of not less than one time but not more than three times the amount owed.
05
There are only these 10 kinds of people
You don't have to pay social security
In fact, there are many employees who can buy social insurance without you.
1. Re-employment of retirees
Companies often rehire some retirees, does the company need to pay social insurance for them?
Article 44 of the Labor Contract Law stipulates that if an employee begins to enjoy the basic old-age insurance benefits in accordance with the law, the labor contract shall be terminated.
In other words, the contract signed between the company and the retiree is not a labor contract, but a labor contract.
(1) Labor contract disputes fall within the scope of adjustment of the Labor Law, the Labor Contract Law, and the Trade Union Law, and require the use of pre-arbitration procedures.
(2) Labor contracts are a kind of civil contracts, which are regulated by civil law, contract law and economic law, so disputes arising from labor contracts can be tried by the people's court or resolved through consultation between the two parties.
2. Intern
Many schools in the last six months of students are about to graduate, will let students find their own unit internship, some enterprises due to the nature of the work, often recruit some interns who have not yet graduated, then, the employment of interns, do you need to pay social insurance for them?
(1) The Labor Law stipulates that only employers who meet the labor relationship and workers of a certain age can sign the Labor Contract, but whether it is an employment relationship or a labor service relationship is not determined by the name and content of the contract, but by the nature of the employment.
In other words, as long as the employee is at least 16 years old and has not reached the retirement age, and there is no "attribution relationship" with a third party, the two parties must sign an "employment contract", and even if they do not sign, the employee is protected by the Labor Law.
(2) Although the intern is at least 16 years old, there is still a "relationship of ownership" with the third-party school, so the employer can only sign a "labor contract" or an internship agreement with him.
Therefore, interns hired by enterprises are part of a labor contract (or internship agreement) and do not need to pay social insurance for them.
3. Contractor dispatch personnel
In the general contracting and subcontracting of engineering projects, there will be such a situation, in order to facilitate the supervision of the project, the general contractor will often send several management personnel, such as: technical director, engineering director, project manager, construction personnel and other on-site management personnel, and the salaries of these dispatched personnel are generally borne by the subcontractors, and at the same time, the subcontractors will also sign the "Labor Contract" with the dispatched personnel.
This type of dispatched personnel, because they can only sign the "Labor Contract" with the subcontractor, therefore, the personnel sent by the general contractor have signed the "Labor Contract" with the general contractor, and there is a "vesting relationship" with the general contractor, and the subcontractor does not need to pay social security insurance for it.
4. Employees who remain without pay
The so-called suspension of pay and retention of employment refers to the surplus of fixed employees of the enterprise, retaining their identity and leaving the unit. Suspension without pay generally does not exceed 2 years.
If an employee signs a "Suspension and Retention Agreement" with a third-party company, the new employer can only sign a "Labor Service Contract" when recruiting the person, and does not need to pay social insurance for him.
5. Co-security personnel
Co-insurance personnel refer to laid-off workers who have signed a tripartite agreement with the original unit and the reemployment service center to retain the social security relationship.
When recruiting co-insurance personnel, the new unit can only sign the "Labor Service Contract" and does not need to pay social insurance for them.
6. Part-time workers who are not working independently
Part-time employment of non-independent labor services refers to the use of spare time to engage in a second occupation without leaving the job, providing physical or mental labor expenses for a third party.
Part-time employees themselves have their own jobs, sign labor contracts and pay social insurance, which are handled by the work unit, and have nothing to do with part-time companies, so there is no need to pay social security.
7. Employ labor dispatch personnel
The labor dispatch company shall sign a labor dispatch agreement with the employing unit, if the agreement stipulates that the attendance and salary payment of the labor dispatch personnel are the same as those of their own employees, and the corresponding expenses of the labor dispatch employees are paid, and the five insurances and one gold are paid by the labor dispatch party, which are recognized as wages and salaries in both individual income tax and enterprise income tax.
The dispatched personnel have paid social insurance by the labor dispatch company, and the enterprise can not pay for this part of the personnel.
8. Individual outdoor package enterprise business
The employees on the production line are set up as individual households in groups, and the employees' wages are converted into the income of the self-employed business, while the individual industrial and commercial households without employees can participate in the basic endowment insurance, and the individual pays the basic pension insurance premium, and the enterprise does not need to pay social security for it.
Since self-employed people have a limited tax exemption policy, and self-employed people can also invoice companies to reduce costs, it has become a popular planning choice.
9. Part-time employment
Part-time employment is paid by the hour, and the employee is in the same employer, the average working hours per day do not exceed 4 hours, and the cumulative working hours per week do not exceed 24 hours.
Part-time employees can participate in basic endowment insurance and basic medical insurance, and individuals shall pay basic endowment insurance premiums and basic medical insurance.
10. Flexible employment personnel
Flexible employment refers to persons who are employed in flexible forms such as part-time, temporary and flexible work.
There are three main types:
(1) Self-employed workers
(2) Home helpers
(3) Seasonal workers, labor contractors, labor dispatch workers, domestic hourly workers and other flexible employment personnel.
Flexible employment personnel can pay basic old-age insurance premiums and basic medical insurance by individuals.
In any case, social security is very important for the general public, and for employees, paying social security according to regulations is responsible for themselves. For enterprises, reasonable payment of social security and legal obligations of employers are not only responsible for employees, but also responsible for enterprises.