Introduction to the case
Li joined a company in Xiangyang in September 2009, and the company began paying social insurance for Li in 2014. On July 65438+9, 2009, Li terminated his labor relationship with the company.
In July 2021, when Li turned 50 and wanted to go through the retirement procedures, he learned that he had to pay 15 years of social insurance in the name of a company employee before he could go through the retirement procedures. Li asked the company to pay social insurance from September 2009 to June 2013, but the company refused.
Take a case as an example
In July 2021, Li applied for labor arbitration to the Xiangcheng Labor Dispute Arbitration Committee, requesting confirmation of the labor relationship and payment of social insurance. The Xiangcheng City Labor Dispute Arbitration Commission rejected Li’s arbitration request. Li was dissatisfied and filed a lawsuit with the Xiangcheng District People's Court. In order to protect his legal rights and interests, Li applied for legal aid from the Xiangcheng District Legal Aid Center.
After review, the Xiangcheng District Legal Aid Center concluded that Li met the conditions for legal aid and decided to entrust a lawyer from Hubei Zhimin Law Firm to represent the case. After accepting the entrustment, Attorney Zhang carefully analyzed the legal relationship, fully communicated with Attorney Li, and put forward agency opinions through the analysis of the case facts and legal relationships.
Lawyer Zhang believes that this case is a lawsuit to confirm the labor relationship due to the issue of workers’ social insurance payment. Since the establishment of a labor relationship from the date of employment, it is a legal obligation for the employer to pay social insurance for employees on time. According to the provisions of the "Interim Regulations on the Collection and Payment of Social Insurance Premiums" and the "Social Insurance Law", the labor administrative department exercises exclusive management rights, supervision rights or penalty rights over the social insurance provided by employers for workers. Social insurance is managed by the social insurance administrative department. The collection and payment of unpaid social insurance premiums between workers and employers falls within the scope of administrative management and does not fall within the scope of civil litigation accepted by the People's Court. Therefore, when a dispute arises between employees due to the employer’s failure to pay social security and the employee requires the employer to pay back social security, they can file a lawsuit with the judicial department to confirm the labor relationship. After confirming the labor relationship, apply to the administrative department to collect social insurance from the employer.
In 2019, Li went to arbitration with his employer due to a work-related injury and signed a mediation agreement. The scope of the last labor arbitration did not include the confirmation of the labor relationship, so the mediation content did not include the confirmation of the labor relationship. The dispute between the two parties only refers to the dispute over the payment obligation and does not include the confirmation of facts, so it does not constitute a repeated lawsuit. Li's request for confirmation of labor relations is a confirmation lawsuit. It is just a simple confirmation of the legal relationship and a determination of the facts. This requirement was not included in the previous labor arbitration mediation and should not be limited by the statute of limitations for labor dispute arbitration. Therefore, this case has the factual and legal basis to safeguard the legitimate rights and interests of workers by confirming the previous labor relationship between the worker and the employer.
The Xiangcheng District People's Court finally adopted lawyer Zhang's representation opinion, and the judgment confirmed that there was a labor relationship between Li and the employer from September 22, 2009 to July 1, 2009.
If the employer fails to pay social insurance in time, how should workers protect their rights?
Lawyer Suggestions
Lawyer Zhang Lixia: If there is a labor relationship between the employer and the employee, the employer should pay the corresponding social insurance in full for the employee. If payment is not made, employees can solve the problem through the following channels:
First, apply to the social insurance collection agency and order the unit to pay the corresponding social insurance premiums within a time limit. According to the provisions of Article 63 of the Social Insurance Law, 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 the amount. Therefore, as long as the employee proves that there is a labor relationship with the unit, he or she can request the social insurance collection agency to order the unit to pay the corresponding social insurance premiums within a time limit.
At the same time, workers can propose to terminate the labor contract in accordance with the provisions of Articles 38 and 46 of the "Labor Contract Law" and can request the employer to pay economic compensation.
Second, file a lawsuit with the judicial authority.
According to Article 1(5) of the "Interpretation of the Supreme People's Court on the Applicable Laws in the Trial of Labor Dispute Cases" (Fa Interpretation [2020] No. 26), the employer failed to handle social insurance procedures and the social insurance agency failed to make up for it. , workers can initiate labor dispute arbitration and litigation procedures to judicial organs and require the employer to bear liability for losses.