[Direct answer]Yes. According to Article 38 of the Labor Contract Law of the People's Republic of China (amended in 2012), if the employer fails to pay social insurance premiums for the employee in accordance with the law, the employee may terminate the labor contract; according to Article 46 (1), if the employee terminates the contract in accordance with Article 38, the employer shall pay economic compensation, the standard of which shall be calculated according to Article 47 based on the length of service and the average monthly wage. It is necessary to distinguish between the two approaches: one is to terminate the labor contract on the grounds of non-payment of social insurance and claim economic compensation, which belongs to labor disputes and can apply for labor arbitration; the other is to require the employer to make up for the social insurance premiums, which generally should be reported to the social insurance agency or the tax and human resources departments for complaints, and the administrative authorities shall order the employer to make up for the social insurance premiums. If the employee suffers losses due to the inability to enjoy medical, work-related injury, and unemployment benefits because of the non-payment of social insurance premiums, the employee may claim compensation for the losses.

1. Problem background and typical scenarios

Social insurance is a basic guarantee for workers, but it's not uncommon for employers to fail to pay or underpay social insurance contributions in practice. Typical scenarios include: the employer failing to register for social insurance after the employee starts working; delaying payment on the grounds of the probation period; declaring contributions based on the minimum base amount that doesn't match the actual salary; only paying for some types of insurance or replacing it with commercial insurance; and employees only discovering that their social insurance contributions have been interrupted after leaving the company, which affects their ability to purchase property, settle household registration, and claim medical insurance reimbursements. When handling such matters in Beijing, social insurance disputes are often dealt with simultaneously through labor arbitration and administrative complaints. How to choose and coordinate these two channels is the key to ensuring the efficiency of rights protection.

II. Key points of contention

First, can the non-payment of social insurance directly serve as a ground for forced termination of employment? Second, can economic compensation and the retroactive payment of social insurance be claimed simultaneously? Third, do social insurance disputes fall within the scope of labor arbitration? Fourth, how should the losses caused by the non-payment of social insurance be calculated and substantiated? Fifth, what are the differences in the handling of insufficient payment and non-payment of social insurance? Sixth, how is the arbitration statute of limitations calculated?

III. Professional analysis by Henglue Law Firm

Based on Henglue Lawyer's practical experience in handling labor disputes, the approach to advancing cases involving unpaid social insurance contributions is as follows. First, establishing the facts: Social insurance payment records, salary records, labor contracts, and attendance materials can be used to prove the existence of unpaid or insufficiently paid social insurance contributions. Payment records can generally be obtained by consulting the social insurance agency. Second, choosing the legal path: If the employer terminates the employment contract due to unpaid social insurance contributions and the employee claims economic compensation, this constitutes a labor dispute, and the employee can file a labor arbitration case. If the employee demands retroactive payment of social insurance contributions, they can typically file a complaint with the social insurance agency or relevant administrative departments, and the administrative authorities will order the employer to make the payments. These two approaches can be pursued concurrently. Third, seeking compensation for losses: If unpaid social insurance contributions result in the inability to reimburse medical expenses, claim unemployment benefits, or receive work-related injury compensation, the employee can claim compensation for the actual losses and must submit corresponding receipts and proofs. Fourth, observing the statute of limitations: The statute of limitations for labor arbitration is generally one year, calculated from the date the employee knows or should have known that their rights have been infringed. For claims for labor compensation during the term of the employment relationship, there are separate rules, so it is necessary to take action promptly.

IV. Practical suggestions and legal basis

Action list: First, check and print the social security payment records to establish the fact of unpaid or underpaid social security contributions; Second, send a notice of forced termination in writing, stating the statutory reason for unpaid social security and keeping the delivery receipt; Third, distinguish the claims. For economic compensation, go through labor arbitration, and for retroactive payment of social security, file a complaint with the social security agency or the competent department; Fourth, if there are losses caused by unpaid social security, collect bills and evidence to claim compensation; Fifth, apply for arbitration within the one-year statute of limitations. For labor disputes, you can refer to the relevant provisions.Labor arbitration and work-related injury compensation; For issues related to labor compliance in enterprises, you can refer to the following materials for reference.Business and contract disputes in enterprisesColumn. Legal basis: Articles 38, 46, and 47 of the Labor Contract Law of the People's Republic of China (amended in 2012), and the provisions on the employer's payment obligations and legal responsibilities in the Social Insurance Law of the People's Republic of China (implemented on July 1, 2011). The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Advice

Firstly, failure to pay social insurance premiums constitutes a statutory ground for forced termination of employment, but this requires evidence and formal notifications. Secondly, economic compensation and retroactive payment of social insurance premiums are separate matters and should be claimed separately. Thirdly, actual losses arising from the failure to pay social insurance premiums can be claimed separately. Fourthly, attention should be paid to the one-year arbitration statute of limitations to avoid losing rights due to delay. If you are currently facing similar issues, you can seek assistance through the following channels:Labor arbitration and work-related injury compensationThe service provides a comprehensive solution, which involves the integration of social insurance and employment managementBusiness and contract disputes in enterprises板块。

VI. Frequently Asked Questions

Q1: If I don't pay social insurance, can I resign directly and get compensation?

This can be claimed. According to Article 38 of the Labor Contract Law of the People's Republic of China, if the employer fails to pay social insurance premiums for the employee in accordance with the law, the employee may terminate the labor contract and claim economic compensation in accordance with Article 46 (1). It is recommended to notify the employer in writing and state the reason for the termination, and at the same time, keep the evidence of the unpaid social insurance and the delivery receipt, so as to prove the legitimacy of the termination in the arbitration.

Q2: Can I request both the retroactive payment of social insurance premiums and compensation at the same time?

Yes, but the procedures are different. Economic compensation can be claimed through labor arbitration; for social insurance arrears, you usually need to file a complaint with the social insurance agency or relevant administrative departments, and the administrative authorities will order the employer to make up for the arrears. These matters are not directly handled by labor arbitration. The two can be pursued concurrently, with each case being submitted to the appropriate agency. It's important to pay attention to the respective procedures and time limits.

Q3: If the company hasn't paid social insurance, can I claim reimbursement for medical expenses?

You can claim compensation for actual losses. If the worker is unable to reimburse medical expenses from the social security fund, receive unemployment benefits, or enjoy work-related injury benefits due to the non-payment of social insurance, you can claim compensation from the unit for such losses. You need to submit materials such as medical receipts, diagnosis certificates, unemployment registration, and records of unpaid social insurance. The scope of losses is limited to actual losses with an established causal relationship.

Q4: If I pay social insurance according to the minimum base amount, does that mean I'm not paying it in accordance with the law?

This may constitute an underpayment. The employer should declare the payment base according to a certain percentage of the total wages of the employees. If the employer declares the payment base at the minimum standard for a long time while the actual wages are obviously higher, it constitutes an underpayment. The worker may request to make up the difference and file a complaint with the social security agency or the competent department for handling. The determination of the facts of such disputes usually requires the mutual verification of the payroll and the payment records.

Q5: What should I do if I find out that my social insurance has been discontinued after leaving my job?

Claims can still be made. For retroactive payment of social insurance premiums, you can file a complaint with the social insurance agency or the competent department, requesting an investigation and ordering the retroactive payment; for losses caused by the interruption of payment that prevent you from enjoying benefits, you can claim compensation from the unit within the arbitration statute of limitations. It is recommended to check and print the payment records as soon as possible, confirm the period and reasons of the interruption of payment, and keep materials such as labor contracts and pay slips to fix the evidence for complaints and arbitration.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Labor arbitration legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If a dispute arises, please consult a practicing lawyer in time.