[Direct answer]Yes. If the employer fails to pay social insurance premiums in accordance with the law, the employee may request the employer to make up the payments. According to Article 86 of the Social Insurance Law of the People's Republic of China, the social insurance collection agencies may order the employer to make payments within a specified period or make up the payments, and impose a daily fine of 0.05% of the unpaid amount from the date of arrears. If the employer still fails to make payments after the deadline, the relevant administrative departments shall impose a fine on the employer. If the employee is unable to enjoy medical treatment, work-related injury compensation, maternity benefits, or unemployment benefits due to the employer's failure to pay social insurance premiums, the employee may claim compensation for the actual losses. According to Articles 38 and 46 of the Labor Contract Law of the People's Republic of China, if the employee terminates the labor contract on the grounds that the employer has failed to pay social insurance premiums in accordance with the law, the employee may claim economic compensation. The paths of making up payments and claiming compensation are different. It is recommended to choose the claim method according to the actual losses and the employment status, and pay attention to the statute of limitations for arbitration.

1. Problem background and typical scenarios

Employers failing to pay or underpaying social insurance premiums is a common problem in labor disputes. Typical situations include: the employer refusing to pay on the grounds that the employee voluntarily waived it or made a personal commitment not to pay; only paying for some types of insurance or paying at the minimum base rate; the employee discovering that the social insurance premiums were not paid after a work-related injury or medical expenses, making it impossible to claim reimbursement; the employer replacing social insurance with cash subsidies; and the employee discovering gaps in social insurance coverage many years after leaving the job. When courts and arbitration institutions in Beijing handle such cases, they usually first confirm the existence of the labor relationship during the payment obligation period, and then distinguish the acceptance path for requests for retroactive payment from requests for compensation for losses.

II. Key points of contention

First, can employees directly demand compensation from their employers for unpaid social insurance, or should they first request retroactive payment? Second, is the employee's promise to voluntarily waive social insurance valid? Third, when retroactive payment is impossible or no longer practical, how should the scope of compensation for losses be determined? Fourth, can employees claim economic compensation when terminating labor contracts on the grounds of unpaid social insurance? Fifth, how are the jurisdictions of arbitration and litigation divided, and does the request for retroactive payment fall within the scope of jurisdiction? Sixth, who should bear the late payment penalties and fines during the period of arrears? Seventh, the burden of proof for employees claiming compensation for social insurance losses. Eighth, how to handle situations of multiple insurances and duplicate insurances in different regions. These issues determine which path employees should take.

III. Professional analysis by Henglue Lawyers

Based on Henglu Lawyer's practical experience in handling labor disputes, social insurance issues should be divided into two approaches. First, the path of making up for arrears: requiring the employer to make up for social insurance arrears. Generally, complaints and reports should be submitted to the social insurance fee collection institutions or social insurance agencies, and the administrative authorities will order the employer to pay or make up for the arrears within a specified period. This matter is generally not within the scope of labor arbitration and civil litigation. Second, the path of compensation: if the employee cannot enjoy social insurance benefits such as medical insurance, work-related injury, maternity, and unemployment due to the employer's failure to pay social insurance and suffers actual losses, the employee may apply for labor arbitration or file a lawsuit to claim compensation from the employer. Third, the path of termination compensation: terminating the labor contract on the grounds that the employer fails to pay social insurance fees according to law and claiming economic compensation is a common and relatively safe approach. The key is to terminate the contract in writing and state the reasons. Fourth, the path of invalidating waiver promises: the written promise of the employee to voluntarily waive social insurance benefits is generally invalid, as it violates mandatory legal provisions. Fifth, the focus of evidence: the labor contract, payroll records, social insurance payment records, and proof of the inability to enjoy relevant benefits are the core evidence. Sixth, the need to grasp the statute of limitations: claims for compensation for losses are subject to the arbitration statute of limitations and should be asserted as soon as possible.

IV. Practical suggestions and legal basis

Practical suggestions: 1. Check your personal insurance payment records to determine the unpaid or overdue periods and insurance types. 2. Complain to the social security collection agency and demand that the employer make up the payments and pay the late fees. 3. If you suffer actual losses such as work-related injuries or medical expenses, keep receipts, diagnosis certificates, and unreimbursable documents to claim compensation for the losses. 4. If you consider terminating the labor contract due to unpaid social insurance and claiming economic compensation, you must do so in writing. 5. Refuse to sign a commitment document waiving social insurance rights to avoid having your rights weakened. 6. Apply for labor arbitration promptly and pay attention to the statute of limitations and requirements for evidence. For more details, please refer to the platform's services section.Labor arbitration and work-related injury compensation、Personal injury and medical disputes、Creditor's rights and debts, and enforcement、Business and contract disputes in enterprisesAndSpecial servicesLegal basis: Article 86 of the Social Insurance Law of the People's Republic of China (effective since July 1, 2011) and Articles 38, 46, and 47 of the Labor Contract Law of the People's Republic of China (amended in 2012 and effective since July 1, 2013). The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Reminder

Firstly, the social insurance issue needs to distinguish between retroactive payment and compensation, as the approaches and methods of handling them are different. Secondly, the promise to voluntarily give up social insurance is usually invalid and cannot exempt the employer from the obligation to make contributions. Thirdly, when actual losses occur due to the inability to enjoy benefits, it is necessary to promptly fix the evidence and claim compensation. Fourthly, when terminating the labor contract due to unpaid social insurance, the employer should provide a written explanation of the reasons, which is conducive to subsequent claims for economic compensation. Fifthly, requests for retroactive payment are usually handled by social insurance collection agencies, while claims for damages require arbitration or litigation. Sixthly, social insurance rights are closely related to work-related injury and medical benefits. Any unpaid contributions should be dealt with as soon as possible. Seventhly, for cases involving years of unpaid contributions or large amounts, it is advisable to entrust a lawyer to sort out the periods and types of insurance to avoid omissions.

VI. Frequently Asked Questions

Q1: Can I directly demand compensation if the company hasn't paid social insurance for me?

It depends on the circumstances. If you simply request to make up the payment arrears, you should usually file a complaint with the social security collection agency, which will order you to pay or make up the payment within a specified period. If you are unable to enjoy medical treatment, work-related injury benefits, etc. due to the non-payment of social security contributions and suffer actual losses, you can apply for arbitration or sue the employer to claim compensation, and you need to provide evidence of the losses.

Q2: Is it legal for the unit to replace social insurance with cash subsidies?

This is illegal. It is the legal obligation of employers to pay social insurance according to the law, and it cannot be replaced by cash subsidies. Even if employees voluntarily give up their right to social insurance, their promise will not exempt them from their obligations, as it violates mandatory regulations. Employees can request retroactive payment and claim compensation for the corresponding losses.

Q3: Is there any financial compensation if I resign due to unpaid social insurance?

Yes. According to Articles 38 and 46 of the Labor Contract Law of the People's Republic of China, if the employer fails to pay social insurance premiums in accordance with the law, the employee may terminate the labor contract and claim economic compensation, the standard of which is to pay one month's salary for each year of service. It is recommended to submit the termination notice in writing and state the reasons for it.

Q4: Can I claim both back payments and compensation at the same time?

Yes, but the approaches are different. Retroactive payment is generally handled by social security collection agencies and is not within the scope of labor arbitration; compensation for actual losses caused by non-payment can be claimed through arbitration or litigation. The two approaches target different objectives. The former aims to restore social security rights, while the latter seeks to compensate for the already incurred loss of benefits.

Q5: What evidence do I need to prepare for compensation for social insurance losses?

You should prepare labor contracts, pay slips, social insurance payment records, and supporting materials proving that you cannot enjoy benefits due to non-participation in insurance, such as medical bills, diagnosis certificates, unreimbursable receipts, and materials for work-related injury identification. The more complete the evidence is, the easier it will be to obtain support for the amount of losses and the causality between them.

This article is written based on the common judicial interpretation in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify 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. In case of disputes, please consult a practicing lawyer in time.