[Direct answer]In the Beijing area, if an employer fails to pay social insurance for its employees, the employees may request back payments, which typically cover all periods during which the employment relationship existed. According to Articles 58 and 86 of the Social Insurance Law of the People's Republic of China (adopted on October 28, 2010, and implemented on July 1, 2011), employers shall apply to the social insurance agency for social insurance registration for their employees within 30 days from the date of employment and pay social insurance premiums in full on a monthly basis. If the premiums are not paid in full or on time, the employer shall make up the payments within the prescribed time limit and pay the overdue fine. If the payments are still not made after the deadline, the relevant administrative departments shall deal with the matter according to law. In practice, there are three points worth noting: First, back payment requests are usually handled by the social insurance agency. There are differences in the acceptance criteria between labor arbitration and courts. In some regions, pure back payment requests are no longer accepted; Second, back payments involve the agency's processing procedures and collection timeliness. Cases with a long time span may result in the inability to make full back payments due to exceeding the collection timeliness; Third, in addition to back payments, employees can also claim rights for losses caused by the non-payment of social insurance, such as the inability to identify work-related injuries and the inability to reimburse medical expenses.Labor arbitration and work-related injury compensationThe column provides specific explanations on the retroactive payment of social insurance and the assertion of rights.

I. Problem background and typical scenarios

Workers who consult such issues are often in four situations: first, the employer has not paid social insurance for a long time after their employment, and they only recently discovered this or are preparing to leave the company; second, the employer requires them to sign a waiver of social insurance benefits on the grounds that the employees should bear the cost themselves; third, there are obvious problems with the base amount of social insurance payments in the original company; fourth, the company is deregistered or goes out of business, and the social insurance relationship is interrupted and cannot be continued. Common confusions include: how many years can be retroactively paid, who should be contacted for retroactive payment requests, and what remedies are available if retroactive payment fails. In practice, the most common problem is that workers attempt to directly demand retroactive payment through labor arbitration, but some regional arbitration institutions and courts have inconsistent acceptance criteria for retroactive payment requests, leading to repeated procedures. Therefore, the first step should be to verify the acceptance criteria of local social insurance agencies and arbitration institutions, and then choose a path accordingly. Another common misunderstanding is only focusing on retroactive payment itself, ignoring other rights arising from unpaid social insurance. For example, if an industrial injury occurs during the unpaid period, the industrial injury insurance benefits are often not paid by the fund. The approach to industrial injury identification and claim for benefits can be referred to for reference.Intellectual property protection and corporate lawColumn; for the explanation of the dispute resolution procedure and the statute of limitations for arbitration, you may refer to the following materials for reference:Special services and other casesColumn.

II. Key points of contention

Focus 1: The subject responsible for accepting requests for retroactive payment and the division of responsibilities between social security agencies and arbitration courts. Focus 2: The application of retroactive payment periods and collection time limits. Focus 3: Whether the social security contribution base is lower than the actual salary. Focus 4: The legal effect of employers requiring employees to sign waivers of social security rights. Focus 5: The legal path for claiming compensation for failed retroactive payment. Focus 6: The allocation of liability for losses in work injury benefits due to unpaid social security. Focus 7: Cross-regional mobility and social security transfer and continuity. Focus 8: Liability for employers in cases of business closure or dissolution. In addition, attention should also be paid to the procedural connection between requests for retroactive social security payments and claims for related compensation, as well as the impact of local operational rules on the differences in retroactive payment periods.

III. Professional analysis by Henglue Law Firm

From the perspective of labor disputes and social insurance practices, the effectiveness of handling social insurance issues depends on the coordination of two aspects: path selection and evidence preparation. In terms of path selection, it is usually necessary to distinguish between two types of claims: the first type is a request for retroactive payment, which requires submitting to the social insurance agency; the second type is compensation for losses caused by unpaid social insurance, such as work-related injury benefits, medical expenses, and employment barriers, which fall within the scope of labor dispute resolution and can be applied to arbitration agencies. These two types of claims are different in nature, and if they are submitted together, it is easy to encounter acceptance obstacles. In terms of evidence, the most critical three types of materials are: proof of labor relations (employment contracts, pay slips, social insurance payment records), proof of payment base (pay slips and personal income tax declaration records), and proof of losses (medical bills, diagnosis certificates, and disability materials). Our firm experienced the importance of combining procedures and facts in handling a case involving multiple workers: in this case, the employer issued termination notices to twelve employees on the grounds that recruitment procedures were found to be irregular during inspections. The lawyer, while claiming that the termination was illegal, also proposed to improve the employment registration process. Ultimately, the arbitration, first-instance, and second-instance courts all supported the workers' claims for continued performance of labor contracts and improvement of employment registration. This approach suggests that when dealing with social insurance and procedural flaws, both requests for administrative correction and civil rights claims should be considered. It should be noted that social insurance agency rules vary significantly across different regions, and local guidelines should be verified before making procedural choices.

IV. Practical suggestions and legal basis

Action suggestions: First, verify the acceptance criteria of local social security agencies and arbitration institutions; Second, sort out the labor relationship during the period of payment and payment records; Third, collect pay slips and personal income tax declaration records to verify the payment base; Fourth, keep evidence of objections to the unit's commitment to waive social insurance; Fifth, evaluate the losses such as work-related injuries and medical treatment during the unpaid period and claim corresponding rights; Sixth, pay attention to the statute of limitations for collection and the feasibility of retroactive payment; Seventh, promptly fix the information of the responsible subject when the unit is suspended or liquidated. Legal basis: Article 58, Article 60, and Article 86 of the Social Insurance Law of the People's Republic of China (adopted on October 28, 2010, and implemented on July 1, 2011); Article 153 of the Civil Code of the People's Republic of China (implemented since January 1, 2021); and the relevant provisions on work-related injury insurance shall be subject to the current effective laws and local implementation measures.

5. Henglu Law Firm's Reminder

First, confirm the acceptance criteria before taking action to avoid repeated procedures. Second, do not sign a commitment to waive social insurance benefits. Even if you have already signed it, you can still claim your rights according to the law. Third, if the payment base is lower than the actual salary, you should request an adjustment at the same time. Fourth, pay attention to the issue of collection time limits. It may not be possible to make up for the arrears in earlier years, but you should still claim your rights to protect your interests. Fifth, losses of work-related injury benefits caused by unpaid social insurance should be claimed separately and supported by evidence. Sixth, when the unit is liquidated or suspended, timely preserve the registration information of the responsible entities. Seventh, keep all communication records related to social insurance. Eighth, when moving across regions, pay attention to the transfer and continuation of social insurance to avoid disruptions in payments. For the arrangements of dispute resolution and procedural connection, you can refer to the relevant provisions.Special services and other casesColumn.

VI. Frequently Asked Questions

Q1: If the employer hasn't paid social insurance for the employee, how many years can the employee retroactively pay it?

Generally, you can request to cover all periods during which contributions were not paid during the existence of the labor relationship, but whether you can actually make up all the contributions depends on the statute of limitations for collection, the rules of social insurance agencies, and local policies. For years with a long time span, the statute of limitations for collection may have already passed, making it impossible to make up the contributions. Therefore, it is recommended to assert your rights as soon as possible and have a lawyer verify the specific rules in your local area.

Q2: To make up for the unpaid social insurance, should I go to the labor arbitration or the social insurance bureau?

The request for making up for the unpaid social insurance contributions is usually handled by the social insurance agencies. In some regions, labor arbitration agencies and courts no longer accept simple requests for making up for the unpaid social insurance contributions. However, compensation for losses caused by unpaid social insurance contributions falls under the category of labor disputes, and claimants can apply to the arbitration agencies for compensation. It is recommended to first confirm the acceptance criteria with the local social insurance agencies and arbitration agencies before choosing a path of action.

Q3: Do I need to pay a late payment penalty when making up for the arrears?

According to Article 86 of the Social Insurance Law of the People's Republic of China, if an employer fails to pay social insurance premiums in full and on time, it shall make up the payment within the prescribed time limit and pay a penalty of 0.05% of the unpaid amount per day from the date of arrears; if it still fails to pay after the deadline, the relevant administrative departments shall deal with it according to law. The penalty for arrears is a mandatory collection item, usually determined and collected by the social insurance agencies according to law. When workers assert their rights, they should pay attention to whether the payment of arrears and the penalty for arrears are implemented simultaneously.

Q4: The company asked me to sign a pledge to waive social insurance. Did I sign it?

Even if the agreement has been signed, it does not necessarily exempt the employer from its legal obligations. It is a mandatory legal obligation for employers to arrange social insurance for their employees and pay the full amount of contributions. This obligation cannot be waived through mutual agreement. It is recommended to keep the original copy of the commitment letter, raise objections in a timely manner, and collect evidence of the employment relationship and wages. If necessary, assert rights through arbitration or litigation.

Q5: If it's not possible to make up for the arrears, what else can I claim?

You can claim compensation for the actual losses caused by the non-payment of social insurance, such as the benefits that should have been paid by the work injury insurance fund when a work-related injury occurs, and the parts of the medical expenses that cannot be reimbursed. It should be noted that such claims fall within the scope of labor dispute resolution, and you need to provide evidence such as medical bills, diagnosis certificates, and work injury identification materials, and pay attention to the limitation of the arbitration time limit.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Law Firm for specific situations.

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

Disclaimer: This article is compiled based on the current effective laws and regulations and open 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 you encounter disputes, please consult a practicing lawyer in time.