[Direct answer]In the Beijing area, according to Article 56 of the Social Insurance Law of the People's Republic of China (effective July 1, 2011), female employees who give birth are entitled to maternity allowances during their maternity leave, which are calculated based on the average monthly salary of the employees in the employing unit where they work in the previous year. According to Article 8 of the Special Regulations on Labor Protection for Female Employees (effective April 28, 2012), for female employees who have participated in maternity insurance, the maternity allowances during their maternity leave shall be paid by the maternity insurance fund according to the average monthly salary of the employees in the employing unit in the previous year; for those who have not participated in maternity insurance, the maternity allowances shall be paid by the employing unit according to the salary of the female employee before her maternity leave. Therefore, two rules can be derived: First, for those who have not participated in insurance, the employing unit shall pay according to the salary before maternity leave, and there is no problem of allowances being lower than the salary; Second, for those who have participated in insurance, if the average monthly salary of the employees in the employing unit in the previous year is lower than the female employee's salary before maternity leave, the maternity allowances paid by the fund may be lower than the employee's salary. In this case, the difference between the two amounts is usually made up by the employing unit, and the specific standards and methods of operation shall be implemented in accordance with local regulations. It should be noted that there are differences in the arrangements for incentive leave, extended maternity leave benefits, and the specific criteria for making up the difference across different regions. Before making claims, it is necessary to first check the current local regulations and the employee's own contribution base. If the employer refuses to make up the difference, the female employee can claim rights through labor dispute channels.Labor arbitration and work-related injury compensationYou can view similar questions in this column.

I. Problem Background and Typical Scenarios

Such disputes are common in four situations: First, the average monthly salary of female employees in their units in the previous year is significantly lower than their actual salaries, and there is a large difference after the maternity allowance is issued; Second, the unit declares and pays contributions based on a lower base, resulting in a low base for calculating the allowance; Third, the unit fails to participate in maternity insurance in accordance with the law, and only pays part of the salary during maternity leave or even stops paying it; Fourth, there is a disagreement between the unit and the employee about whether the benefits during the reward leave or extended maternity leave are included in the maternity allowance. There is also a situation where female employees find that the unit refuses to pay any difference after they finish maternity leave, citing that the allowance has already been issued. When handling such cases in Beijing, we usually first check the insured status and the payment base, then calculate the difference between the average monthly salary of female employees in the previous year and their pre-maternity leave salaries, and finally determine the subject and amount of the supplementary payment. For disputes involving the termination of labor contracts and position adjustments during maternity leave, we can refer to them together.Divorce litigation and family disputesThe part of the column about the rights and interests of female workers.

II. Key points of dispute

The first focus is whether the unit has participated in maternity insurance in accordance with the law, which determines whether the payment subject is the fund or the unit. The second focus is the calculation base of the maternity allowance, that is, how the average monthly wage of employees in the previous year is determined, and its relationship with the employee's own wage. The third focus is the scope of pre-maternity leave wages, whether it includes bonuses, allowances, and subsidies, which needs to be judged based on the wage composition and local regulations. The fourth focus is who bears the expenses during the reward leave or extended maternity leave, which varies from region to region. The fifth focus is the subject and standard of supplementing the difference in wages, which is usually supplemented by the employing unit, specific to local regulations. The sixth focus is the statute of limitations for rights protection. The statute of limitations for applying for arbitration in labor disputes is one year. The seventh focus is whether the unit can be required to compensate for the loss of benefits caused by the misreporting of the payment base. The specific determination shall be based on the currently effective laws and regulations and local regulations.

III. Professional analysis by Henglue Law Firm

From the practical experience of lawyers handled by our firm, the key points of handling cases involving the difference in maternity allowances lie in clarifying three sets of data. The first set is the insurance data, which should be obtained from the social insurance agency by retrieving the insured's payment records, the payment base, and the details of the maternity allowance verification and payment, to determine the actual amount paid by the fund and the calculation basis. The second set is the salary data, which should be collected from labor contracts, pay slips, bank statements, and personal income tax declaration records to calculate the average salary over the 12 months before maternity leave and use it as a comparison benchmark. Special attention should be paid to which items in the salary composition should be included in the average salary, which is usually determined according to local standards in practice. The third set is the time data, which should clarify the start and end dates of maternity leave, the duration of the incentive leave or extended maternity leave, and whether the employer has paid additional wages or subsidies during maternity leave to avoid double counting. After determining the difference, there are usually two paths of claim: one is to apply for arbitration to the labor and personnel dispute arbitration committee on the grounds of labor disputes and require the employer to make up the difference; the other is to claim compensation for the loss caused by the false declaration of the payment base against the employer. It should be noted that female workers are subject to special protection during pregnancy, childbirth, and lactation, and employers are not allowed to arbitrarily reduce wages, terminate labor contracts, or change jobs in disguise. If such situations exist at the same time, corresponding rights can be claimed together. Overall, the core of evidence is the mutual corroboration of social insurance verification documents and salary certificates. It is recommended to start collecting them before and after the start of maternity leave to avoid difficulties in retrieving files from the agency.

IV. Practical suggestions and legal basis

Action proposal: First, check the insured status and the base amount of contributions before the start of maternity leave, and confirm the calculation method of the allowance in writing with the human resources department of the unit. For the relevant procedures, please refer to the instructions for referenceLabor arbitration and work-related injury compensation1. The first step is to collect and preserve the necessary documents, including pay slips, bank transaction records, personal income tax records, and labor contracts, to calculate the pre-maternity leave salary standard. 2. After receiving the maternity allowance, compare it with the employee's actual salary on a monthly basis. If any discrepancies are found, the employee should promptly submit a written request for compensation to the employer and retain the relevant evidence. 3. If the employer refuses or delays payment, the employee should promptly apply for labor dispute arbitration and pay attention to the one-year arbitration statute of limitations. 4. Verify whether there are any cases of inaccurate declaration of the payment base, and if necessary, claim compensation from the employer for the resulting loss of benefits. 5. If there are concurrent violations such as unlawful job transfer, salary reduction, or termination of the labor contract, the employee should also assert corresponding rights. For issues involving the intersection of marital and family rights with female workers' rights, continued attention should be paid.Divorce litigation and family disputesColumn. Legal basis: Articles 53, 54, and 56 of the Social Insurance Law of the People's Republic of China (effective July 1, 2011); Articles 7 and 8 of the Special Regulations on Labor Protection for Female Employees (effective April 28, 2012); Article 27 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China (effective May 1, 2008); Specific benefit standards shall be subject to the current local regulations.

5. Henglu Law Firm's Reminder

First, insured and uninsured individuals have different payment subjects, so it's necessary to confirm their insurance status before making a claim. Second, maternity allowances are calculated based on the average monthly salary of employees in the previous year, which is different from the employee's personal salary. It's common to encounter a discrepancy between the two amounts. Third, the employer usually makes up for the difference, with the specific standards subject to local regulations. Fourth, the treatment arrangements for reward leave and extended maternity leave vary greatly across different regions, so it's necessary to check the current local policies. Fifth, inaccurate declaration of the base amount for social insurance premiums will directly reduce the level of allowances, so employees can claim compensation from their employers for the losses. Sixth, female employees are subject to special protection during pregnancy, childbirth, and lactation. If they encounter job transfer, salary reduction, or termination of the labor contract, it's recommended to consult a professional lawyer as soon as possible to jointly assert their rights.

VI. Frequently Asked Questions

Q1: The maternity allowance is lower than the salary. Who will make up the difference?

It is usually supplemented by the employing unit. For those who have participated in maternity insurance, the fund pays allowances according to the average monthly wage of the unit's employees in the previous year. The difference between the amount paid by the fund and the employee's pre-maternity leave salary shall be supplemented by the employing unit. The specific standards shall be implemented in accordance with local regulations.

Q2: What should I do if my employer hasn't paid for maternity insurance?

According to Article 8 of the "Special Regulations on Labor Protection for Female Employees", if a female employee does not participate in maternity insurance, the maternity allowance during her maternity leave shall be paid by the employer according to the standard of her pre-maternity leave salary, and the employer shall also bear the medical expenses during the maternity leave.

Q3: What is the calculation standard for maternity allowance?

According to Article 56 of the Social Insurance Law of the People's Republic of China, the subsidy is calculated based on the average monthly wage of employees in the employing unit where the worker is employed in the previous year. Therefore, when the average wage of the unit is lower than the worker's own wage, the subsidy may be lower than the worker's original income level.

Q4: Who issues the money during the reward leave?

The regulations vary from region to region. In some areas, the employer is responsible for paying the salary during the reward leave or extended maternity leave, and the connection between the maternity allowance and the reward leave benefits is also determined by local policies. If you plan to claim these benefits, it is recommended to check the current local regulations first.

Q5: What should I do if my employer refuses to pay the difference?

You can first submit a written request for supplementary compensation and keep the evidence. If the unit refuses to pay, you can apply for arbitration to the Labor and Personnel Dispute Arbitration Committee. Note that the statute of limitations for applying for arbitration in labor disputes is one year, so it's not advisable to delay it.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the adjudication standards in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, 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 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. In case of disputes, please consult a practicing lawyer in time.