[Direct answer]Invalid. It is a statutory obligation for employers to pay social insurance for their workers, and this obligation cannot be waived due to the employees' "voluntary commitment" or receipt of cash subsidies. According to Article 58 of the Social Insurance Law of the People's Republic of China, employers shall register their employees for social insurance within 30 days from the date of employment. If the employer fails to pay social insurance in accordance with the law, the collection agency shall order the employer to pay or make up the arrears within a specified period in accordance with Article 63, and impose a daily fine of 0.05% of the arrears in accordance with Article 86. If the employer refuses to pay the arrears after the expiration of the time limit, the employer shall be fined not less than one but not more than three times the amount of the arrears. Employees may also terminate the contract in accordance with Article 38 of the Labor Contract Law of the People's Republic of China and claim economic compensation in accordance with Article 46. Relevant disputes may be resolved through legal channels.Labor arbitration and legal services for work-related injury compensationOrBeijing Henglu Law FirmConsultation.

I. Problem Background and Typical Scenarios

In practice, some enterprises try to reduce labor costs by finding ways to "save" on social insurance contributions. Common tactics include: making employees sign a "Voluntary Waiver of Social Insurance Payment Commitment Letter" upon employment, claiming that the employees themselves do not want to pay; converting the social insurance fees payable by the unit into "social insurance subsidies" and paying them together with salaries in cash, in exchange for employees not lodging complaints; not paying social insurance during the probation period and only handling it after the probation ends; and disguising the true employment relationship under the guise of "labor outsourcing" or "cooperation relationships". Many employees initially think it's a good deal to get hundreds or thousands of yuan more in cash each month, but when they find themselves unable to claim medical reimbursements, restricted in buying houses or settling household registration, or uncompensated for work-related injuries, they realize that the commitment letter can't help them. Such arrangements not only harm workers' rights, but also expose enterprises to multiple risks including retroactive payment of social insurance contributions, late payment penalties, fines, and full responsibility for work-related injuries.

II. Key points of dispute

  • The legal effect of the commitment letter and the agreement: Paying social insurance is a legally mandatory requirement. Whether the agreement to waive it is always invalid, and whether the employee's request to make up for the payment after regretting it can be supported? The practical view on this issue is generally consistent.
  • The handling of cash subsidies: After employees have received "social security subsidies" for many years and request to make up for the payments, can the employer require them to return the subsidies that have already been issued? What are the rules for handling the situation where both parties hold different opinions on this matter?
  • Forced termination and economic compensation: What conditions need to be met and how to proceed when terminating a contract on the grounds of non-compliance with social insurance payment obligations? What standards are used to calculate economic compensation, and who should be held responsible for the claim for retroactive payment of social insurance premiums?

III. Professional analysis by Henglue Lawyers

Henglue Lawyers have reached a clear conclusion in handling labor disputes related to social insurance: the promise to waive social insurance cannot alter legal obligations. The subject of social insurance payment and the contribution rate are directly stipulated by law and are mandatory. Article 4 of the Social Insurance Law of the People's Republic of China requires employers and individuals to pay social insurance premiums in accordance with the law. Any agreement excluding this obligation through a promise letter or agreement is invalid because it violates mandatory legal provisions. Whether the employee signs the agreement or not, or whether the signing is voluntary, does not affect the determination of the invalidity. This also means that if an employee later claims to make up for the payments, they can do so directly without the prerequisite of the promise letter being revoked. Regarding cash subsidies, in practice, it is generally believed that the funds distributed by the employer in the form of subsidies should be used for social insurance payments. If an employee claims to make up for the payments, most regions will require the employee to return the portion of the social insurance subsidies already received to avoid double benefits. However, the specific amount of the subsidies often faces evidentiary disputes due to the mixed nature of the payment items. Both the worker and the employer should keep pay slips, agreement texts, and other supporting documents. Regarding forced termination, according to Article 38(1)(3) of the Labor Contract Law of the People's Republic of China, if the employer fails to pay social insurance premiums for the worker in accordance with the law, the worker may terminate the labor contract and is entitled to economic compensation according to Article 46(1). This right cannot be denied because the employee once signed a waiver agreement. If the enterprise wants to rectify its employment model from a compliance perspective, it can refer to the following measures:Legal services for corporate commercial and contract disputesSynchronously sort out the employment and contract system.

IV. Practical suggestions and legal basis

At the legal basis level: Article 58 of the Social Insurance Law of the People's Republic of China requires employers to apply for social insurance registration for their employees within 30 days from the date of employment; Article 63 stipulates that if employers fail to pay social insurance premiums on time and in full, the social insurance premium collection agencies shall order them to pay or make up the arrears within a specified period, and impose a daily fine of 0.05% of the arrears from the date of arrears; Article 86 stipulates that if the arrears are still not paid after the deadline, the relevant administrative departments shall impose a fine of not less than one but not more than three times the amount of the arrears. Articles 38, 46, and 47 of the Labor Contract Law of the People's Republic of China respectively stipulate the circumstances of forced termination, the obligation to pay economic compensation, and the calculation standard of one month's salary per year of service; Article 82 stipulates the responsibility of double wages for not signing a written labor contract, which often occurs together with social insurance issues. At the practical advice level: Employees should keep materials proving the labor relationship, such as labor contracts, salary records, and attendance records, and first communicate with the unit in writing to request retroactive payment. If the unit refuses to cooperate, they can file a complaint with the social insurance audit or labor supervision departments, and the administrative authorities shall order the unit to make retroactive payments. If the employee intends to terminate the labor contract on the grounds of unpaid social insurance, it is necessary to issue a written notice of termination and state the reasons, and then claim economic compensation. The order of operation directly affects whether the claim can be established.

5. Henglu Law Firm's Reminder

Social insurance is not a welfare benefit provided by the employer, but a legal obligation. Signing a waiver letter does not mean losing out on the benefits themselves, but rather on long-term benefits such as medical reimbursements, work-related injury compensation, and pension accumulation. It is particularly important to note that if a work-related injury occurs during the period of non-participation in social insurance, according to Article 41 of the Social Insurance Law of the People's Republic of China, all expenses that should be paid by the work-related injury insurance fund will instead be borne by the employer. Employees should promptly claim work-related injury benefits, while employers should be aware of the risk of "saving a little money now but paying a lot later". For those who have already fallen into the situation of arrears in payment, it is advisable to promptly promote the issue through a combination of administrative complaints and negotiations, designing both the claim for arrears in payment and the settlement of compensation. For matters involving the calculation of compensation amounts or procedural coordination, relevant parties may seek assistance through legal channels.Labor arbitration and legal services for work-related injury compensationThe evaluation, or afterSpecial services and other case servicesHandle complex cases.

Q1: After signing the commitment letter to voluntarily waive social insurance, can I still ask the company to make up for the payment of social insurance arrears afterwards?

Yes. Paying social insurance is a mandatory legal requirement. The voluntary waiver agreement signed by employees is invalid because it violates mandatory regulations. Whether the agreement was signed voluntarily or not, it does not affect employees' right to apply for social insurance in accordance with the law after the fact. Employees can bring materials proving the employment relationship, such as labor contracts, pay slips, and attendance records, to the social insurance collection agencies or labor supervision departments to file complaints. The agencies will order the units to make up for the payments within a specified time limit, and the units will also be required to pay a daily fine of 0.05% of the unpaid amount. It should be noted that employees who have previously received cash under the name of "social insurance subsidies" may be required to return the money when making up for the payments. They should calculate and keep payroll details in advance to avoid being put in a passive position when making claims.

Q2: The company said they would pay me my social insurance in cash. Is that legal?

This is illegal. Replacing social insurance payments with cash subsidies essentially constitutes an attempt by employers to evade their statutory payment obligations, which is an invalid arrangement. For employees, while they may seem to receive a few hundred yuan more in the short term, the actual losses are far greater: medical insurance cannot be reimbursed, pension insurance contributions will not be accumulated, unemployment and maternity insurance benefits will be lost, and there will be no protection in the event of work-related injuries. For employers, if the complaint is verified, they will not only have to make up the principal but also bear late payment penalties and fines of no less than one time but not more than three times the amount. If an employee suffers a work-related injury during the uninsured period, the employer will still have to fully cover the work-related injury insurance benefits. For employees who have already received subsidies, in practice, they usually need to return the portion of the subsidies they have already received. Both parties should keep records of the payments for future accounting purposes.

Q3: The company has never paid social insurance for me. Can I resign and request economic compensation?

Yes. According to Article 38 Paragraph 1 Item 3 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; according to Article 46 Paragraph 1, if the employee terminates the contract on this basis, the employer shall pay the employee economic compensation, calculated according to the standards set forth in Article 47, that is, one month's salary for each year of service in the unit, six months or more but less than one year shall be calculated as one year, and less than six months shall be paid half a month's salary. In practice, it is recommended to first send a written notice to the unit to make up for the payment and keep the evidence of delivery, and then send a notice of termination stating "due to the failure to pay social insurance premiums in accordance with the law". It is not advisable to leave the unit verbally, as this may make it difficult to prove the reason for termination and affect the determination of economic compensation.

Q4: Is there a time limit for requiring employees to make up for the unpaid social insurance contributions?

The retroactive payment of social insurance premiums falls under the scope of administrative collection and is subject to a different arbitration time limit from ordinary labor disputes. According to Article 20 of the Regulations on Labor and Social Security Supervision, if a violation of labor and social security laws is not discovered by the administrative department of labor and social security within two years and is not reported or complained about, it will no longer be investigated. Therefore, it is advisable to file a complaint for retroactive payment as soon as possible. In some regions, the audit and recovery of unpaid social insurance premiums are handled more flexibly, and can be dealt with in accordance with local practices. However, for the right to request economic compensation due to the forced termination of employment due to unpaid social insurance, the one-year arbitration time limit stipulated in Article 27 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China applies, starting from the date of termination of the employment relationship. The time limits for the two claims are different. It is recommended to file a claim with the arbitration committee within one year after leaving the job and to file an administrative complaint as soon as possible to avoid neglecting one aspect while focusing on another.

Q5: Is it appropriate to not pay social insurance during the probationary period and only start paying it after becoming a regular employee?

No. Social insurance should be paid from the date of employment. The probationary period is included in the term of the labor contract. If the employer delays payment on the grounds of "paying after becoming a regular employee" or "not handling social insurance during the probationary period", it also constitutes failure to pay social insurance in accordance with the law. According to Article 58 of the Social Insurance Law of the People's Republic of China, the employer shall handle the social insurance registration for the employee within 30 days from the date of employment. If the registration is not completed within the time limit, the social insurance administrative department shall order the employer to make corrections. Employees have the right to require the employer to participate in social insurance and make payments during the probationary period. If the employer refuses, the employee may file a complaint with the social insurance collection agency and request to make up for the payments from the date of employment. The employee may also terminate the contract in accordance with Article 38 of the Labor Contract Law of the People's Republic of China and claim economic compensation after weighing the pros and cons. When the employee starts work, they should check the situation of social insurance participation and deal with any omissions in payment as soon as possible.

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