Case Summary. If the employee and the employer agree to waive social security, the agreement shall be invalid. If an employee is unable to enjoy social security benefits because the employer has not completed the social security formalities for him, he may request compensation from the employer.
The focus of the controversy. Whether an employee who voluntarily waives social insurance can request the employer to compensate for the maternity medical expenses covered by the maternity insurance?
Basic facts of the case. Pan joined a clothing store operated by Peng in April 2018 as the store manager. A clothing store purchased social security for Pan from March to September 2021. The two parties signed the "Agreement", stipulating that Pan voluntarily gave up the purchase of social security, and required a clothing store to subsidize his social security premium of 600 yuan per month and pay it together with his salaryPan also issued a certificate of commitment, proving that a clothing store paid 500 yuan for social security, and the rest of the social security expenses were borne by him. In June 2021, Pan's medical expenses due to childbirth were approved by the social security department, and the maternity medical expenses of 512 yuan were in line with the payment scope of employee maternity insurance. Subsequently, Peng cancelled a clothing store and verbally notified Pan to terminate the labor contract between the two parties. Pan sued the court on the grounds that Peng's non-payment of employees' social security and non-payment of maternity allowance were illegal, and requested Peng to pay for prenatal examination and medical expenses. Peng's defense was that Pan had voluntarily given up the purchase of social security and had actually received social security subsidies, and refused to pay the relevant expenses.
Adjudication Results. The Taishan Municipal People's Court held in the first instance that the agreement reached between Pan and a clothing store to issue social security subsidies instead of purchasing social security was found to be invalid in accordance with the law because it violated the mandatory provisions of relevant laws and administrative regulations, so Pan's maternity insurance benefits should be borne by the employer. Because a clothing store did not purchase social security (including maternity insurance) for Pan, the maternity medical expenses of 512 yuan incurred during his childbirth could not be paid within the scope of the employee's maternity insurance, and Pan should be compensated in accordance with the law. Based on the fact that a clothing store had been cancelled, Peng, as its operator, should bear the above-mentioned liability for compensation, so it was decided that Peng should pay Pan 512 yuan for maternity medical expenses. The Jiangmen Intermediate People's Court upheld the original judgment in the second instance.
Typical significance. It is the legal obligation of the employer and the employee to pay social security premiums, and the employer should actively purchase social insurance for the employee. However, in practice, some workers are forced to negotiate with their employers not to purchase social insurance in exchange for a certain amount of wage income due to living pressure or other factors. In this case, the employer was ordered to compensate the employee for maternity medical expenses in accordance with the payment standard of maternity insurance benefits, which not only reflects the compulsion of China's social security system, but also alleviates the economic pressure of the employee to a certain extent, and at the same time enhances the employer's awareness of the responsibility of purchasing social insurance for the employee.
What the judge said. Q: The plaintiff in this case voluntarily gave up participating in social insurance, why does the employer have to compensate him for maternity medical expenses?
Answer: China has established social insurance systems such as basic endowment insurance, basic medical insurance, work-related injury insurance, unemployment insurance, and maternity insurance. According to the Social Insurance Law of the People's Republic of China, the Labor Law of the People's Republic of China and other relevant laws and regulations, employers and employees must participate in insurance and pay social insurance premiums in accordance with the law, and employers have no right to agree that employees do not participate in social insurance. Accordingly, even if the employee voluntarily waives participating in social insurance and signs an agreement with the employer that he or she will not participate in social insurance, it should be deemed invalid because it violates the mandatory provisions of the law. Therefore, if an employee sues the court to request the employer to compensate for the loss of maternity medical expenses on the grounds that the employer has not participated in the maternity insurance or paid the maternity insurance premiums for him or her in accordance with the law, the people's court shall support the claim if the social insurance administrative department is unable to make up the payment and the loss has been verified.
*: Popular Law in China.