Maternity leave ends early, maternity leave pay shrinks, and there is no maternity insurance for flexible employees
There are female employees who are "not insured" by maternity insurance
Receiving maternity allowance after giving birth is a very important guarantee for working mothers. The maternity allowance is the maternity leave pay, which is equivalent to the salary of the female employee during the childbirth period. The reporter's investigation found that some female employees encountered many difficulties on the way to receive them.
Whether the maternity allowance and salary can be both.
In 2023, in a typical case of protecting the legitimate rights and interests of workers in accordance with the law released by the Chongqing No. 2 Intermediate People's Court, Feng Moumou joined a central primary school in Chongqing to engage in early childhood education. The two parties sign an employment contract every year, and the last term of Feng's employment contract will expire on August 25, 2021. On February 25, 2021, Feng Moumou gave birth naturally, and a central primary school only approved Feng Moumou's 60-day maternity leave. On May 6, 2021, Feng Moumou went to work at the request of the school. On June 28, 2021, Feng Moumou expressed his willingness to leave his job next semester through a WeChat group. During this period, the school paid Feng Moumou's salary of 3,200 yuan during maternity leave. On July 16, 2021, the local security bureau settled the cost of Feng Moumou's maternity allowance, and the settlement statement confirmed that the maternity leave period was from February 10, 2021 to June 17, 2021, with a total settlement fee of 15,29493 yuan, after the payment was made to the school, the school deducted 3,200 yuan from his salary paid during the maternity leave, and actually paid Feng Moumou 12,094$9. After arbitration, Feng Moumou filed a lawsuit, demanding that a central primary school pay him labor remuneration during his maternity leave.
Can maternity allowance and wages be duplicated? The Department of Treatment and Security of the National Health Insurance Administration explained that the function of maternity allowance is to provide alternative wage income for insured female employees during maternity leave, and is not to issue maternity subsidies to female employees. The maternity allowance is generally paid to the unit where the insured employee belongs, and the unit pays it to the employee. As to whether the maternity allowance and salary can be received repeatedly, it mainly involves the salary management of the employer, etc., and it is recommended to further consult the employer.
However, the court held that Feng Moumou was entitled to labor remuneration in accordance with the law at the request of the employer, which was in line with the basic principle of remuneration according to work, and as for the fact that female employees enjoy maternity allowance based on the fact of maternity insurance, the legal attributes of the two are different, and the simultaneous enjoyment is not in conflict and should not replace each other. Therefore, if the employee requests the employer to pay the remuneration for the period, it should be supported.
It should be made clear that returning to work before maternity leave is not encouraged. Shen Jianfeng, director of the Academic Committee of the Law School of the China Institute of Labor Relations, believes that the best way for enterprises to truly demonstrate the protection and respect for female employees is to pay maternity insurance for female employees on time and in full, and to ensure that female employees can take full maternity leave and the existing incentive maternity leave. "Maternity leave protects not only the interests of female employees, but also the growth of babies. ”
Who will make up for the reduced salary during maternity leave.
At present, more and more women are making the most of their abilities in the workplace and earning more than the average salary of employers. Therefore, the difference between the actual salary and the maternity allowance has become one of the risks of infringement of the legitimate rights and interests of some female employees.
In the "Top 10 Cases of Beijing Trade Unions Safeguarding the Rights and Interests of Female Employees in 2022", a case was announced. Ms. Wu from Beijing joined a medical equipment company in 2013 with a monthly salary of 20,000 yuan. During maternity leave, the company paid only 24,7418 yuan maternity allowance. In this regard, the company said that Ms. Wu's monthly salary of 20,000 yuan includes: basic salary, position salary, post salary, performance salary, transportation subsidy, telephone bill subsidy, full attendance award, and seniority salary. Therefore, when calculating maternity leave pay, only the basic salary of 2,500 yuan should be calculated. After several failed communications, Ms. Wu filed for labor arbitration, claiming to make up the difference between the maternity allowance and the wages during the maternity leave, and agreed to be mediated by the union mediator. After understanding the situation, the trade union mediator gave the company a detailed introduction to the relevant legal provisions on the structure of wages and maternity leave.
According to the regulations on the composition of gross wages, gross wages are made up of six components, namely, hourly wages, piece-rate wages, bonuses, allowances and subsidies, overtime wages, and wages paid under special circumstances; Hourly wages include the basic wages and post (post) wages paid to employees by units that implement the structural wage system. Article 27 of the Law on the Protection of Women's Rights and Interests stipulates that no employer may reduce the wages of female employees due to marriage, pregnancy, maternity leave, breastfeeding, etc. In addition, according to Article 8 of the Special Provisions on Labor Protection of Female Employees, the maternity allowance during the maternity leave of female employees shall be paid by maternity insurance according to the standard of the average monthly salary of the employee in the previous year for those who have participated in maternity insurance; For those who have not participated in maternity insurance, the employer shall pay the salary of the female employee before the maternity leave.
In the end, the two parties reached an agreement through mediation, and the employer paid Ms. Wu 40,000 yuan for the difference between her maternity allowance and her actual salary.
Shen Jianfeng also reminded the employer that if the employee's maternity allowance cannot reach the average salary of the employee in the previous year due to the employer's omission, underpayment or underpayment of maternity insurance, the employer has the obligation to make up for it.
Can I receive maternity allowance if I am unemployed before giving birth?
In March 2018, Ou joined a catering company in Guangzhou and was pregnant before joining. In August 2018, the company believed that Ou had provided false work experience and was absent from work when he joined the company, and made a dismissal decision on the eve of his production, and a dispute arose between the two parties. On September 15 of that year, Ou gave birth and demanded that the catering company compensate him for maternity leave wages of 127,800 yuan and lactation wages of 149,100 yuan. After review, the company failed to provide evidence that Ou was absent from work, tardiness, etc., and the work experience filled in by Ou was not false. In the end, the court ruled that the catering company should pay 106,800 yuan in maternity leave wages and 23,640 yuan in nursing wages to Ou.
The judge explained that the labor rights and interests of female employees during pregnancy, childbirth and lactation are protected by the law, and the employer is prohibited from terminating the employment relationship between the two parties without justifiable reasons. If the employer commits illegal termination, in addition to paying compensation for illegal termination of labor relations, it shall also pay the maternity leave pay and part of the nursing pay that the female employee would have been legally entitled to under normal labor relations.
With the development of new business forms, more and more women are becoming flexible workers. Previously, women who were employed flexibly were not entitled to maternity benefits compared to working workers. In 2022, 17 departments, including the National Health Commission, issued recommendations to encourage flexible employees who can participate in basic medical insurance for employees to participate in maternity insurance at the same time. Subsequently, Guizhou, Zhejiang and other places clearly included flexible employment women in the scope of maternity insurance.
Shen Jianfeng believes that the maternity protection of flexible employees is indeed lacking at present. By including flexible workers in the payment of maternity insurance and the scope of maternity allowance, it is of positive significance to protect the interests of this group and promote childbirth. "However, there is a lack of stable employers for flexible employees, and how to pay maternity insurance and how to distribute benefits does require institutional innovation. ”
*:Worker**.
Process edit: u027