What should I do if the company doesn t give paternity leave? What to do if the company does not pay

The labor law and other relevant laws and regulations do not make clear provisions on paternity leave, and it is not illegal for companies not to give paternity leave, but at present, most of the provincial family planning regulations have provisions on paternity leave.

If the company does not grant paternity leave, the employee should first communicate with the employer, and if the communication is ineffective, he or she can report to the local family planning department or labor department and apply for labor arbitration.

The employer does not grant paternity leave to the employee.

The employee should first communicate and negotiate with the employer and request the employer to implement local regulations.

Local regulations are legally binding on the locality); When the communication is ineffective, you can report the situation to the local family planning department or labor department and request administrative relief; If necessary, you can apply for labor arbitration (local law provisions can be used as legal support for arbitration).

There is no provision on paternity leave in Chinese law, but most provincial family planning regulations have provisions on paternity leave. If the company does not grant paternity leave, you can go to the family planning department or labor department where the company is located to report and apply for labor arbitration.

In accordance with the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes

Article 2 Scope of Application.

This Law shall apply to the following labor disputes between employers and workers within the territory of the People's Republic of China:

1) Disputes arising from the confirmation of labor relations;

2) Disputes arising from the conclusion, performance, modification, rescission and termination of labor contracts;

3) Disputes arising from removal, dismissal, resignation, or resignation;

4) Disputes arising from working hours, rest and vacation, social insurance, welfare, training, and labor protection;

5) Disputes arising from labor remuneration, medical expenses for work-related injuries, economic compensation or compensation, etc.;

6) Other labor disputes as stipulated by laws and regulations.

Article 5 Basic Procedures for Handling Labor Disputes.

In the event of a labor dispute, if the parties are unwilling to negotiate, fail to negotiate, or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation; If the applicant is unwilling to mediate, fails to mediate, or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration; If a person is dissatisfied with an arbitral award, he or she may file a lawsuit in the people's court, except as otherwise provided by this Law.

Article 12 Application for mediation.

The parties may apply for labor dispute mediation in writing or orally. Where an oral application is made, the mediation organization shall record the applicant's basic information, the disputed matters for which the mediation is being applied, the reasons and the time on the spot.

Article 15 Application for arbitration.

After the mediation agreement is reached, if one party fails to perform the mediation agreement within the time limit agreed in the agreement, the other party may apply for arbitration in accordance with law.

Article 16 Payment Order.

If the employer fails to perform a mediation agreement due to the payment of arrears of labor remuneration, medical expenses for work-related injuries, economic compensation or compensation, the employee may apply to the people's court for a payment order in accordance with the law with the mediation agreement. The people's court shall issue a payment order in accordance with law.

Article 28 Application for Arbitration.

The claimant applying for arbitration shall submit a written application for arbitration and submit copies according to the number of respondents. The statement of claim for arbitration shall contain the following particulars:

1) The name, gender, age, occupation, work unit and domicile of the worker, the name and domicile of the employer, and the name and position of the legal representative or principal responsible person;

2) the claim for arbitration and the facts and reasons on which it is based;

3) Evidence and evidence**, names and addresses of witnesses.

If it is really difficult to write an arbitration application, it may apply orally, and the labor dispute arbitration commission shall record it in the record and inform the other party.

Whether it is illegal for the company not to grant paternity leave depends on whether the province where the company is located has issued relevant legal documents on paternity leave. If the relevant legal documents are issued and the company does not give paternity leave, it is illegal. If there is no relevant legal document, then there is no violation of the law if paternity leave is not granted.

At present, 29 provinces in the country have issued clear legal documents stipulating the number of days of paternity leave.

There are many benefits to the man's "maternity leave", which is good for the health of the mother and the baby. During maternity leave, women are weak and of course need to be taken care of by their husbands. Moreover, mothers often have heavy psychological pressure, easy to fluctuate emotionally, and the husband is around to care, so that the wife and baby can be better cared for, and also help to eliminate the tension of the mother, which is of great help for smooth delivery, postpartum recovery, and breastfeeding.

Paternity leave is a right enjoyed by men in accordance with the law, and if the company does not grant paternity leave, the first thing to do is to negotiate with the company to resolve the issue of paternity leave. Otherwise, you can file a complaint with the labor arbitration department.

Paternity leave refers to the right of the husband and wife who are legally registered as married, and the man enjoys a certain amount of time to care for and care for each other during the period of maternity leave.

The Labor Law and other relevant laws and regulations do not make clear provisions on paternity leave, and the specific provisions depend on the actual regulations of each province, autonomous region and municipality directly under the Central Government, which are basically found in the family planning regulations of various places.

Employers should make specific arrangements for the leave system in accordance with the local family planning regulations, and it is best for employees to clarify their leave rights and interests when signing the contract. When encountering a "shrinkage" of leave or inability to take leave, the worker should first communicate with the unit, and if the communication is ineffective, he or she can report to the local family planning department or labor department. More importantly, the family planning department should communicate with the labor department and strive to include the implementation of leave in the labor security inspection.

Duration of leave across the country:

The shortest paternity leave is 7 days in Tianjin and Shandong; This is followed by Shanghai with 10 days. Beijing, Hebei, Shanxi, Liaoning, Jilin, Heilongjiang, Jiangsu, Zhejiang, Fujian, Hubei, Jiangxi, Guangdong, Hainan, Chongqing, Guizhou, Qinghai and other provinces all have 15 days of paternity leave.

Paternity leave in Hunan and Sichuan is 20 days; Paternity leave in Inner Mongolia, Guangxi, and Ningxia is 25 days; Paternity leave in Anhui and Shaanxi varies depending on whether the couple lives in different places. Anhui clarifies that the husband enjoys 10 days of nursing leave, and if the husband and wife live in different places, the nursing leave is 20 days; Shaanxi stipulates that the man's nursing leave is 15 days, and the husband and wife who live in different places are given 20 days of nursing leave.

Among the above-mentioned provinces, Henan, Gansu and Yunnan have the longest period of paternity leave for men. According to the new version of the family planning regulations, the nursing leave in Henan is one month, and the nursing leave in Gansu and Yunnan is 30 days.

Reference**: Encyclopedia - Paternity Leave

Although this is related to the regulations, it is actually implemented with a lot of discounts.

You can claim that this maternity leave is definitely given in accordance with the labor law.

The employer's practice is illegal, and you can go to the labor inspection brigade where the employer is located to complain.

Legal analysis: Article 77 of the Labor Contract Law of the People's Republic of China provides that if the legitimate rights and interests of an employee are infringed, he or she has the right to request the relevant department to deal with it in accordance with the law, or to apply for arbitration or file a lawsuit in accordance with the law.

Article 78 Trade unions shall safeguard the legitimate rights and interests of laborers in accordance with the law and supervise the performance of labor contracts and collective contracts by employers. If an employer violates labor laws, regulations, labor contracts, or collective contracts, the trade union has the right to put forward opinions or request corrections, and if the mover applies for arbitration or initiates a lawsuit, the trade union shall provide support and assistance in accordance with the law.

Legal basis: Labor Contract Law of the People's Republic of China

Article 77 Where the lawful rights and interests of a worker are infringed upon, he or she has the right to request the relevant departments to handle the matter in accordance with law, or to apply for arbitration or file a lawsuit in accordance with law.

Article 78 Trade unions shall safeguard the legitimate rights and interests of laborers in accordance with the law and supervise the performance of labor contracts and collective contracts by employers. If an employer violates labor laws, regulations, labor contracts, or collective contracts, the trade union has the right to put forward opinions or request corrections, and if the mover applies for arbitration or initiates a lawsuit, the trade union shall provide support and assistance in accordance with the law.

Legal analysis: Whether it is maternity leave or paternity leave, the employer should pay the employee wages as usual, and the employer's failure to pay wages is an illegal act, and the employee can complain to the labor inspection department.

Legal basis: "Population and Family Planning Law of the People's Republic of China" Article 2 and 15 Couples who give birth to children in accordance with the provisions of laws and regulations may receive incentives for extended maternity leave or other benefits.

Special Provisions on Labor Protection for Female Employees》 Article 7 Female employees are entitled to 98 days of maternity leave after giving birth, of which 15 days may be taken before childbirth; In case of dystocia, the maternity leave shall be increased by 15 days; In the case of multiple births, the maternity leave can be increased by 15 days for each additional child. If a female employee has a miscarriage before 4 months of pregnancy, she is entitled to 15 days of maternity leave; If the pregnancy is 4 months old and the miscarriage occurs, the employee is entitled to 42 days of maternity leave.

Social Insurance Law of the People's Republic of China

Article 53 Employees shall participate in maternity insurance, and the employer shall pay the maternity insurance premiums in accordance with the provisions of the State, and the employees shall not pay the maternity insurance premiums.

Article 54 Where an employer has already paid maternity insurance premiums, its employees shall enjoy maternity insurance benefits; The unemployed spouse of an employee shall be entitled to maternity medical expenses in accordance with the provisions of the state. The required funds are paid out of maternity insurance**. Maternity insurance benefits include maternity medical expenses and maternity allowances.

Article 55 Maternity medical expenses include the following:

1) Medical expenses for childbirth;

2) Medical expenses for family planning;

3) Other project expenses as provided for by laws and regulations.

Article 56 Under any of the following circumstances, employees may enjoy maternity allowance in accordance with the provisions of the State:

1) Female employees are entitled to maternity leave when they give birth;

2) Take leave for family planning surgery;

3) Other circumstances provided for by laws and regulations.

The maternity allowance shall be calculated and paid according to the average monthly salary of the employee in the previous year.

The company does not grant paternity leave, and the employee can protect his or her rights in the following ways:

1. Negotiate with the company;

2. Apply for mediation to the mediation organization;

3. Apply to the Labor Dispute Arbitration Commission for arbitration;

4. Dissatisfied with the labor arbitration award, file a lawsuit with the people's court. Paternity leave refers to the right of the husband and wife who are registered to marry in accordance with the law, and the woman enjoys a certain amount of time to care for and take care of each other while enjoying the maternity leave.

The scope of evidence for applying for labor arbitration is as follows:

1. A list of social security that can be printed and stamped by the Social Security Bureau;

2. Individual income tax payment certificate printed and stamped by the local taxation bureau;

3. Bank salary bills and salary slips;

4. Temporary residence permit, work permit, work uniform work permit, etc. handled by the employer for the employee;

5. Attendance records, entry forms, and work orders;

6. Witness testimony of co-workers and colleagues; Wait a minute.

Legal basisArticle 5 of the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes.

In the event of a labor dispute, if the parties are unwilling to negotiate, fail to negotiate, or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation; If the applicant is unwilling to mediate, fails to mediate or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration; If a person is dissatisfied with an arbitral award, he or she may file a lawsuit in the people's court, except as otherwise provided by this Law.

1. If the company does not grant paternity leave, the employee can protect his rights in the following ways: negotiate with the company; apply to a mediation organization for mediation; Apply to the Labor Dispute Arbitration Commission for arbitration; Dissatisfied with the labor arbitration award, he filed a lawsuit with the people's court. Paternity leave refers to the right of husband and wife who are legally registered as married, and the husband enjoys the right to have a certain amount of time to care for and care for each other during the period when the woman enjoys maternity leave.

2. Legal basis: Labor Dispute Mediation and Arbitration Law

Article 5 In the event of a labor dispute, if the parties are unwilling to negotiate, fail to negotiate or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation; If the applicant is unwilling to mediate, fails to mediate, or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration; If a person is dissatisfied with the arbitral award, he or she may file a lawsuit in the people's court, except as otherwise provided for in this Law.

Legal analysis: The labor law and other relevant laws and regulations do not make clear provisions on paternity leave, and it is not illegal for companies not to give paternity leave, but at present, most of the provincial family planning regulations have provisions on paternity leave.

If the company does not grant paternity leave, the employee should first communicate with the employer, and if the communication is ineffective, he can report to the local family planning department or labor department, and apply for labor arbitration for resolution.

Legal basis: Article 27 of the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes Article 27 The limitation period for applying for arbitration of labor disputes is one year. The limitation period for arbitration shall be calculated from the date on which the parties knew or should have known that their rights had been infringed.

The statute of limitations for arbitration provided for in the preceding paragraph shall be interrupted when one of the parties claims rights against the other party, or requests rights and remedies from the relevant authorities, or the other party agrees to perform its obligations. From the time of interruption, the arbitration limitation period is recalculated.

If, due to force majeure or other justifiable reasons, the parties cannot apply for arbitration within the limitation period for arbitration as provided for in the first paragraph of this Article, the limitation period for arbitration shall be suspended. The limitation period for arbitration shall continue to run from the date on which the reasons for the suspension are eliminated.

If a dispute arises due to arrears of labor remuneration during the existence of the labor relationship, the employee's application for arbitration shall not be subject to the limitation period for arbitration as provided for in the first paragraph of this Article; However, if the labor relationship is terminated, it shall be filed within one year from the date of termination of the labor relationship.