Does the company have to make up for the maternity allowance if it is lower than the salary?

For those who participate in maternity insurance, maternity allowance shall be issued by maternity insurance**; If the female employee does not participate in maternity insurance, the employer shall pay the salary of the female employee before the maternity leave. If the maternity living allowance is lower than the salary standard before the maternity leave, the employer shall make up for it. Referring to the Special Provisions on Labor Protection of Female Employees in the Social Insurance Law, Article 8 of the Shanghai Provisions on the Labor Protection of Female Employees Article 8 of the maternity allowance for female employees during maternity leave, for those who have already participated in maternity insurance, the maternity insurance shall be paid by the maternity insurance according to the standard of the average monthly wage of the employee in the previous year of the employer; For those who have not participated in maternity insurance, the employer shall pay the salary of the female employee before the maternity leave.

The medical expenses for childbirth or miscarriage of female employees shall be paid by the maternity insurance in accordance with the items and standards stipulated in the maternity insurance, and for those who have already participated in the maternity insurance**; For those who have not participated in maternity insurance, the employer shall pay for it. Article 54 of the Social Insurance Law 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**.

Article 56: In any of the following circumstances, employees may enjoy maternity allowances in accordance with state provisions: (1) Female employees are entitled to maternity leave for childbirth; (2) Enjoy 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.

Notice of the Shanghai Municipal People** on Implementing the "Special Provisions on Labor Protection of Female Employees" and Adjusting the Relevant Provisions on the Maternity Insurance Benefits of Female Employees in Shanghai II. Maternity Leave Benefits for Female Employees in Shanghai Female employees in Shanghai who give birth or have a miscarriage in accordance with the provisions of family planning shall enjoy maternity living allowance in accordance with the following provisions: (1) Female employees participating in the city's urban maternity insurance give birth or have a miscarriage, The maternity living allowance shall be calculated and paid according to the average monthly salary of the female employee in the previous year divided by 30 days and multiplied by the number of days of maternity leave that the female employee is entitled to, and the required funds shall be paid by the urban maternity insurance of the city. (2) Where the maternity living allowance enjoyed by female employees in this city is lower than the standard of their wages before maternity leave, it is to be implemented in accordance with the first paragraph of article 27 of the "Law of the People's Republic of China on the Protection of Women's Rights and Interests" and article 5 of the "Special Provisions on the Labor Protection of Female Employees".

3) Where a female employee who has not participated in the city's urban maternity insurance gives birth or has a miscarriage, her maternity living allowance shall be calculated and paid in accordance with the salary standard of the female employee before the maternity leave and the number of days of maternity leave that the female employee should enjoy, and the required funds shall be paid by the employer.

During the maternity leave, the company does not pay wages and has been shirking the maternity allowance, and the employee can directly file a complaint with the labor inspection department where the employer is located, or apply for labor arbitration at the labor dispute arbitration commission where the employer is located. Article 77 of the Labor Contract Law If the legitimate rights and interests of a worker are infringed, he or she has the right to request the relevant department to handle the matter 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 lawful rights and interests of laborers in accordance with law, and shall 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 submit opinions or request corrections; Where a worker applies for arbitration or initiates a lawsuit, the trade union shall provide support and assistance in accordance with law.

Legal analysis: According to the laws and regulations of our country, you can apply to the labor arbitration agency for labor arbitration.

Legal basis: Article 47 of the Law of the People's Republic of China on Labor Dispute Mediation and Arbitration Except as otherwise provided in this Law, the arbitral award shall be final and effective from the date of issuance

1) Disputes over the recovery of labor remuneration, medical expenses for work-related injuries, economic compensation or compensation, which does not exceed the amount of the local monthly minimum wage standard for 12 months;

2) Disputes arising from the implementation of the national standards for working hours, rest and vacation, social insurance, etc.

Article 10 of the Regulations on Labor Security Supervision The labor and social security administrative departments shall carry out labor security inspections and perform the following duties:

1) Publicize labor security laws, regulations, and rules, and urge employers to implement them;

2) To inspect the employer's compliance with labor security laws, regulations and rules;

3) To accept reports and complaints about violations of labor security laws, regulations or rules;

4) Correct, investigate and deal with violations of labor security laws, regulations or rules in accordance with the Law of Late Violence.

Legal Analysis: Not both. During the period when an employee is entitled to maternity leave or family planning surgery leave in accordance with regulations, the maternity allowance shall be paid by the employer in advance on a monthly basis in accordance with the employee's original salary standard, and then the social insurance agency shall allocate it to the employer in accordance with the regulations.

In areas where conditions permit, the social insurance agency may entrust financial institutions to directly issue maternity allowances to employees. If the employee is already entitled to the maternity allowance, it shall be deemed that the employer has paid the corresponding amount of wages. If the maternity allowance is higher than the employee's original wage standard, the employer shall pay the balance of the maternity allowance to the employee; If the maternity allowance is lower than the employee's original salary standard, the employer shall make up the difference.

Legal basis: "Special Provisions on Labor Protection of Female Employees" Article 8 During the period of maternity leave, if a female employee ceases to pay wages, changes to a childbirth allowance, and participates in maternity insurance, the maternity insurance shall be paid according to the average monthly salary of the employee in the previous year, and if the average monthly salary of the employee in the previous year is lower than the salary of the female employee before the maternity leave, the unit shall make up the difference. Those who do not participate in maternity insurance shall be paid according to the salary before maternity leave.