Is the company s arrears of wages and failure to pay labor insurance considered a breach of contract

If the employee is forced to resign on the grounds that the employer is in arrears of wages or has not paid social insurance, the employee's resignation will not be considered a breach of contract, and the employer may be required to pay severance payments.

Labor Contract Law of the People's Republic of China

Article 38 An employee may terminate a labor contract under any of the following circumstances:

1) Failure to provide labor protection or working conditions in accordance with the provisions of the labor contract;

2) Failure to pay labor remuneration in full and in a timely manner;

3) Failure to pay social insurance premiums for workers in accordance with the law;

4) The rules and regulations of the employer violate the provisions of laws and regulations and harm the rights and interests of workers;

5) The labor contract is invalid due to the circumstances specified in the first paragraph of Article 26 of this Law;

6) Other circumstances under which the labor contract may be terminated by laws and administrative regulations.

If an employer forces an employee to work by means of violence, threats or illegal restriction of personal freedom, or if the employer directs or forces the employee to perform risky work in violation of rules and regulations and endangers the employee's personal safety, the employee may immediately terminate the labor contract without prior notice to the employer.

If the employer has wage arrears, social insurance and other illegal circumstances, the employee does not need to resign in advance, and can resign at any time, so even if you leave the company before the contract expires, you do not need the approval of the unit, and it is not a breach of contract.

Your salary, bonuses, etc. should be recoverable through legal means, and you can also ask the employer to pay compensation for arrears of wages, economic compensation for termination of the contract, etc. Social security fees are not allowed to be paid directly to you in cash, and the law only supports requiring the employer to make up for your social security account, of course, you can negotiate and solve this by yourself.

Legal analysis: Generally speaking, there is no severance for an employee to resign voluntarily, but if the employee is forced to resign according to legal circumstances, the employer should pay severance compensation.

Legal basis: Article 48 of the Labor Law of the People's Republic of China The State implements a minimum wage guarantee system. The specific standards of the minimum wage shall be prescribed by the people of the provinces, autonomous regions and municipalities directly under the Central Government, and shall be reported for the record.

The wages paid by the employer to the employee shall not be lower than the local minimum wage.

Labor Contract Law of the People's Republic of China

Article 30 The employer shall, in accordance with the provisions of the labor contract and the provisions of the State, pay the labor remuneration to the worker in full and in a timely manner. If the employer is in arrears or fails to pay the labor remuneration in full, the worker may apply to the local people's court for a payment order in accordance with the law, and the people's court shall issue a payment order in accordance with the law.

Article 44 Under any of the following circumstances, the employer shall pay the wages and remunerations higher than the wages of the workers for normal working hours in accordance with the following standards: (1) if the workers are arranged to work longer hours, they shall be paid wages and remunerations of not less than 150% of the wages; (2) If a worker is assigned to work on a rest day and cannot be arranged to take a compensatory rest, he shall be paid a wage remuneration of not less than 200 percent of his wages; (3) Where a worker is assigned to work on a statutory holiday, he or she shall be paid a wage remuneration of not less than 300 percent of his wages.

A worker may be forced to resign on the grounds that the employer is in arrears of wages or has not paid social insurance, and the employer may be required to pay severance payments. Article 38 of the Labor Contract Law of the People's Republic of China An employer may terminate a labor contract under any of the following circumstances: 1) Failure to provide labor protection or working conditions in accordance with the provisions of the labor contract; (2) Failing to pay labor remuneration in full and in a timely manner; 3) Failure to pay social insurance premiums for workers in accordance with the law; 4) The rules and regulations of the employer violate the provisions of laws and regulations and harm the rights and interests of workers; 5) The labor contract is invalid due to the circumstances specified in the first paragraph of Article 26 of this Law; (6) Other circumstances in which laws and administrative regulations provide that an employee may terminate a labor contract while traveling.

If an employer forces an employee to work by means of violence, threat, or illegal restriction of personal freedom, or if the employer directs or forces the employee to perform risky work in violation of rules and regulations, endangering the employee's personal safety, the employee may terminate the labor contract immediately without prior notice or notice to the employer.

After leaving the company, the company is in arrears of wages and does not have insurance, and it is possible to claim severance payments. The severance that the employer needs to pay to the employee is as follows: the compensation is paid to the employee at the standard of one month's salary for each full year; if it is more than six months but less than one year, it shall be calculated as one year, that is, one month's salary shall be paid as compensation; If it is less than six months, the worker shall be paid half a month's salary as economic compensation.

The term "monthly wage" refers to the average wage-wage-making of an employee in the 12 months prior to the termination or dissolution of the labor contract.

1. What is the standard of dismissal compensation?

1) Violation of relevant laws and the agreement in the signed contract, deduction of arrears of wages, refusal to pay wages for extended working hours; If the employer pays wages and remuneration lower than the local wage standard, the employer shall pay additional wages and remuneration and 25% of the severance paid to the lower part.

2) If the labor contract is terminated due to the employee's illness, non-work accident or incompetence, the employer shall pay the employee a severance equivalent to one month's salary for each full year of service in the employer, and shall also pay a medical subsidy of not less than six months' salary. For those who are seriously ill or terminally ill, the employer shall also increase the medical subsidy fee, and the increase in the amount of serious illness shall not be less than 50% of the medical subsidy fee, and the increase in the amount of terminal illness shall not be less than 100% of the medical subsidy fee.

3) "The employer terminates the labor contract by the parties to the labor contract through consultation; If a person who is labor blind is incompetent for the job, and is still incompetent after training or job transfer, and the employer terminates the contract, the employer shall pay him an economic compensation equivalent to one month's salary for each full year of service in the employer. If the employee's salary is more than three times the social allowance, he or she shall be paid a maximum of 12 months' economic compensation."

2. What are the legal characteristics of terminating a labor contract?

1. The terminated labor contract is a valid labor contract established in accordance with the law.

2. The termination of the labor contract must be carried out after the terminated labor contract is concluded and takes effect in accordance with the law, but before it is fully performed.

3. Both the employer and the employee have the right to request the termination of the labor contract in accordance with the law;

4. The termination of the labor contract through negotiation between the employer and the employee may not be subject to the termination conditions stipulated in the labor contract.

If the company owes wages or social security, the employee can resign, but it is advisable to negotiate with the employer first. If the negotiation fails, the employee can file a complaint with the labor inspectorate. In China, it is illegal for companies to pay back wages, and employees have the right to claim compensation.

The specific compensation method can be determined in accordance with local laws and regulations.

In addition, if you resign, the company may require you to pay liquidated damages. According to the Labor Law of the People's Republic of China, unless there is a legal provision or the two parties have reached an agreement through consultation, the resignation of an employee shall not be restricted in the form of liquidated damages. Therefore, if your company asks you to pay liquidated damages, please check first.

First of all, you resigned yourself, so how can he compensate you? That is to say, in this kind of nuclear model situation, you can ask the unit to pay you or the bank social security, if he does not make up, you can apply for labor arbitration to get compensation, and your resignation is a penny that will not give you a banquet.

1. According to the relevant provisions of the Labor Contract Law, if the employer fails to pay social insurance premiums for the employee in accordance with the law, the employee may terminate the labor contract with the employer and be entitled to economic compensation. The severance compensation shall be calculated according to the number of years of service of the worker in the employer, and one month's salary shall be paid to the worker for each full year, and if it is more than six months but less than one year, it shall be calculated as one year. The severance compensation is calculated based on the average salary of the employee in the 12 months prior to the termination of the labor contract.

2. If the employee encounters the situation that the employer does not register for social insurance or fails to pay social insurance premiums in full and on time, in addition to applying for labor dispute arbitration, he can also request the social insurance administrative department (i.e., the human resources and social security department) or the social insurance premium collection agency to deal with it in accordance with the law.

3. 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. 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.

Solicitation method: Proportional insurance premium systemThis method is based on the salary income of the insured, and a certain percentage is stipulated, so as to calculate the insurance premium. The main purpose of social insurance is to compensate for the income lost by the insured during the risk accident in order to maintain his minimum livelihood, so he must refer to the income on which he usually depends, on the one hand, as the standard for measuring benefits, and on the other hand, as the basis for calculating premiums. The biggest drawback of the work-based proportional insurance premium system is that the burden of social insurance is directly linked to wages, and whether both employers and employees pay social insurance premiums or one of them pays social insurance premiums, the burden of social insurance is manifested in an increase in labor costs, which will lead to the crowding out of labor by capital, which will lead to an increase in unemployment.

Under the equalization system, the same amount of insurance premiums is charged regardless of the income of the insured person or his employer. The advantage of this system is that it is easy to calculate and easy to implement universally; In addition, countries that use this method to collect insurance premiums generally adopt an equalization system when making payments, which means that all revenues and expenditures are equal. The drawback, however, is that low-income earners pay the same premiums as high-income earners, which is clearly unfair in terms of affordability.

Severance PaymentSeverance is the severance compensation given to the employee when the employer terminates the labor contract. Severance is a one-time economic subsidy paid by the employer to the employee in accordance with the law after the termination or termination of the labor contract. Chinese laws are generally called "economic compensation", the French "Labor Code" is called "severance compensation", and the Russian "Labor Code" is called "dismissal payment".

China's Labor Law and the Measures for Economic Compensation for Violation and Termination of Labor Contracts (hereinafter referred to as the "Economic Compensation Measures") promulgated by the Ministry of Labor in 1994 stipulate that when an employer terminates a labor contract with an employee, it shall pay a certain amount of severance in a lump sum according to a certain standard.