What to do when an enterprise pays social insurance late?

Legal situation:

 

In 2019, I signed a labor contract with KN Company Limited with a monthly salary of 12 million. Until May 2023, I submitted a Letter of resignation, which was approved by my company. When I carrying out the procedure to receive unemployment benefits, I discovered that the company had not paid my social insurance and unemployment insurance from July 2022 until now. I would like to ask Lawyer what I should do to protect my legal rights. I sincerely thank you.

 

FDVN’s opinion:

 

Thank you for trusting and submitting your consulting request to the FDVN Law Firm ("FDVN"). Regarding your inquiry, after researching the legal regulations, we have the following information to exchange:

 

According to Clause 6, Article 1 of Decision No. 490/QD-BHXH dated March 28th, 2023, amending and supplementing Decision No. 505/QD-BHXH dated March 27th, 2020, in the case of an enterprise being late in paying social insurance, if the employee meets the conditions for social insurance benefits or termination of a labor contract, an enterprise is responsible for:

 

- Paying full social insurance, unemployment insurance, occupational accident insurance, and occupational disease insurance, including late payment interests as prescribed by law. The social insurance agency shall confirm the social insurance books to promptly resolve social insurance and unemployment insurance benefits for employees;

 

- If an employer has not paid sufficient insurance contributions and premiums, the social insurance authority shall confirm social insurance books for the period in which the insurance contributions and premiums have been paid. After debts of insurance contributions and premiums are paid, the social insurance authority shall make an additional confirmation in the social insurance books.

 

To protect your legal rights, you can choose one of the following two resolution methods:

 

I. File a complaint

 

1. File a complaint to employer

 

According to Clause 1, Article 15 of Decree No.24/2018/ND-CP dated February 27th, 2018:

 

“Article 15. Authority to handle complaints related to labour, and occupational safety and hygiene

 

1. Employers shall have the power to handle complaints for the first time with regard to complaints against their decisions on or acts of labour or occupational safety and hygiene.”

 

According to Clause 1 Article 7 of Decision No.24/2018/ND-CP dated February 27th, 2028:

 

“1. The prescriptive period for filing the first complaint is 180 days after the person filing the complaint receives or perceives the decision or acts of an employer, of an organization or individual engaging in vocational education, of an enterprise or organization providing Vietnamese guest worker programs, of an employment service provider or an organization involved in creating employment for workers, or of an organization in charge of holding examination and issuing national-level vocational certificates that he/she deems unlawful.”

 

Therefore, within 180 days from the date you discover that your company has failed to pay your social insurance and unemployment insurance, you have the right to file a complaint with the company’s Board of Directors or the Trade Union organization to compel your company to pay your social insurance and unemployment insurance.

 

2. Complaint to the Chief Inspector of Department of Labour, War Invalids and Social Affairs

 

In case your company still does not pay your social insurance and unemployment insurance, or if you do not agree with your company’s handling decision, you have the right to file a complaint with the Chief Inspector of the Department of Labor, War Invalids, and Social Affairs – where the company’s head office is located.

 

According to Clause 2, Article 15 of Decree No.24/2018/ND-CP dated February 27th, 2018:

 

“Article 15. Authority to handle complaints related to labour, and occupational safety and hygiene

 

…

 

2. Chief Inspector of Department of Labour, War Invalids and Social Affairs of province where the employer’s head office is located shall have the power to handle complaints related to labour or occupational safety and hygiene for the second time in case the complainant disagrees with the first-time complaint handling decision as regulated in Article 23 or over the time limit prescribed in Article 20, the complaint remains unhandled.”

 

On the grounds of complaint, the Labor Inspector shall inspect and sanction your company for its late payment of social insurance and unemployment insurance.

 

II. File a lawsuit at a People’s Court

 

In case you disagree with the above complaint handling decision, or the time limit prescribed is over but your complaint is not handled, you have the right to file a lawsuit at a Court to protect your legitimate rights.

 

Pursuant to Clause 2 and Clause 3, Article 119 of the Law on social insurance 2014:

 

“Article 119. Order of settlement of complaints about social insurance

 

2. For complaints about social insurance-related decisions or acts not specified in Clause 1 of this Article, complainants may choose either of the following:

 

a/ Lodging first-time complaints with the agencies or persons that have issued these decisions or committed these acts; in case these agencies or persons no longer exist, district-level state management agencies in charge of labor shall settle the complaint;

 

b/ Initiating lawsuits at a court in accordance with law.

 

3. In case complainants defined at Point a, Clause 2 of this Article disagree with the first-time complaint settlement decisions, or when the prescribed time limit expires but the complaints have not yet been settled, they may initiate lawsuits at a court or lodge complaints with provincial-level state management agencies in charge of labor.

 

In case complainants disagree with the complaint settlement decisions of provincial-level state management agencies in charge of labor, or when the prescribed time limit expires but the complaints have not yet been settled, the complainants may initiate lawsuits at a court.”

 

According to Clause 3, Article 18 of Decree No. 115/2015/ND-CP dated 11/11/2015, it is stipulated:

 

“Article 18. Collection of monthly salary as the basis for compulsory social insurance payment in arrears

 

….

 

3. The employer must fully pay social insurance, unemployment insurance, and insurance late-payment interest for an employee meeting requirements for social insurance claim or terminating labor contract to settle social insurance and unemployment insurance for the employee.”

 

Thus, in comparison with the above provisions and according to Point d, Clause 1, Article 32, and Point c, Clause 1, Article 35 of the Civil Procedure Code 2015, you have the right to file a lawsuit at a District Court, where your Company’s head office is located, to compel your Company to pay your social insurance, unemployment insurance, and late payment interest.

 

The above is the advisory opinion of FDVN regarding your consulting request based on the research of legal regulations. We hope that FDVN's advice will be helpful to you.

 

By Lawyer Le Thi Minh Phuong – FDVN LawFirm

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