What employees do in case previous company does not complete Social Insurance Book?

Who are in charge of  Social Insurance Book?

Section 5(21) of  2014 Law on Social Insurance, employers are  responsible for working with social insurance agency to return the social insurance books to employees as well as confirm the contribution period to Social Insurance after employees end the labor contracts or resign.

In addition, section 3(47) of Labor Law 2012 says that at the time of ending labor contract, employers must complete all the procedures of confirming and returning Social Insurance Book or other documents belonging to employees. Since 2021 - the time that Labor Law shall be effective, this regulation has been being executed.

As such, confirming social insurance book is the employer's compulsory responsibility.

What to do if employers are not responsible for confirming contribution period to social insurance book?

After the end of labor contract, many businesses confirm the social insurance book for employees late on purpose. To advoid this case, employees can follow the below ways:

Complaint about Social Insurance Book.

Article 118 of 2014 Law on Social Insurance, employers have the rights to ask competent authority reconsider decisions, actions of the group or individual whenever there are some proofs that shows illegal actions from the employers.

The complaint about social insurance is executed based on Decree 24/2018/NĐ-CP. Therefore, Article 15 says that the competence to handle with the first complain belongs to the employer. The duration is not more than 30 days since the acceptance day with normal cases (and up to 60 days with special cases).

After the mentioned duration, if the complaint isnt handled or the employees dont agree with this decision. The next complaint will be handled by chief inspector of Ministry of Labor, War Invalids and Social Affairs at where the employer's head quarter is located.

The duration of handling the second complaint with normal cases is 45 days from the acceptance day (and up to 90 days with special cases).

If the second complaint isnt handled within the duration or the employees dont agree with the decision of handling the complaint, the employees can sue at the law court according to administrative procedures (point b section 2(10) of Decree 24).

As such, in case that the previous company doesnt confirm social insurance book, the employees can send a complaint letter to the employer. If can not be handled or the employee doesnt sastify with the decision, they can send the letter to chief inspector of Ministry of Labor, War Invalids and Social Affairs at where the employer's head quarter is located.

Sueing at The law court

If the employees dont want to handle through complaint, they can sue at the law court according to the admistrative procedures.

Section 1(10) Decree 24/2018 has pointed 3 cases that the employees have the rights to sue:

- Having the proofs that shows illegal actions from the employers which infringers to the rights and benefits of the employees.

- Not sastified with the decision of the first complaint.

- The first complaint is not solved within the duration.

Thus, once the employees who have one of the above proofs can directly sue at the law court for unconfirming the social insurance book.

In addition, the regulation of Labor contract has pointed that individual disputes need to be reconciled before asking the help of The law court. However, point d section 1(201) of Labor Law 2012 says that dispute about social insurance is one of the cases that doesnt need to be reconciled.

Thus, the employees can choose to solve this case through mediation process by labor mediator. If not, this case will be transfered to the law court.

From the first of January 2021, the regulation of Labor law 2019 says that the employees will have some more ways to solve the labor dispute about insurance. Thus, the employees can choose board of arbitration  before suing at The law court. The settlement of social insurance by the board of arbitration wont be executed simultaneously with initiating a lawsuit

Here are ways to help the employees get the rights back when the previous company doesnt confirm the social insurance book.

Source: Vietnam Law