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Brief introductions to the Administrative Penalty Discretion Standard by the Human Resources and Soc

Date:2020-05-11 18:50:13

On December10, 2014, the Human Resources and Social Security Bureau of Beijing issued the “Administrative Penalty Discretion Standard” (hereinafter the “Standard") which comes into force on January 1, 2015. Before the Standard was promulgated, several laws and regulations such as the Labor Contract Law of the People's Republic of China (Revised in 2012), Social Insurance Law of the People's Republic of China, the Regulations on Work-Related Injury Insurance, the Implementing Regulations of the Labor Contract Law of the People's Republic of China, the Regulation on Labor Security Supervision, the Regulations on the Management of the Employment of Foreigners, and the Regulations on Employment Service and Employment Management had set only the range of possible administrative penalties; the Standard explains how the labor administrative enforcement authorities should exercise their discretion within these ranges.

The Standard focused on the following:

1)    Recruitment Related
 
Illegal situation Punishment
An employing unit violates the provisions on recruitment. For the first violation, the unit shall be ordered to correct the situation and to pay a penalty of RMB 500.
For further violations, the unit shall be ordered to correct the situation and pay a penalty of RMB 1,000.
An employing unit violates the provisions on employment registration. The unit shall receive a warning and ordered to correct the situation and a penalty of RMB 500 shall be imposed for each worker involved (maximum penalty of RMB 1,000).
An employing unit violates the provisions on establishing a registry of employees. If the registry is missing terms, the employing unit shall be ordered to fix the registry within a given time limit. If it fails to do  so,  a penalty of RMB 2,000 for each missing term shall be imposed (maximum penalty of RMB 20,000).
If no registry is established, the employing unit shall be ordered to establish a registry within a given time limit.   If it fails to do   so, a penalty of RMB 20,000 shall be imposed
An employing unit recruits a laborer who does not have the certification to do the relevant work. The unit shall receive a warning and ordered to correct the situation and a penalty of RMB
500 shall be imposed for each  worker involved (maximum penalty of RMB 1,000).
An employment unit making up, changing, falsely using, transferring, or trading its foreign For a first offense, the unit’s work permit and the Employment License shall be  withdrawn,

2)    Social Insurance Related
 
Illegal situation Punishment
The employing unit fails to handle the social insurance registration for workers in accordance with the law. Less than 30 days past the statutory limit the unit shall be ordered to correct the situation. If it fails to do so, a penalty of the amount it should have paid will be imposed and a penalty of RMB 500 shall be imposed of those on directly responsible.
From 30 to 60 days past the statutory limit the unit shall be ordered to correct the situation. If it fails to do so, a penalty of twice the amount it should have paid will be imposed and a penalty of RMB 1,000 shall be imposed of those on directly responsible.
More than 60 days past the statutory limit the unit shall be ordered to correct the situation. If it fails to do so, a penalty of three times the amount it should have paid will be imposed and a penalty of RMB 3,000 shall be imposed of those on directly responsible.
An employing unit fails to pay social insurance premiums in full and on time in accordance with the law. If the unpaid amount is less than RMB 10,000 a penalty of the amount it should have paid will be imposed.
If the unpaid amount is RMB 10,000 to RMB 30,000 a penalty of the twice the amount it should have paid will be imposed.
If the unpaid amount more than RMB 10,000 to RMB 30,000 a penalty of the three times the amount it should have paid will be imposed.
An employing unit refuses to cooperate with the social insurance administrative department to investigate and verify an insurance accident. For the first violation, the unit shall be ordered to correct the situation and to pay a penalty of RMB 10,000.
For further violations, the unit shall be ordered to correct the situation and pay a penalty of RMB 20,000.

3)    Work Hours Related
 
Illegal situation Punishment
An employing unit violates labor security laws, regulations or rules by extending the laborers' working hours. If less than five laborers are involved, the unit shall be warned, ordered to fix the situation and a penalty of RMB 100 for each laborer involved shall be imposed.
If more than five laborers are involved  the unit shall be warned and ordered to fix the situation. In addition, a penalty will be imposed. The penalty shall be the base rate for each employee. The base rate begins at RMB 100 and goes up by RMB 100 when the number of laborers reaches 10, 20, 30, etc… The maximum base rate is RMB 500.
An employing unit violates the law on the protection of female staff and workers For arranging for female employees who are breast feeding a baby less than one  year old to work night shifts or extended work hours, the unit shall be ordered to correct the situation within a time limit and a penalty of RMB 3,000 for each aggrieved laborer shall be imposed.
The unit shall be ordered to correct the situation and a penalty of RMB 5,000 shall be imposed for each aggrieved laborer for any of the following situations:
  • Having female employees at least seven months pregnant work night shifts or extended hours without rest time
  • Giving less than 98 days of maternity leave for employees that have a baby
  • Not granting an additional 15 days maternity leave for difficult labors.
  • Not giving an additional 15  days maternity leave for each additional infant in the case of multiple births.
  • Not granting female employees who have a miscarriage in the first four months of pregnancy 15 days maternity leave.
  • Not granting female employees who have a miscarriage after the first four months of pregnancy 42 days maternity leave.

Officials stated the implementation of the Standard would ensure consistency in the exercise of discretion by human social security departments at all levels and regulate and prevent the misuse of the discretion. The Standard also means that the offenders will be severely disciplined, and so it hereby to remind enterprises to avoid violating the provisions; an action that would lead to punishment.

 
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