The employer does not enter into an employment contract; there is a penalty. Working without a contract will cost employers dearly

The labor relations between the employee and the employer presuppose the existence of a concluded agreement between them. However, there are often cases when work is carried out without an employment contract. In which of them can the employer be held liable for this?

Labor or civil law

An employment contract is the basis for the emergence of labor relations.

It is possible to talk about the legality of concluding a GPC agreement only if it does not cover labor relations; the purpose of a civil contract is its specific result, and payment under the contract is made upon achieving this result. In this case, the absence of an employment contract is legal.

But if between the customer organization and the executing citizen (as the parties to such a civil process agreement are called in most cases) such a relationship has developed when the first requires the second to comply with the labor rules and the work schedule established in the organization, work in a specified position (profession) and pay he receives a salary for this, there is an actual labor relationship covered by a civil process agreement.

Official registration of labor relations is the responsibility of the employer. According to Art. 67 of the Labor Code, the period for concluding an employment contract is 3 days from the moment a person is admitted to work. Ignoring these norms, many employers still prefer to work without an employment contract.

Pros and cons for the employer

Without drawing up an employment contract with an employee, the employer pursues a certain benefit for himself. It could be as follows:

• The possibility of not providing the employee with normal and safe working conditions, because he is not subject to Labor Code standards in this area.
• There is no need to make tax deductions for the employee, which significantly reduces the employer’s expenses.
• The right to terminate the employment relationship with an employee at any time, without complying with the guarantees provided by the Labor Code for certain categories of employees (notice of dismissal, payment of severance pay, restriction of dismissal of pregnant women, persons of pre-retirement age, etc.).
• Lack of specific deadlines for payment of wages, as well as their amounts.

The only disadvantage of employment without registration for the employer is the liability provided by law.

Employer's liability

An employer's responsibility for the work of its employees without an employment contract can be divided into 3 types:

Some facts

1. Tax office. When officially employed, the employer must make contributions to social insurance, health insurance, accident insurance, and the pension fund in a total amount of about 34% of the employee’s salary.
   The purpose of these contributions is to cover periods of employee incapacity. Without concluding an employment contract, the employer deprives his employee of the opportunity to count on payments in case of illness and retirement, and spends the money on increasing his own profits.
   In this regard, Article 123 of the Tax Code obliges an employer who violates the rights of employees not only to fully reimburse unpaid contributions, but also to pay a fine of 20% of them.
2. Administrative. Art. 5.27 of the Code of Administrative Offenses provides for an employer who has allowed a person to work, but has not formalized an employment relationship with him accordingly, to be punished with a fine of 10 to 20 thousand rubles. An employment contract concluded in accordance with the Civil Code is also considered work without registration, although in fact the person performs duties in the organization regulated by the Labor Code. For this, Article 5.27 of the Code of Administrative Offenses provides for a fine of 10 to 20 thousand for officials and from 50 to 100 thousand for legal entities.
3. Criminal. If the amount of underpaid taxes and fees falls under the concepts of large or especially large amounts, the employer will be prosecuted under Art. 199.1 CC. This crime may be punishable by a fine of up to 500 thousand rubles, arrest or imprisonment of up to 5 years.

When registering an employee, the employer must prepare the following documents: 1) issue an employment order; 2) make an entry in the work book; 3) provide job descriptions in accordance with the staffing table. In addition, the head of the company must familiarize the new employee with all local acts that regulate the labor activities of the enterprise and employee. When reviewing the documents, the employee’s signature is affixed.

Pros and cons for the employee

The benefits of working without registration are as follows:

Interesting information

When an employee contacts the labor inspectorate, an inspection of the enterprise’s activities can be carried out, including the legality of hiring an employee, as well as compliance with the rights and guarantees of the employee during the performance of work duties and the procedure for dismissal. However, the labor inspectorate does not have much power and can only record a violation and issue an order to eliminate it within a certain period of time and issue a fine.

• Receiving a higher salary. It is achieved due to the fact that the employer hands over to the employee part of the tax deductions that he does not pay due to the lack of official employment. In addition, an employee can work more hours than provided for by labor legislation, for which the employer will make an additional payment.
• Work without documents. An employee who does not enter into an employment contract, without official employment, does not need to provide the employer with documents on education, health, etc. Many foreign citizens work unofficially so as not to receive the appropriate permits from the FMS.
• The employee is not subject to additional obligations in the form of compensation for material liability to the employer, maintaining trade secrets, notifying the employer of his desire to resign, etc.
  However, the advantages of working without a contract do not outweigh the negative consequences of such employment.
• The guarantees provided by the Labor Code are not observed: paid leave and sick leave, compliance with working hours and breaks in work, provision of social leave, ensuring safety in the workplace, etc.
• Uncertainty about wages. Due to the fact that there are no documents confirming the agreed amount of wages, the employer can, at his own discretion, change its size and payment procedure.
• Lack of work experience. All the time of unofficial work is not included in either the general length of service or the special one (for example, if a person works in the Far North), therefore, upon reaching retirement age, such a worker will be left without government payments.
• Uncertainty about work deadlines. You can work without an employment contract as long as the employer is interested in the employee. At any time, he can terminate the employment relationship with a person, while the employee will be left without severance pay and without guarantees of priority retention in the workplace, which the Labor Code provides for certain categories of citizens (disabled people, pregnant women, single parents, etc.)

The employer’s refusal to formalize the relationship should alert the employee from the first days of work. If the employer claims that he is hiring a person for a probationary period and therefore does not see the need to conclude an agreement, the employee risks being left without work and without money at the end of the “probationary period”.

In the process of work without registration, management can increase working hours beyond the established norm, involve the employee in performing duties even on a weekend or at night, without worrying about the existing guarantees specified in Articles 152-154 of the Labor Code of the Russian Federation.

What to do if the employer does not enter into an employment contract

The legislation provides for 2 options for official labor relations: fixed-term and indefinite; the employer himself determines which agreement to conclude with the employee. Working without registration is risky for an employee, but if such a situation occurs, there are several solutions:

• Insist on concluding an employment contract;
• Resign from the organization;
• Continue working informally, simultaneously collecting documents with which you can prove the fact of an employment relationship.

The fact is that the law protects workers who work without registration from the arbitrariness of employers, who can not only kick out the employee at any time, but also not pay him wages.

Yes, Art. 67 of the Labor Code states that the admission by the employer or his authorized person of an employee to perform labor duties is equivalent to the conclusion of an employment contract, despite the fact that in fact it may not be formalized. That is, an employee without official employment can go to court for reinstatement at work and payment of wages, but for this he needs to prove to the court the fact of an employment relationship.

In the video below, a lawyer talks about the features of working without registration

Evidence of work without registration

As evidence, an employee can use the testimony of people who worked with him, as well as written documents:

• Personal medical record of the employee, if he underwent monthly examinations with the employer;
• Bank statement confirming monthly transfers of funds as wages;
• Waybills for drivers;
• Power of attorney to perform any actions on behalf of the organization;
• Written or electronic invitation to work;
• Other documents containing the employee’s signature or his last name.

If the court recognizes the fact of work without drawing up an employment contract, the employer will have to reinstate the employee at work and pay the arrears of wages. However, the time of such work will still not be taken into account in the length of service for assigning a pension.

Ask questions in the comments to the article and get an expert answer

According to statistics, currently every fifth Russian works without official registration of labor relations, which deprives him of all guarantees and compensation provided for by labor law. So, if an employee is not employed in accordance with all the rules, then he loses years of experience, receives less money in his pension “piggy bank” and cannot be fully protected by labor protection legislation.

On January 1, 2015, a number of provisions of Law No. 421-FZ came into force, which amend the Code of the Russian Federation on Administrative Offences. In particular, Art. 5.27. Part 3 of this article establishes liability for evasion or improper execution of an employment contract or the conclusion of a civil contract, whereas in fact there are labor relations.

According to amendments to the Code of the Russian Federation on Administrative Offences, introduced by Federal Law No. 421-FZ of December 28, 2013, liability for failure to conclude an employment contract will be tightened from 2015.

Article 5.27 of the Code of the Russian Federation on Administrative Offenses in the new edition provides for penalties for officials of up to 20,000 rubles. (for each unofficial employee), for legal entities - up to 100,000 rubles. with the obligation to compensate the employee for his entire period of work without registration.

The Law also introduced amendments to Art. 19.5 of the Code of the Russian Federation on Administrative Offenses, which assigns to the labor inspector the right to record the fact of non-conclusion of an employment contract: “Failure to comply within the prescribed period or improper fulfillment of a legal order of an official of the federal executive body exercising federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, entails the imposition of an administrative fine on officials in the amount of thirty thousand to fifty thousand rubles or disqualification for a period of one to three years on persons carrying out entrepreneurial activities without forming a legal entity - from thirty thousand to fifty thousand rubles; ; for legal entities - from one hundred thousand to two hundred thousand rubles."

But the most interesting is the newly introduced Art. 19.1 of the Labor Code of the Russian Federation. It determines the procedure for recognizing relations arising on the basis of a civil contract as labor relations. Previously, recharacterization of a civil contract could only be carried out by the court. Now, relations arising on the basis of a civil law contract can be recognized as labor relations by:

A person who uses personal labor and is a customer under the specified contract, on the basis of a written statement from an individual who is a performer under the specified contract, or an order of the state labor inspector to eliminate the violation of Part 2 of Art. 15 Labor Code of the Russian Federation;
- the court in the event that an individual who is a executor under the specified agreement appealed directly to the court, or based on materials (documents) sent by the state labor inspectorate, other bodies and persons with the necessary powers in accordance with federal laws.

That is, an individual who was a performer under a civil contract has the right to apply to the court for recognition of these relations as labor relations in the manner and within the time limits established for the consideration of individual labor disputes.

When the court considers disputes regarding the recognition of relations arising on the basis of a civil contract as labor, irremovable doubts are interpreted in favor of the existence of labor relations.
Changes to the Code of the Russian Federation on Administrative Offenses are aimed primarily at legalizing relations between an employee and an employer, explains senior assistant prosecutor A.V. Ovsyannikova.

As of 2017, the employer’s responsibility for failure to draw up an employment contract is in the scope of administrative offenses, which is stipulated by Art. 5.27 Code of Administrative Offences. The punishment for unscrupulous companies was significantly tightened with the adoption of Federal Law No. 421, which expanded the powers of labor inspectorate employees, and also introduced increased fines and other penalties - both for officials of the offending enterprise and for the organization as a whole.

The prescribed punishment for individuals, incl. IP

According to the Labor Code (Article 16), any person who has worked at an enterprise for more than 3 days must be officially employed by signing, in accordance with Art. 67 of the Labor Code of the Russian Federation, employment contract (an employee can stay for up to three days without any formalization or mention anywhere).

If there is no agreement even after this period, then the employer becomes liable for failure to draw up an employment contract.

According to the subject, it will always be divided into 2 types:

• responsibility of an official/a number of employees for whom the official registration of employees is a direct job responsibility (HR officers and/or direct management of the organization). They are responsible before the law as individuals. faces;
• As a legal entity, the employer is also responsible for failure to draw up an employment contract. The entire organization as a whole is responsible.

For an individual, punishment will be applied in accordance with Art. 5.27 of the Administrative Code, which allows you to impose the following sanctions:

• in case of actual hiring of an employee that occurred without the knowledge of the company’s management directly (no contract is concluded in such cases, of course), a fine of 3 to 5 thousand rubles is provided for citizens whose responsibilities do not include hiring employees;
• from 10 to 20 thousand rubles for officials for a similar offense;
• if the drawing up of an employment contract was refused, or it was concluded in an improper form, then for citizens the fine is already higher - from 5 to 10 thousand rubles, for an official - from 10 to 20 thousand.

For an official who has previously been brought to administrative responsibility for failure to draw up an employment contract, a punishment (in addition to a fine) may be imposed in the form of disqualification, that is, dismissal and the inability to hold a similar position for a long period.

Liability of a legal entity

A legal entity, for example an LLC, will bear much more serious liability if it is established that the failure to draw up an employment contract was the “policy” of the company, and not an isolated incident that occurred through the fault of the responsible employee.

The punishment may be as follows:

• a fine on the organization in the amount of 50 to 100 thousand rubles;
• suspension of business activities for up to 90 days.

As for how such an offense can be detected in general, significant changes were made back in 2015, which now allow a decision on its existence to be made not only by a judicial authority, but also by a labor inspectorate employee.

Attention! According to Art. 2.1 of the Code of Administrative Offenses, liability for failure to draw up an employment contract may simultaneously apply to both the company’s employees and the legal entity itself. Thus, the penalties provided for in Art. 5.27 of the Code of Administrative Offences, can be imposed on an unlimited number of participants in the offense.

All of the above applies specifically to the formal drawing up of the contract (or the lack thereof). But the employer-employee relationship is much more complex. The lack of formalized relations inevitably leads to violation of tax laws, lack of pension contributions, the right to receive vacation, etc.

The most obvious is concealing the tax base, because the employee still receives wages. If such a violation is detected, according to Art. 123 of the Tax Code of the Russian Federation, the employer/employees themselves will be required to return to the treasury all previously not received payments, as well as a 20 percent fine of this amount.

Insurance payments not received by pension funds will also have to be repaid according to a similar scheme (a fine in favor of the state of 20% of the total amount, or 40% when deliberate concealment of these incomes was revealed, according to Federal Law No. 212).

Attention! Direct criminal liability of the employer for failure to draw up an employment contract is not provided for as such, but it may arise due to related offenses. Yes, Art. 199 of the Criminal Code of the Russian Federation (non-payment of taxes) provides for punishment in the form of a fine from 100 to 300 rubles, or imprisonment for up to 2 years. For similar acts committed on an especially large scale, the fine will be increased to 500 thousand rubles, and the prison term may increase to six years.

Article 5.27 of the Code of Administrative Offenses mentions that not only the complete absence of the contract itself between the employer and the employee, but also its improper drafting leads to liability. Such agreements are simply invalid and therefore also violate the rights of the employee.

The rules for drawing up contracts are as follows:

• the agreement cannot be collective. An employment contract is drawn up with each employee individually, without exception for any industry;
• the entrepreneur submits one of the copies of the concluded agreement to the employment service;
• the content of each document must coincide with all the others (there are three in total: one for the employee, the other remains in the organization and the last one for the employment service);
• authenticity is verified by the signatures of the parties to the agreement.

The contract, as mentioned earlier, is concluded no later than three days after the employee’s actual stay on staff, therefore each document has a date of preparation and signing.

This is a minimum but necessary basis that must be present in every employment contract. Depending on the specific case, it may also indicate the guaranteed salary, the conditions under which the employee was hired, penalties, etc.

Theoretically and practically, this is a fairly common occurrence, but everything initially depends on the nature of the work and the employee’s function. In labor practice, the following categories of people work without any official registration:

• freelancers;
• student interns;
• trainees in companies.

Freelance employees can easily work without an employment contract. They most often do not formalize their employment relationships in any way, since they plan their time and choose orders themselves. They de facto have no employer.

From a legal point of view, this is completely acceptable. In some cases, these may be couriers or assistants of certain specialists.

As for student interns and interns, the law does not oblige them to enter into an employment contract, since everything depends on the will of their superiors. The employer, however, can meet them halfway and conclude an agreement, as well as pay wages.

IMPORTANT! Trainees and probationary employees are different legal categories.

By agreement, an employment contract may not be concluded with any employee. If the applicant is satisfied with such conditions, then he will work in the organization. However, problems with employment may arise in the future, so you need to think carefully about everything.

In any case, the employer is obliged to formalize its relationship with the employee as follows:

1. conclude a government contract;
2. conclude a civil contract (, etc.).

The law provides for situations when, instead of an employment contract, management can enter into another type of agreement - a civil contract.

A civil law contract is far from identical to an employment contract, but is concluded with an employee who, in fact, is not a full-time employee, performs strictly limited functions or works on a specific project (courier, specialist assistant, operator, etc.).

An employment contract is not always concluded immediately and immediately. According to the general rule of Art. 67 of the Labor Code of the Russian Federation, management must conclude an agreement with an employee within 3 working days. This means that an employee can initially work without a signed employment contract, but subject to certain conditions.

In this case, the legislator still believes that it has been concluded; therefore, the employer remains obliged to draw up the agreement in writing as soon as possible.

IMPORTANT! An employment contract is concluded if the employee actually carries out labor activities with the consent or on behalf of management and other responsible persons in accordance with Art. 67 Labor Code of the Russian Federation.

Often in practice it turns out that the employer deliberately hesitates and postpones the conclusion of the contract, citing a probationary period, employee audit, non-payment of taxes or other reasons.

First of all, this is illegal, since an employment contract must be concluded even if the organization has a probationary period and any other cases. If this is just a paid short-term internship, then such an approach on the part of management is acceptable.

Disadvantages of informal employment for an employee

Working without an employment contract is extremely unprofitable for the employee himself. For the employer, this is an opportunity to circumvent the law and avoid liability, while the burden of proof falls on the employee to prove that he actually worked in the organization and has experience.

Without a contract and work book, he is practically defenseless. In more detail, the disadvantages of such informal labor include the following points:

• lack of length of service (experience) recorded in the work book;
• impossibility of making pension contributions to the employee;
• unstable wages;
• lack of guarantees, benefits, bonuses, as well as the opportunity to go on paid annual leave, employment leave, maternity leave;
• there is no social and health insurance for the employee;
• no sick pay;
• dismissal at any time at the request of the employer without following the labor procedure;
• lack of a standardized working day, since the employee is not officially subordinate to the PVTR.

As a conclusion, we can say that there are actually a lot of disadvantages of such work, so the future employee needs to carefully weigh everything. Initially, everything depends on the goal that the employee sets for himself.

If he nevertheless decides to work without an employment contract, then it will not be easy to prove the fact that he has relevant experience with another employer. However, this is possible if you have, for example, .

However, often the employee is not registered at all. And in this case, how can one prove that he worked in the organization at all? Alternatively, you can write a statement to your employer demanding payment of the remaining wages.

You must have a copy of this document with you. Then you need to submit the paper in person to the office, where the relevant employees will register the application and submit it to the employer.

The above actions can also be done via mail with a receipt receipt and a description of the attachment. It is advisable to wait for the official response from the employer, since in any case he will mention in passing that the employee worked in the organization.

As another possible option, you can collect all the remaining documents received during work (orders, powers of attorney from the employer, invoices for goods, contracts, etc.).

This will be a good evidence base for the court. It is also possible to use the fact of photography and video recording, but they rarely help in such matters, because the employer may respond by saying that the employee stole photos from other employees, etc.

ATTENTION! For reinsurance, it is necessary to save or copy all working documents to make it easier to prove in court the fact of work at the enterprise.

Witness testimony is another possible option for proving work in an organization. To do this, you can invite company employees or other persons to the court who can confirm that the employee actually worked in the institution on a regular basis and carried out the instructions of the employer.

What to do if the employer does not conclude a contract?

According to the general rule, Article 67 of the Labor Code of the Russian Federation, the employer must conclude an agreement within 3 days. It is quite possible that some minor difficulties may arise, but if the employer has not concluded an employment contract for a month and is constantly delaying this moment, then the alarm should be sounded.

To solve this problem, you can contact the following authorities:

1. labor inspection;

Labor inspection is the initial stage of an employee’s application to protect their labor rights. This organization exists in every city, which is authorized to initiate administrative proceedings against the employer in case of violations of the Labor Code of the Russian Federation.

You can contact this institution either in person or via electronic application on the official website https://onlineinspektsiya.rf. However, before this you need to register on the government services website. Within 30 days, the request will be reviewed by competent persons and a response will be given.

If the labor inspectorate did not help in solving the problem, then all that remains is to go to court. Moreover, labor disputes are considered only by the district court. To do this, you need to contact a judicial institution of your choice: both at the employee’s place of residence and at the location of the employer.

REFERENCE! There is a special limitation period for labor disputes. The employee must go to court within 3 months from the day he became aware of a violation of his rights in accordance with Art. 392 Labor Code of the Russian Federation.

Article 392. Time limits for applying to court for resolution of an individual labor dispute

An employee has the right to go to court to resolve an individual labor dispute within three months from the day he learned or should have learned about a violation of his rights, and in disputes about dismissal - within one month from the date he was given a copy of the dismissal order or the day of issue of the work book.

To resolve an individual labor dispute regarding non-payment or incomplete payment of wages and other payments due to an employee, he has the right to go to court within one year from the date of the established deadline for payment of these amounts, including in the case of non-payment or incomplete payment of wages and other payments due to an employee upon dismissal.

The employer has the right to go to court in disputes about compensation by the employee for damage caused to the employer within one year from the date of discovery of the damage caused.

If, for good reason, the deadlines established by parts one, two and three of this article are missed, they may be restored by the court.

Responsibility and fine for not concluding a TD

Failure to comply with the norms of the Labor Code of the Russian Federation on the part of the employer usually entails administrative liability. According to Part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, an employer who does not want to conclude an employment contract in writing must pay a fine in the amount of 10 to 20 thousand rubles. Moreover, legal entities pay a much larger fine - from 50 to 100 thousand rubles.

Article 5.27. Violation of labor legislation and other regulatory legal acts containing labor law norms
Part 4

Evasion or improper execution of an employment contract or the conclusion of a civil contract that actually regulates the labor relationship between the employee and the employer:

1. shall entail the imposition of an administrative fine on officials in the amount of ten thousand to twenty thousand rubles;
2. for persons carrying out entrepreneurial activities without forming a legal entity - from five thousand to ten thousand rubles;
3. for legal entities - from fifty thousand to one hundred thousand rubles.

If the employer has already been held accountable for a similar case or still does not intend to enter into an employment contract, then the fines increase (for legal entities - from 100 to 200 thousand rubles), and officials can be disqualified for a period of 1 to 3 years. ex years.

Such tough measures were taken relatively recently, since reluctance to enter into employment contracts has already become a national problem among employers.

Judicial practice

Considering judicial practice, we can come to the conclusion that it is not always the court is on the employee's side. As a rule, an unofficial worker has several requirements for employers in addition to the lack of a contract.

For example, delays in salaries or certain payments, which further complicates the matter. In this case, it is important to collect all possible evidence and involve as many witnesses and concerned company employees as possible.

Any documents can be presented, and even a pass with a photo to the enterprise will do to prove the fact of a working relationship. As a rule, this puts the employer at a dead end.

Previously, the courts refused to satisfy the demands of such persons due to the absence of an order for their enrollment in the state, as well as a position in the staff list. However, this is not a problem, since many positions in a particular company are not listed in the staffing table.

The Supreme Court of the Russian Federation ruled that the absence of an order to enroll an employee in the workforce, as well as a work book and contract, is not a basis for refusing the employee any claim against the employer.

In conclusion, it must be said that working without an employment contract is an extremely risky and dangerous business for the employee himself. If there is the slightest suspicion that the employer is not going to formalize the employment relationship, then it is necessary to immediately contact government authorities, and also collect all available documents at the same time.

The outcome of the court case will depend on whether the employee can collect evidence of the fact of working at a particular enterprise.