Responsibility of the employer for the unofficial employment of company employees

One of the goals of business is to reduce costs as much as possible. In a number of cases, companies and organizations violate the law. The most common example is the informal employment of employees. Businesses resort to such measures for the following reasons:

• the absence of concluded employment contracts makes it possible not to pay taxes for employees;
• if employees are not on staff, then the employer does not pay contributions to the pension fund, Social Insurance Fund and Compulsory Medical Insurance Fund;
• the administration has no formal obligations to the staff (for example, workers can be laid off without severance pay due).

There are a number of serious risks associated with using this scheme. If the employer is caught in violations, liability for failure to register an employee can bring much greater losses, compared to possible savings on taxes and other payments.

What it is

The concept of “unofficial employment” does not exist in the legislation of the Russian Federation. The Labor Code of the Russian Federation does not provide for legal relations that are not sealed by an agreement between the employee and the employer; therefore, the only correct formalization of such relations is considered to be the conclusion of an employment contract. In other cases, the employee is deprived of his rights.

Important! In accordance with Article 67 of the Labor Code of the Russian Federation, an employment contract must be drawn up no later than three days from the date the employee begins to perform his work duties.

The concept of informal employment is applied in cases where the relationship between an employee and his employer has not been formalized within the period established by law.

Typically, such relationships arise in the following cases:

• the employee is involved outside the staffing table;
• relations with the employee are formalized through the conclusion of a civil contract;
• the citizen performs the duties of a fictitiously employed employee.

Labor relations are not recognized as informal if the employer makes mandatory payments from the employee’s income. Such legal relations are always formalized legally.

How to distinguish official employment from unofficial one?

Everything is quite simple here:

• When officially employed, either an employment or civil law contract is signed. Employment agreements or contracts can be fixed-term or indefinite. In the first case, it is recorded how long the enterprise will require the help of a specialist. Additional data that is indicated in the contract is all the complete legal information about both parties, the conditions for signing the contract, its subject, the amount of payment, the place of business, the start date of work for an open-ended contract, the end date of work for a fixed-term contract.

Often there are episodes when, while working full time, an employee is given a part-time job, or the official salary is paid in the amount of the minimum indicator, and the rest is paid in an envelope. In this case, it is necessary to remember that the amount of wages will directly influence the calculation of pensions in the future.

• Unofficial employment. The agreement is not drawn up and signed by the parties, and no entry is made in the work book. In fact, such an action is illegal.

Reasons for informal hiring of workers

Informal labor relations are beneficial not only to the employer, but also to some extent to the employee himself. This is precisely what explains the popularity of this method of employment.

Positive aspects for employers include all of the following:

• the opportunity not to pay insurance premiums and taxes for the employee. Accordingly, the fewer officially employed employees there are in an organization, the more you can save on mandatory payments to the budget and extra-budgetary funds. The absence of an employment contract allows you to avoid a lengthy dismissal procedure, including notifying the employee in the event of a layoff, as well as paying the compensation required by law;
• it is easier for the employer to find a replacement for a temporarily disabled employee, which avoids losses during downtime. If downtime occurs due to the fault of the employer and not the employee, the organization does not need to pay him wages, as provided for by labor legislation;
• in the absence of official labor relations, there is no need to maintain personnel records, which greatly simplifies the work of management and relieves the employer of the need to prepare certain types of reports;
• among other things, an employer can easily deprive an employee of wages, vacation, sick leave and be confident in his impunity. Unscrupulous employers everywhere take advantage of this, inviting citizens to work, using their labor and then depriving them of monetary remuneration for the hours actually worked.

As a result of such labor relations, the employee is deprived of the right to receive paid time off, so employees cannot go on sick leave, and students cannot go on study leave. And most importantly, such relationships do not entail any legal consequences, therefore, it is difficult for an employee to complain to the authorized state bodies about the arbitrariness of the employer, because formally he does not work.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

Informal employment: responsibility of the employer and employee, payments and punishment

Contract for informal employment Responsibility for informal employment Salary and vacation pay How to punish an employer What you should pay attention to when applying for a job

Often citizens are offered to get a job unofficially. In this case, the employer avoids taxes, and the employee receives wages above the market one. The shadow labor market has reached impressive proportions. Due to the large number of unofficially employed citizens, the budget loses billions in taxes, and the workers themselves lose the right to a pension.

When applying for a job, an agreement must be concluded between the organization and the employee, which stipulates the rights and obligations of each party. We will tell you in the material presented how unofficial relationships are confirmed and what the consequences are.

Contract for informal employment

An employment contract regulates the relationship between employer and employee.

It requires the following information:

Full name of the employee, name of the organization in which the employee is employed, position. It is mandatory that this position corresponds to one of the signatures of the employee and employer contained in the official list.

State bodies control not only the procedure for concluding an employment contract, but also many other nuances. In order to avoid liability, labor relations must be formalized in the manner prescribed by law.

An employer may agree to informal employment for the following reasons:

the possibility of saving money by not paying taxes and deductions from the employee’s salary at unfavorable rates, exercising complete control over the employee, arranged informally.

Informal employment can be beneficial to the employee for the following reasons:

the possibility of evading deductions from wages (alimony, taxes, fees), the difficulty of finding a job with decent earnings and an official conclusion of an employment contract.

Each party benefits from informal employment due to the possibility of receiving a salary in an envelope and avoiding deductions from earnings. Therefore, this type of activity remains in demand. In case of informal employment, the advantages of the employer may include:

non-payment of mandatory contributions to extra-budgetary funds (social protection and pension). For this reason, employers most often deny citizens official registration for work, there is no need for lengthy procedures related to the preparation of documents when hiring and dismissing personnel, the possibility of terminating informal labor relations with an employee at any time after he has completed the required amount of work, no need to notify the employee about layoffs, payment of compensation, no need to draw up documents in the event of hiring another person to perform the official duties of the main employee, who did not perform them for reasons beyond his control, no need to pay for time - for example, when equipment malfunctions.

When working informally, a worker can receive the following benefits:

improvement of financial situation due to receiving a larger salary, from which there will be no need to pay personal income tax (NDFL) and make contributions to extra-budgetary funds, no grounds for prosecution in the event of material damage, the possibility of evading obligations related to payment alimony and other amounts, the opportunity to earn money when it is impossible to officially find a job. For example, in case of urgent need for money, when the main employer prohibits the second official conduct of business. Typically, this type of activity is most in demand among pensioners, women on maternity leave and the disabled. Responsibility for informal employment

After hiring a new employee, the period for drawing up an employment contract is three days. Responsibility for the correct maintenance of documentation for providing a workplace to a newly hired employee rests with the director and specialists involved in personnel selection (in case of minor violation of legal requirements, they are not personally responsible for this violation).

Employer

In case of violation of legal requirements regarding the procedure for employing employees, the employer may be held liable in the form of:

administrative fine, the amount of which is 50 thousand rubles, suspension of activities for an unspecified period, deductions of funds to the budget in the amount of 20% based on a resolution of the tax authorities, a fine in the amount of 100 to 300 thousand rubles. in accordance with the Criminal Code of the Russian Federation, as well as imprisonment for up to 2 years. Employee

When unofficially registered, there are the following risks for the employee:

the possibility of non-payment of wages for work performed, the employer’s refusal to provide leave, refusal to pay sick leave, deprivation of social guarantees that are provided by the state when formalizing labor relations. Salary and vacation pay

With informal employment, there are risks associated with non-payment of wages and vacation, sick leave and maternity leave. When officially applying for a job, you will be paid:

sick leave.

One-time payments in the form of bonuses and incentives are also provided.

In this case, the employee must perform his duties according to the schedule specified in the employment contract and receive a fixed salary. It is also mandatory to make contributions to the pension fund and the tax service.

In case of illegal employment, an employee may be involved in performing work duties during non-working hours, but these hours may not be paid by the employer.

Unlike official employment, when an employee can count on the observance of his rights, and if problems arise with the payment of wages, he can contact the relevant regulatory authorities, when applying for a job illegally, it is difficult to appeal against the illegal actions of the employer.

How to punish an employer

If the employer refuses to officially register for a job, it is necessary to warn him about liability for violating legal requirements. If these requirements are ignored, the citizen must:

contact the Labor Inspectorate - write a complaint or make an anonymous call to the citizen complaints service. When citizens apply, the Labor Inspectorate conducts an inspection, as a result of which the employer may face punishment or complain to the tax office. In such cases, an audit is usually carried out, as a result of which tax officials can establish the fact of underpayment of taxes, which will entail the imposition of sanctions on the employer. file a claim in court. You will also need to collect and submit to the court evidence confirming your own employment. To do this, it is necessary to have a pass to the workplace or other papers issued to the employee in the accounting department, which he can provide as evidence of his performance of work for a specific employer. The witnesses named in the claim, regardless of their will, must appear at the court hearing to give truthful testimony. What should you pay attention to when applying for a job?

When hiring a new employee, some employers do not refuse registration, but resort to tricks. This may be necessary to use free labor for a short period of time.

It is necessary to pay attention to the following points:

impossibility of the director signing the contract due to illness or being on vacation, requirement to rewrite the application submitted three days ago due to errors and put today’s date, refusal to register on the day of application due to the heavy workload of the accounting department (filing reports, audit), proposal work for a certain time on a probationary period for the employee to evaluate his own capabilities, make a final determination with the choice of vacancy, evaluate the company’s management, with a promise to employ the employee later in accordance with the requirements established by law.

To avoid committing illegal actions when applying for a job, you should not:

naively believe promises, ignore bad reviews, refuse to protect your own rights.

Before applying for a job, you need to evaluate the disadvantages and advantages of a specific vacancy. Even if there is an urgent need for employment, you should not agree to the conditions under which you can become a free labor force.

For all questions related to the liability of the employer and employee in an informal arrangement, you can consult our lawyers. The provision of services by specialists will help to avoid significant material losses in the event of non-payment of wages, vacation pay and other payments by the employer, as well as to punish an unscrupulous employer.

Risks for the employee

Unofficial employment relationships primarily deprive the employee of the rights provided for by current labor legislation; in particular, the employee risks:

• remain without monetary reward;
• lose vacation;
• receive a refusal to pay for sick leave;
• lose all social guarantees in the future, in particular pensions.

Of course, the last word remains with the citizen. If a person decides to work informally, he must understand all the possible consequences of such a decision. There are often situations when the imaginary benefits do not cover the risks of such labor relations.

Who is responsible for informal employment?

Penalties are imposed on a legal entity and, depending on what legal form they have, the amount of the fine may vary. Let's consider what fine is imposed on a legal entity.

LLC liability

The procedure for calculating fines.

Fines for LLCs are imposed in accordance with Article 5.27 of the Administrative Code. According to the article, large fines are imposed on the director of the enterprise, and in the future the director can be dismissed from office.

The amount of the fine in some cases can reach up to 100 thousand rubles. If obligations are not fulfilled, the director or employee who is involved in personnel work in the LLC may be subject to criminal liability.

Corrective labor or a term of 2 years in prison may be imposed. Such measures may be taken in the event of a first violation. If this attitude towards registration of employees subsequently continues, then the measures will be tightened.

Responsibility of the individual entrepreneur

If violations related to labor legislation are detected, then a fine of up to 5 thousand rubles is imposed on the owner of the individual entrepreneur. The activities of an individual entrepreneur may be suspended for 90 days.

If a situation is identified where an employee has been working at this enterprise for several years and taxes are not paid for him, then the owner of the individual entrepreneur faces criminal liability.

Probation

Practice shows that unscrupulous employers, as a rule, offer not to conclude an agreement during the probationary period. Article 70 of the Labor Code of the Russian Federation allows the establishment of a probationary period for newly hired employees.

However, it is important to know that establishing a probationary period does not prevent the conclusion of an agreement between the employee and the employer.

A person decides for himself whether to get a job under the conditions offered by the employer. You can work for a probationary period, take a closer look and find out how the organization treats its employees, whether it violates workers’ rights, and then make a final decision. True, in this case no one guarantees the subsequent employment of the employee.

Pros and risks of working without registration under the Labor Code for the employee and employer

Informal registration has both advantages and disadvantages for both parties.

Advantages of working without registration under the Labor Code of the Russian Federation for an employee

Let's consider what advantages an employee may have if he or she is registered informally:

1. The employee does not have to pay taxes.
2. Interest on alimony payments is not debited from the citizen.
3. It does not pay other government fees.
4. There is no legal liability for the work.
5. Pay is higher than in official employment.
6. He can work in his free time, when it is convenient for him. For example, this is important for students who cannot always work 8-10 hours.
7. As a rule, there is no financial liability either.
8. Documentation is minimal. Usually the employer asks for a copy of your passport, or even he doesn’t need your documents at all.
9. The possibility of receiving piecework wages, that is, for what was completed or for the hours worked.

There are also positive aspects for the employer:

1. There is no need to keep full accounting records.
2. There is no need to deal with employee registration.
3. You don’t have to pay taxes or pay other fees.
4. Obtaining complete power over the employee. An employer can manipulate a specialist, because he is paid a salary, and, as a rule, it is paid according to the mood of the employer.
5. The opportunity to shift onto the shoulders of such employees many responsibilities not only for one position, but for several at once. For example, a sales consultant is involved in cleaning the premises, loading and unloading goods, cash transactions and other work. In fact, the employer will be responsible for his actions not before the law, but only before the employee.

Disadvantages of informal employment for workers

There are plenty of disadvantages to such employment. Let's consider what negative consequences can come from unofficial work for an employee:

1. Possible encounter with fraud and non-payment of money for work, delay in payment.
2. Impossibility of receiving money for sick leave, maternity leave, regular leave.
3. Receiving the amount agreed upon by the employee and the employer, without allowances, bonuses, etc.
4. Failure to pay processing fees.
5. No length of service is accrued, which would subsequently affect pension payments.
6. Impossibility of obtaining financial compensation in case of unexpected injuries.

How to fill out an application to establish the fact of work - sample and example of a ready-made application

In fact, the employer is not obliged to conclude an employment contract - but the risks for him for such employment are even greater than for the employee. The penalties are more serious and are associated with violation of Russian legislation.

Administrative penalties for the employer

In accordance with Article 5.27 of the Code of Administrative Offenses of the Russian Federation, punishment for violation of labor laws can be different.

Penalties for failure to comply with tax laws

The employer is obliged to pay taxes for the employed employee upon registration. For failure to fulfill obligations - failure to withhold or remit taxes, he may be fined.

The amount of the fine is 20% of the established amount that the employer should have withheld.

The same applies to incomplete transfer of taxes (Article 123 of the Tax Code of the Russian Federation).

Criminal penalties

An employer who fails to fulfill its obligations as a tax agent may be subject to criminal liability. The unpaid amount and its size are taken into account.

For example, they may be sent to serve a sentence behind bars for 2 years if the amount of non-payment is large - or for 5 years if the amount is particularly large.

This punishment includes a ban on activities and payment of a fine.

Arrest and forced labor can also be imposed on a citizen (Article 199.1 of the Criminal Code of the Russian Federation).

Penalties for non-compliance with pension legislation

The employer may be fined an amount equal to 10%, calculated from the reporting payments for the year.

This is stated in Federal Law No. 27 “On individual (personalized) accounting in the compulsory pension insurance system,” approved on April 1, 1996.

Where to complain

A reasonable law-abiding person should not and is not obliged to agree to informal employment relationships. Otherwise, it is easy to become a victim of an unscrupulous employer who will subsequently refuse to pay the employee.

In such situations, it is very difficult to prove that a citizen fulfilled his labor duties. If arguments are nevertheless found, this can only be done through judicial proceedings.

Officially unemployed workers, finding themselves in such situations, have the right to file a complaint with the authorized government bodies.

In case of arbitrariness of the employer, you can contact the following government authorities:

• State Labor Inspectorate;
• the prosecutor's office at the employee's place of residence or the location of the organization or individual entrepreneur;
• tax service at the location of the employer;
• court with a claim against the organization.

It is recommended to complain about the arbitrariness of the employer

Industrial conflicts can be of all kinds. And sometimes employees come across such that the management grabs their heads, and the employer often allows himself too much, having finances, connections and administrative resources.

A hired worker goes to work, needing money, and does not have strong defenders behind him. He is vulnerable, and in a conflict with the employer he is most often the injured party. Finding himself in a stalemate, a person does not know where to turn, while in the Russian Federation there are government agencies that he can count on.

Where do we complain and for what reasons?

A conflict with an employer is sometimes so serious that it cannot be resolved peacefully. This is where third-party assistants, especially those in authority, come in handy. These are the labor inspectorate, the prosecutor's office and the court.

These are the main reasons why people go there.

• The employer does not want to enter into an employment contract with the employee.
• Pays money "in black".
• Delays wages or underpays.
• There is a delay in paying sick leave or vacation pay.
• Fires illegally.
• Delays the calculation and issuance of a work book upon dismissal.
• Otherwise, it violates the Labor Code of the Russian Federation.

How to file a complaint and what we expect from it

Whatever authority the employee applies to, he does so in writing. The text of the document must clearly and clearly state the facts, indicate dates and attach evidence, in paper or electronic form. If you contact Rostrud, you can use the portal “Onlineinspection.rf”, it allows you to track the fate of the request.

Anonymous letters are not accepted; you must provide your personal information and contact information. Every complaint must be answered.

If you contact the labor inspectorate, the answer will be a visit of inspectors to the enterprise. They will appear within a month and check the facts. The same period is given to the employees of the prosecutor's office; they, for their part, first check and then react.

The court, as the last resort, considers the employee’s claim against the employer. It can be submitted until 3 months have elapsed from the date of violation. All evidence is attached to the case, including the results of previously taken measures. Both the prosecutor's office and Rostrud present to the court the evidence they have collected in the case, presented as the results of an audit.

The employee hopes that the employer will be ordered to correct the violation. For example, reinstatement at work, pay off everything you owe, and so on.

Working in the dark today can be dangerous

If a person agrees to receive a salary in an envelope, then he puts himself in an obviously losing position. The employer receives almost unlimited power over him: if he wants, he will start paying less, or not pay at all. It will be very difficult to prove that you were not paid for your work. There are no documents, none of my colleagues will come as witnesses.

The only effective way is to contact the tax office, or at least intimidate the employer. If the tax authorities receive a complaint, they will begin checking the employer no later than in a month. However, in this case, not only the owner of the enterprise, but also the complainant himself may suffer.

The tax office is interested in deductions from wages, which should be sent to it. And here questions may arise for the employee. Did he know that the employer does not make deductions from his salary and does not pay taxes?

If he knew, he had to do it himself. If he didn’t know, then bribes are cleared from him, and all the blame falls on the employer.

Based on the results of the audit, tax authorities may come to the conclusion that the employee was in collusion with his employer, and both deliberately did not pay taxes. The consequences for both will be sad: Art. 199 of the Criminal Code of the Russian Federation - for the employer, and for the employee - Art. 198, as amended in April 2021.

It says that if a citizen did not pay personal income tax and did not indicate income in the declaration, then he will have to pay, in addition to the tax, a fine and penalties. The fine will be 100-300 thousand rubles, the violator will face either forced labor, arrest for six months, or imprisonment for up to 1 year - at the choice of the court.

To the Prosecutor's Office

The main function of the prosecutor's office is supervision of compliance with current legislation on the territory of the Russian Federation. Prokurorsk

All branches of law, in particular labor law, are subject to such control. Based on a complaint received against an employer, prosecutors carry out an inspection and issue an order obliging them to eliminate violations of the provisions of the Labor Code of the Russian Federation identified during the inspection.

The appeal must include the following information:

• full name and address of the authorized body;
• information about the applicant;
• employer data, including name, legal and actual address;
• the essence of the conflict that arose with the employer;
• a request to eliminate violations, as well as to protect and restore the applicant’s rights;
• day, month and year of document preparation;
• personal signature and contact information of the employee.

Watch the video. Unofficial employment. Gray salary:

Law on unofficial work

In the Russian Federation, attempts are periodically made to legalize informal income, carry out preventive measures and punish for improper registration of personnel.

But not a single legislative act defines what exactly is informal employment. The Labor Code of the Russian Federation prescribes “how to properly register” an employee for work, and the Code of Administrative Offenses of the Russian Federation, the Criminal Code of the Russian Federation, and the Tax Code of the Russian Federation establish measures of liability for the lack of official labor relations.

Yes, Art. 67 of the Labor Code of the Russian Federation obliges to conclude an employment contract with a potential employee, which reflects his rights and obligations and clearly limits the functionality.

In case of unofficial employment, the parties do not sign documents, there is no order to accept the position, and there is no entry in the work book. In this case, other regulators enter the process, stimulating compliance with the normal working conditions provided for by law.

To the Labor Inspectorate

The powers of the State Labor Inspectorate are similar to those of the prosecutor's office. This government body also monitors compliance with current labor legislation and promotes the protection and restoration of violated rights of citizens.

The difference is that the labor inspectorate has a narrower specialization in jurisprudence; its powers are exercised exclusively in the field of labor law. You can complain to the inspectorate about any unscrupulous employer, be it a public service, a private company or an individual entrepreneur.

Filing a complaint is possible in any way available to a citizen: during a personal visit to the territorial office of the inspectorate, by mail or through the official website of the authorized body.

Filling out an appeal is permitted in any form with the mandatory inclusion of the following information:

• about the employer and his management;
• what is the violation of the applicant’s rights;
• what the applicant sees as a solution to his problem;
• arguments in favor of the stated claims.

Attention! In addition to the complaint itself, it is necessary to provide all available documentary evidence of the facts stated in the document.

How can an unofficial worker protect his rights?

Unfortunately, the lack of direct legislative protection of the rights of citizens hired without official registration provokes some particularly cunning entrepreneurs to try to turn people into a free resource. In this regard, deceived employees periodically have a question: what to do if the work is unofficial, and the company refuses to pay the money? Restoring justice is difficult, but possible:

1. If the employer does not inspire confidence, it is advisable to take the trouble to collect evidence. The easiest way is to take a photo of yourself in the workplace, against the background of equipment and colleagues, make video recordings of the process or your communication with other employees;
2. It is also worth trying in advance to find witnesses to your performance of official duties. This can be anyone who confirms that the specialist is at the workplace - a partner, a buyer, a supplier, a clerk from a neighboring office;
3. It is useful to make copies or photographs of any company documents that mention the last name and other data of the employee, there is his signature - invoices and acts, invoices and powers of attorney, envelopes with salaries, correspondence on a smartphone;
4. If problems arise with payments, you need to bring your demands to the employer and notify him of your desire to seek restoration of violated rights. It is better not to talk about the presence of evidence for now, so as not to destroy it;
5. If there is no result, you must send an application and evidence of your work to the Labor Inspectorate. Claims against the company should be stated specifically - that is, the amount and responsibilities for which it is owed should be named;
6. The labor inspectorate must make a decision within 30 days. If the application is refused, a similar package of documents must be submitted to the local prosecutor's office, although to guarantee it is sometimes advisable to contact both authorities at the same time;
7. Additionally, it is recommended to file a complaint with the tax office. This will not help paying money to an unofficially employed person, but it will significantly ruin the life of a dishonest employer - up to the seizure of accounts and suspension of activities;
8. The next step is to send the pre-trial claim to the employer by mail or courier service. It does not have legal force, but in the future the employee will benefit from the fact that the company received it, the lack of response or an official refusal;
9. Next, the citizen has three months to appeal to a court of general jurisdiction. The claim should also list your claims and provide detailed information about the company. You can also demand reimbursement of legal fees and monetary compensation;
10. An unsatisfactory decision of a judge can be appealed to higher authorities. But if it is positive, you need to obtain a writ of execution from the office and transfer it to the Bailiff Service, which will collect the debt.

To the Tax Inspectorate

It is the direct responsibility of the tax authorities to identify and punish employers who pay unsavory wages to their employees. If such facts are discovered, the tax office has the right to apply certain sanctions to the employer.

The law does not provide for a special sample of a complaint to the tax office, so filing an appeal is allowed in any form.

It is important to include the following information in your complaint:

• full name of the tax office unit with which the employer is registered;
• full name and legal address of the organization. If possible, indicate the TIN and OGRN (OGRIP) of the employer;
• comprehensive information about the applicant (last name, first name, patronymic, address, contact phone number, you can also indicate an email address);
• personal signature of the employee and date of preparation of the document.

The text of the appeal must describe in detail the essence of the conflict, justify your position and ask the authorized body to verify the stated facts.

Articles 122 and 123 of the Tax Code of the Russian Federation provide for punishment for employers who violate the requirement of tax legislation on the mandatory payment of taxes. In addition, an employer who has unemployed workers on staff is punished with a large fine for evading payment of insurance contributions to extra-budgetary funds.

Based on the facts of violation of the current legislation set out in the complaint, the tax authority holds the unscrupulous employer administratively liable and imposes a penalty in the form of a fine.

Why an employee may not be officially registered

Reasons for informal employment.

Among the reasons why an employee is not formally registered, there are positive aspects for both parties.

Among them:

• The organization saves quite a small amount when paying taxes. For an employee who is not officially registered, the company does not make contributions to the Tax Authority or the Pension Fund. Even insurance premiums are not paid;
• if you are a payer of alimony, then you will not be able to officially pay it, since it is not formalized, and then you will have to pay not 25% of the awarded, but the minimum amount for child support established in your region;
• Neither the employee nor the employer is responsible. Therefore, the employer may not pay wages, and the employee, in turn, may not go to work and will not be able to receive such a record as absenteeism or a reprimand.

As a rule, if an employee works unofficially, then his salary is much higher than that of someone who is officially registered.

To the judiciary

If there is no positive result, the employee whose rights have been violated has the opportunity to file a claim in court. To protect violated rights in court, the plaintiff will need documentary evidence of the employer’s guilt, as well as testimony of witnesses who can confirm the plaintiff’s arguments and the fact that he worked for the defendant.

When going to court, an employee has the right to file claims for recovery of unpaid wages and legal costs, including legal fees. If the claim is successful, the burden of paying the collected amounts falls entirely on the defendant.

In addition, Article 236 of the Labor Code of the Russian Federation provides for the possibility of collecting interest for late payment of wages in the amount of 1/300 of the refinancing rate established by the Central Bank of the Russian Federation for each day of delay.

In accordance with Article 28 of the Civil Procedure Code of the Russian Federation, a statement of claim with demands against the employer is filed at the location of the organization.

The claim must indicate:

• full name and address of the court;
• information about the plaintiff and defendant (name of the organization, legal address, position of the plaintiff, start date of employment with the employer);
• a statement of the circumstances of the conflict;
• requirements imposed on the defendant;
• date of filing the claim and personal signature of the plaintiff;
• list of documents included in the application.

In this case they will help you

1. Colleagues.

Talk to your colleagues - perhaps someone will agree to testify in court in your favor. But most likely, the company's employees are in the same precarious position, and any action against the boss threatens them with the same consequences.

2. Bank account statement

If the employer regularly transferred the same amount to your card, then a bank account statement will help in court to prove the fact of payment for the work performed.

3. Smartphone

The phone may contain correspondence with the manager, which will also serve as evidence in court.

Thus, in one of the disputes regarding the establishment of labor relations, “printouts on the social network “VKontakte” with notarized screenshots from an Internet page” were some of the evidence on the basis of which the court satisfied the employee’s demands (Appeal ruling of the Volgograd Regional Court dated May 24, 2018 to case No. 33-6786/2018).

The court may consider “screenshots from the social network Instagram”, “e-mail correspondence and audio recordings of voice messages in a group created by the employer in the WhatsApp messenger”, in which the parties discussed the schedule for receiving clients for the massage procedure, work schedule, order and the amount of wages paid for the massage sessions performed" (Appeal ruling of the Omsk Regional Court dated November 28, 2018 in case No. 33-7850/2018).

Currently, there is quite an extensive and diverse judicial practice in labor disputes, in which data from social networks or instant messengers is used as evidence.

Correspondence between an employee and an employer in disputes about establishing the fact of an employment relationship should indicate not only that such an employee was hired by this particular employer, but also that:

• the employee is allowed to perform a predetermined job function;
• the employee has become familiar with the internal labor regulations and obeyed them;
• The employee was given a specific amount of wages that he would receive for his work.

4. Company documents, waybills, goods and invoices, which you signed in your own hand, are also suitable.

If the evidence is collected in the form of screenshots, it is better to have it notarized. Otherwise, the judge may have doubts.

So, if the evidence has been collected, you can file a claim in court with the following requirements:

• establish the fact of labor relations;
• draw up an employment contract and make an entry in the work book;
• recover wages and compensation for delays;
• pay compensation for moral damage;
• recover the average salary for the period of inactivity - from the moment of dismissal until the court decision comes into force;
• recover legal costs when drawing up a claim by a lawyer.

You can prove the amount of your salary with a bank account statement, if the employer transferred the salary to the card, with an accountant’s testimony, or with a screenshot of a vacancy from the company.

If you cannot provide such evidence, provide statistics from websites about the salary of a specialist for the same position.

Remember, the fact of establishing (coordination) of wages in the amount declared by the plaintiff is subject to proof by the plaintiff in accordance with Art. 56 of the Code of Civil Procedure of the Russian Federation, however, if such evidence confirming the fact of setting the salary is not provided to the court, then the arrears of wages can be recovered based on the amount of the minimum wage.

How to confirm an employment relationship

The need to confirm the absence of an officially registered employment relationship usually arises when an employee applies to the prosecutor's office, labor inspectorate or judicial authorities.

The following are considered as evidence of this fact:

• testimony of witnesses, for example, the same employees of the organization, ready to confirm that the applicant actually carried out labor activities during a certain period;
• video materials recording the work process in which the applicant took part;
• documentary evidence of performance of labor duties, for example, invoices or other documents signed by the applicant;
• a bank statement containing information about the receipt of monetary remuneration from the employer to the applicant’s account.

Remember! All evidence presented by the employee must connect two indisputable circumstances: the fact that the employee actually carried out labor activities in a specific organization, and the fact that it was this organization that gave him the authority to carry out this type of activity.

It is important to understand that the burden of proof lies entirely with the employee. The employer is not obliged and is not interested in presenting evidence of his guilt.

This is worth thinking about at the hiring stage, because by agreeing to unofficial registration, both the employee and the employer violate the requirements of the law.

Pros and cons of the situation

Naturally, both employees and employers derive considerable benefits from the existing action plan. It often happens that the employee himself is satisfied with working not under a contract, without an entry in the work book. Very often this is the sin of people doing work without a specific education. Those who are mired in loans and do not want to pay them off from their hard-earned funds are prone to such actions. This option is also relevant for people who pay alimony and do not want to give up part of their earnings to provide for their children.

Of course, nowadays you can easily take out a loan with informal employment, but the amount for it will be much less. This also needs to be remembered, because no bank will take risks if it is not sure that its funds will be returned with interest.

A salary in an envelope does not always lead to success

However, there are cases when it is more than beneficial for both the employee and the employer to cooperate informally. A striking example is networking. In fact, it will be impossible to prove the provision of services to a certain party or the receipt of funds from it. There are certain risks in this area, since the employee and the employer do not meet in reality.

On the other hand, this approach will be ideal for many people who do not have the opportunity to work even part-time in other organizations. This includes pensioners, students, mothers on maternity leave, disabled people, people who do not have the right to conduct parallel activities in two or more organizations.

Before starting work, you need to make sure that payment for the activities carried out will be provided in full, just as the services promised by the contractor will be provided in full.

How to force an employer to enter into an employment contract

How to force an employer to conclude an employment contract? There may be several options: talk to the employer about this and ask to draw up an agreement; complain about the employer to the labor inspectorate or the prosecutor's office, this may lead to a positive result; Well, the most effective option is to go to court and force the employer to enter into an agreement. Who will win in court depends on the circumstances of the case.

As a general rule, if a person finds out about a vacancy and comes to the employer to get a job, but the employer does not hire, does not want to enter into an agreement with a potential employee, then it is almost impossible to force the employer to enter into an agreement, since the employer himself decides who to hire. work and who doesn't.

However, if the employer refuses to hire on some discriminatory grounds, i.e. doesn't want to take a woman, because... she may become pregnant, does not want to hire someone who is overweight, etc., then in this case it is necessary to try to document the grounds for refusal to hire, which are not related to the professional qualities of the employee, and go to court to force her to conclude an employment contract .

It is worth remembering that certain professions have requirements for appearance, for example, flight attendants, and therefore refusing to hire a person who, for example, has moles or scars on the face, will be completely legal.

And if the employee is actually allowed to work, but the contract is not concluded, in this case, also through the court, you can oblige the employer to conclude an employment contract, but it will be necessary to prove the existence of an employment relationship.