Is it possible to work without an employment contract?
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 to 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:
- conclude an employment contract or government contract;
- conclude a civil contract (contract, commission, agency agreement, 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.
Employer's liability
An official faces a fine of up to twenty thousand rubles (in relation to each “unofficial” employee), and a legal entity faces a fine of up to one hundred thousand rubles, with the obligation to compensate the employee for his entire “shadow” period of activity.
The fact that an employee does not have an employment contract can be established not only by the court, but also by a labor inspector. In addition, the tax authority can get involved and calculate taxes, fines and penalties, and if the amount is more than one and a half million rubles, then contact law enforcement to initiate a criminal case.
If a manager does not pay part of the salary for more than three months or all of the salary for more than two months, he may be prosecuted and, as a result, imprisoned for up to five years.
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 employee has the burden of proving 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, a civil contract.
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 list of attachments. 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.
Consequences for the employee
An employee, without insisting on concluding an employment contract, punishes himself, because in the future this may result in a lack of social support, the opportunity to go on vacation, receive severance pay and labor exchange payments, and in the future this will negatively affect pension security.
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:
- Labour Inspectorate;
- court.
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 through an 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 does 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.
In connection with changes to the Code of Civil Procedure of the Russian Federation dated December 3, 2016, such workers can now apply to their local district courts to resolve labor disputes. This makes the task much easier. Then you need to draw up a regular claim in writing, which must meet the requirements of Art. 131 Code of Civil Procedure of the Russian Federation.
All documents are attached to the claim. Next, the court considers the case and can make a decision in favor of both the employee and the employer. It all depends on the evidence presented.
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.
How to confirm the fact of an employment relationship
Evidence may include:
- witness statements;
- order for admission to the organization;
- local acts confirming the fact of the employee’s presence at the enterprise;
- certificates, salary receipts, receipts.
To do this, you can try contacting the HR department or the accounting department (or the person who issues wages) and say that documents from your place of work are needed to apply for a mortgage.
What is the probability of verification
There is currently a moratorium on scheduled inspections of small businesses; Federal Law No. 480-FZ dated December 25, 2018 extended it until December 31, 2021. But the moratorium does not protect against unscheduled inspections.
The reason for unscheduled inspections of the State Labor Inspectorate is most often a complaint from an employee.
Judge for yourself how likely these risks are. According to Rostrud statistics, in the first half of 2021 (data for the second half of the year is not yet available) only 1% of the total number of legal entities and entrepreneurs were checked. But at the same time, 93% of all inspections were carried out unscheduled. And in 69% of cases, the basis for the inspection was someone’s statement or receipt of other information about a violation of the labor rights of citizens. Violations were detected in 67% of inspections. The figures for the whole of 2021 are close to these figures.
In other words, an inspection can be provoked by any conflict with an employee if he complains in retaliation that the employment relationship with him was not formalized as expected. No one is immune from this risk.
In addition, nothing prevents an employee from going to court and demanding that your relationship with him be recognized as an employment relationship. This usually happens when the actual employee demands any guarantees provided to him by labor legislation, and the actual employer denies him this.
This is important to know: Labor function in an employment contract: sample 2021
Where can I complain about illegal actions of my employer?
You can complain about your employer to the prosecutor's office or the labor inspectorate. An employee can also complain to both authorities at the same time. Applications to Rostrud and the Prosecutor's Office are drawn up according to the same principle.
They should contain information:
- About the applicant - employee (his full name, telephone number, email and postal address);
- About work (where, from what time and for what position he performs his labor function);
- About violation of the Labor Code of the Russian Federation on the part of the employer (what exactly is expressed);
- How are the stated circumstances confirmed?
- A requirement for the supervisory authority to conduct an inspection and give the employer an order to eliminate violations;
The application is signed by the employee. You can send it via the Internet, by mail, or submit it directly to the regulatory authority.
What to do first?
If any of the employees in your organization do not have a written employment contract, this could be a source of trouble for you. It is quite possible that this fact will be discovered during an inspection by the State Labor Inspectorate, and then the head of the company, the head of the personnel department or another responsible employee will be fined for violating Article 67 of the Labor Code in the amount of 1,000 to 5,000 rubles (Article 5. 27 of the Code of Administrative Offenses of the Russian Federation).
Of course, the employment contract with Margarita should have been concluded back in 1992. And since the employer has not fulfilled this requirement to date, the situation should be corrected as soon as possible. But first, Nina, as a new employee accepting cases, must reflect the absence of an employment contract with Margarita A. in the act of acceptance and transfer of personnel documents, and then write a memo addressed to the general director of the organization to inform him of the results of the transfer of cases.
If Nina does this, she will not be responsible to management or inspection bodies for the mistakes of the personnel officers who worked before her and ignored this situation.
An agreement is not a sentence
Nina followed her colleague’s recommendations and completed all the missing documents as soon as possible. Fortunately, Margarita treated the situation with understanding, but it often happens differently. Workers who are accustomed to working without contracts do not agree to conclude them, believing that this will somehow limit their freedom in relations with the administration.
In this case, there is only one piece of advice: to convince the employee that a written employment contract, on the contrary, serves as a guarantee of strict observance of his rights, makes labor relations more transparent and allows the parties to more easily agree on improving working conditions. If the employee categorically refuses to enter into an agreement, we recommend drawing up a statement about this.
To avoid the situation we described, we recommend periodically auditing personnel documentation. This will allow HR to identify and correct such errors in a timely manner.
And how are you?
We asked employers: do you have employees in your organization who work without written employment contracts?
Ksenia Pavlovna, HR specialist, commercial kindergarten (St. Petersburg):
– We have a newly created organization, and all employees have employment contracts. In order not to forget about this, we keep a log of employment contracts, where we enter the date of conclusion of the contract, its number and ask the employee to sign for receipt of his copy.
Svetlana, HR manager, consulting company (Volzhsky):
– A couple of years ago, we accidentally discovered that three employees (the first persons of the company who have worked since its founding) did not have written employment contracts. We signed contracts with two of them on the current date, but one employee refused - no arguments helped. I had to draw up an act of refusal to conclude an employment contract.
We hope that this will remove responsibility from the personnel service in the event of an inspection by the State Labor Inspectorate.
Yulia, HR inspector, retail trade organization (Perm):
– At one time, our general director delayed the signing of employment contracts - they could lie on his desk for weeks. The workers asked why they were working without a contract, were indignant, and threatened to complain. Then we wrote a memo to the director asking him to speed up this process. Now the terms for concluding employment contracts are within the framework of the law.
Olga GUREVSKAYA, leading specialist of the personnel department of Sigma LLC, group:
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Attention!
Due to recent changes in legislation, the legal information in this article may be out of date! Our lawyer can advise you free of charge - write your question in the form below.
How to find out whether the employer has officially registered an employee?
The Labor Code of the Russian Federation obliges the employer to formalize an employment relationship with the employee before he officially starts work.
The official registration of an employee is evidenced by:
- The employer's requirement that the employee provide documents, including a passport, SNILS, work book, etc.;
- Concluding an employment contract with him;
- Making an entry in the work book or registering a new one;
- Registration of a personal card;
- Familiarization with signature with labor regulations and other local acts;
- Formation of a personal file.
If the employer does not take these actions, the employee should raise the issue of official employment.
Natalia
Labor expert
Expert advice! Sometimes, employers create the appearance of official registration by concluding an employment contract with him. But at the same time, no deductions from his earnings are made to the Pension Fund. Based on this, I recommend that from time to time you request a personal account statement from the Pension Fund and check the availability of deductions from the employer.
