What to do if the employer does not formally formalize

Reasons for refusal of official employment

The reasons for hiring without official registration are as follows:

1. Reluctance to pay contributions to the Social Insurance Fund and the Pension Fund. Unregistered employees do not have to pay sick leave even if they provide a sick leave certificate.
2. Possibility not to provide or pay for vacation. It can also be noted here that failure to provide vacation relieves the employer of the need to look for a replacement for the employee on vacation.
3. Possibility of not complying with labor protection requirements and labor law standards.
4. Possibility to threaten dismissal without payment.
5. Reluctance to pay compensation when staffing is reduced.

The consequences of such actions by the employer can cause negative consequences on the part of the employee:

1. The employee is not responsible for poor quality work (for example, when preparing a report to the tax or social security fund).
2. If an employee receives an industrial injury, the organization will be held liable not only for causing the accident, but also for gross violation of labor law and labor protection requirements. Moreover, the punishments in such cases are severe.
3. An employee can leave work at any time without returning the work documents issued to him. However, returning them to the employer will be problematic.

Reasons for employer reluctance

There is not a single valid reason for violating the rights of an employee. And unofficial employment is a punishable violation. But employers justify themselves by motivating their actions with the following reasons:

• saving. For those employees who are not officially on staff, there is no need to pay insurance contributions to the Pension Fund and extra-budgetary funds. In addition, if such an employee gets sick, the employer will not pay him part of the sick leave at his own expense;
• an unregistered employee will not go on vacation;
• having violated labor legislation once, such unscrupulous employers violate it constantly, in relation to “unofficial” ones;
• such an employee can be reduced and fired without paying him a penny.

But the right to work and to receive remuneration for it is the legal right of any citizen! What to do if management is not going to properly register a person for a job?

Alternatives to an employment contract

Many employers try to avoid concluding employment contracts, using other forms of cooperation agreements instead (sometimes justifying this by the fact that a “household” contract will be concluded only for a trial period, and then an employment contract will be drawn up).

The two most commonly used forms of contracts are:

• civil contracts. They allow employers to be exempt from paying contributions to the Compulsory Medical Insurance Fund, not to provide vacation and sick leave, and also to refuse to extend the contract without good reason;
• registration of employees as individual entrepreneurs. In such cases, the employer ceases to be a resident (tax) and is also exempt from social contributions for the employed employee.

If a manager engages a third party as an individual entrepreneur to perform any contract work, this is permitted by law. But if such contractual relationships replace labor ones, there is a risk of liability for this.

What does labor legislation say about unofficial work?

An employed person is a citizen who carries out labor activities on behalf of the employer or his representative (Article 67 of the Labor Code of the Russian Federation). The Labor Code recognizes not only a written agreement, but also an oral one. As stated in part 2 of Art. 67 of the Labor Code of the Russian Federation, an employment contract that has not been formalized is considered concluded if the employee has begun the work assigned to him.

By law, an employment contract must be properly drawn up within 3 days from the date a new employee is allowed to work. The manager or HR specialist must familiarize the employee with the contract, issue an order, and make an entry in the work book.

In the absence of a written contract, the citizen begins work without a probationary period, since the probationary condition must be fixed in a separate agreement before the start of work (Article 70 of the Labor Code of the Russian Federation). An employer who has not formalized the employment relationship properly will incur administrative liability under Article 5.27 of the Administrative Code.

Negative aspects of informal employment for employees

The category of employees who do not work under an employment contract is the most vulnerable under labor legislation. The consequences may be as follows:

1. The employee is not provided with protective materials and means to comply with labor safety standards.
2. In case of illness (or other valid reason for temporary absence from work), the employee will not receive paid sick leave.
3. The employee does not receive paid annual leave (only at his own expense).
4. Employees established as individual entrepreneurs are required to pay their own taxes and contributions.
5. The employer can terminate the employment relationship at any time. There are often cases when the employer does not yet pay wages.

If, when formalizing relations between persons in the form of civil law contracts or individual entrepreneurship, there are signs of labor relations, the employee has the right to file a complaint with the relevant authorities.

Evidentiary aspect of the situation

If you doubt the employer’s intention to provide official employment, you must provide evidence to file a complaint or claim in court.

Documents proving the fact of employment include the following:

• A copy of the medical record or medical examination forms that the employee underwent for the employer;
• An extract from a card or other bank account about the transfer of funds from the employer as payment;
• For drivers, confirmation may be waybills;
• Copies of powers of attorney to receive material resources or execute orders on behalf of the organization;
• Job invitations;
• Copies of working documents containing the signatures of the employee and his manager, as well as other employees of the enterprise.

In addition, if there are CCTV cameras, you can apply for the records as part of legal proceedings or complaints to supervisory authorities.

At the same time, witness testimony can serve as evidence.

Complaint to the court or prosecutor's office

Many people are interested in the question of what to do if an employee is faced with the employer’s reluctance to officially employ the employee and where to complain. There are three authorities:

• court;
• prosecutor's office;
• State Labor Inspectorate.

An application to court to force an employer to conclude an employment contract must be accompanied by the provision of documents that, in the employee’s opinion, prove the existence of an official labor relationship with the employer.

The application is submitted at the location of the employing organization. The elements of the claim are as follows:

1. Name, surname, patronymic of the plaintiff.
2. Name of the defendant organization.
3. Place of registration of the parties.
4. Statement of the problem.
5. Links to legal norms violated by the employer.
6. The essence of the employee's requirements.
7. Date and signature of the plaintiff.
8. An appendix with a list of documents attached to the claim as evidence.

If the lawsuit is a class action, different cases with one employer may be combined into one proceeding.

If you file a complaint with the prosecutor's office, you must write a statement and bring it by hand or by land (e-mail). Often such cases are referred to the State Labor Inspectorate for consideration.

What to do if the employer has not officially hired you?

First of all, you should make a written statement and contact your employer. Such a statement is important in case the employee later has to confirm the fact of his work in court.

In the application, the employee must indicate:

• Name of the organization - employer, its OGRN, INN, position, full name. manager; if the employer is an individual entrepreneur, you must indicate his full name, OGRNIP, TIN;
• FULL NAME. and employee position.

In the text of the document, the employee must indicate on what date he started working and what job duties he performs. It should also be noted that the employer has not formalized an employment relationship with him and demand that this be done immediately.

The application must be signed by the employee and contain the date of its execution. The application must be submitted to the employer or another authorized employee against signature.

If management ignores the application or does not comply with the employee’s demands, then the employee has the right, at his own discretion, to:

• Stop working for this employer, demanding the return of the documents provided to him and payment of wages for the time worked;
• Achieve forced registration for work through regulatory authorities or the court.

It might be interesting!

Financial liability of the employee for damage caused to the employer

Complaint to the state labor inspectorate

Filing a complaint with the state labor inspectorate is considered the fastest and most effective way to resolve labor disputes. Starting this year, the Inspectorate has the right to reinstate workers at work and force the employer to formalize employees.

Applying to the state labor inspectorate occurs in three stages:

1. Drawing up a written statement. It can be sent to the Inspectorate by land (electronic) mail or by hand.
2. Find out from the specialist the date of registration of the application.
3. Wait until the end of the inspection carried out against the employer.

After receiving the application, the labor inspectorate has the right to conduct an unscheduled inspection of the employer.

Based on the results of the inspection, the inspection has the right to take the following actions:

• impose punitive sanctions on the organization;
• force the employer to enter into contracts with informally employed workers;
• report on the results of the inspection to the applicant within the time limits established by law.

Consequences of violations

Violations discovered during the inspection will lead to the fact that the employer and director will be held accountable in the form of fines. The amounts are as follows:

• the director will be fined in the amount of 10-20 thousand rubles;
• if the employer is an individual entrepreneur, then the amount of the fine will range from 5 to 10 thousand rubles;
• if this is a legal entity, then you will have to pay several times more - from 50 to 100 thousand rubles.

The amount will be determined by the inspectors themselves, depending on the “gravity” of the offense.

In addition to the fine, the perpetrators will be required to conclude an employment contract with each employee. A certain time will be allotted for this. If the offender does not correct himself, the amounts will increase several times and the company may be prohibited from operating for some time.

Signs of an employment contract

Employees who want to protect their rights should know what relationships with the employer can be classified as employment. To do this, it is important to study what characteristics a job has that requires the conclusion of an employment contract. These include the following signs:

• the presence of a permanent job function in a certain position;
• payment for labor is made in the process of work, and not for its result;
• the employee has a salary with bonuses and allowances;
• the employee is provided with working conditions, compensation and guarantees;
• the employee must obey the internal labor rules (work in a certain place at a set time).

If at least a few signs are identified during the inspection, the labor inspectorate will recognize such relations as labor relations.

If an employee must perform one-time work (for example, do cleaning or repairs, transport something) or provide services that are periodic in nature, it is not necessary to conclude an employment contract. A civil law agreement is sufficient.

Where to go to protect your labor rights?

In such situations, the legislator prescribes several ways or lines of protecting the rights of an employee whom the employer does not officially register.

On this issue, you can apply for protection of rights:

• To the prosecutor's office;
• Territorial Department of Labor Inspectorate;
• To a court of general jurisdiction.

Naturally, the fact of performing work that is systematic and provides for regular fixed payment must be documented. Otherwise, the statement will be unfounded, and the fact itself may not be confirmed. So, let's consider what to do in such a situation and why it arises in principle.

Responsibility for migrants

Incorrect registration of migrants, that is, foreign citizens, entails even greater liability for the employer.

In the following cases, the director will receive a fine for working with illegal immigrants:

• If the foreigner does not have permission for any type of activity;
• If a special permit has not been issued to attract a foreigner to work;
• If a contract has been concluded with a migrant under which he was not notified of the terms of work;
• When a foreign citizen works in a profession other than that specified in his work permit.

For such labor violations, a fine is imposed on the director in the amount of 35,000-70,000 rubles. The organization will be fined in the amount of up to 1,000,000 rubles, and the operation of the enterprise will be stopped for 90 days.

When hiring foreigners, you should ensure that they are registered. In case of delay, the Federal Migration Service may impose penalties on the employer.

When hiring a foreigner, you should pay attention to a number of points:

• Check the presence of an identity document (passport, refugee card or residence permit);
• Check the initial registration of an illegal immigrant;
• Check the availability of a patent or work permit in a particular area of ​​the Russian Federation;
• Check documents confirming the qualifications of the position held;
• Availability of pension fund and TIN certificates.

No matter what violation occurred, when attracting foreign labor, the fine for unofficial employment is very high.

Therefore, in order to avoid such financial losses for the organization, you should carefully study the legislative framework when registering illegal immigrants.

When auditor organizations detect violations of labor legislation, they draw up an inspection protocol, on the basis of which the amount of penalties is determined.

How to write a complaint correctly?

In order not to rewrite an application submitted to one of the listed authorities, it is important to take into account some rules for its preparation. Namely:

• Minimum subjectivity, maximum objectivity. The violations listed in the application should not be submitted mixed with the expression of one’s own opinion, impressions and feelings;
• It would be good if the described violations were supported by the relevant articles of the Law;
• Announced violations must be supported by evidence (correspondence, copies of documents, testimony);
• The letter must be written correctly, in a business style, without “water”, obscene language, and as briefly and concisely as possible.
• Even if you want to maintain the anonymity of the complaint, you still need to include personal information and contact information in the application in case of feedback.

Responsibility for failure to register employees as legal entities. persons

Legal entities must also be held accountable before the law for failure to formally hire their employees and for violations in the preparation of employment documents.

If such a situation occurs, fines may be imposed directly on the director or HR inspector.

Measures for such violations may include:

• Removal of officials from work;
• Imposition of large fines on legal entities. person in the amount of up to 100,000 rubles;
• Imposition of fines on the head of an organization in the amount of up to 5,000 rubles;
• Suspension of activities for a period of 90 days;
• Criminal prosecution;
• Correctional work;
• Arrest for up to three years.

Such measures can also be determined in the event of incorrect execution of work books and employment contracts.

What kind of violations does the prosecutor's office deal with?

• When an employer does not pay a subordinate for his work for a long time;
• If a manager forces a subordinate to work overtime, while refusing to pay additionally for this time;
• Monetary fines against a subordinate;
• The salary level is below the established subsistence level;
• Psychological pressure on an employee from superiors;
• Unreasonable dismissal;

When contacting the prosecutor's office, you must fill out an application, a sample of which can be downloaded freely on the Internet. The completed application must be taken to the district office. The application must be accompanied by documents that will serve as evidence of the charges described in the application.

The prosecutor's office respects the anonymity of the person making the statement. So if an employee, for personal reasons, does not want his “denunciation” to be known, then the application must clearly state his intention to remain anonymous.

Actions of the prosecutor's office

• Verification of the facts described in the application. Testimony may be required not only from the person making the complaint, but also from other uninterested persons.
• Bringing the perpetrator to justice.

Are loans given to informally working citizens?

One of the conditions for obtaining a loan from many banks is having a work experience of 1 month or more. The larger the loan amount, the more work experience will be required. For banks, experience is a kind of safety net that a reliable employee who has worked in one place for a long time will be able to pay off the debt.

However, some banks allow the possibility of obtaining a loan without proof of experience. As a rule, we are talking about small amounts. But in contrast to this there must be proof of income. For example, if a citizen is not officially registered, then the employer has the right to draw up a letter of guarantee stating that the applicant really works for him and indicate the period of work.

The second option for confirming income is to charge it to a card that is issued to a citizen. The undoubted advantage in this case is that it was issued by the bank from which the loan is requested.

But you need to be prepared for the fact that citizens who do not have an official place of work may have a higher loan rate compared to those who are officially employed. The bank includes its costs in the difference between rates in the event that the debtor is unable to repay the loan.

However, you can agree with the bank to confirm solvency by the presence of real estate, vehicles, etc. in other words, the bank will have something to recover losses from if payments on the loan are not made.