Registration of employment is not always a quick procedure. Sometimes it is necessary to carry out a number of approvals of the employment contract both on the part of the administration and on the part of the employee. At the same time, the latter is already starting his working career. The formal start of work is the hiring order signed by the head of the company (authorized person).
We propose to look at how the procedure for drawing up a written employment contract should take place, what responsibility awaits those who are trying to conclude a contract retroactively, and whether this can be done.
Risks and consequences of signing (non-signing) an agreement
Signing a contract retroactively: risks
In order to fully understand the consequences of untimely execution of written employment agreements and their subsequent signing “retroactively,” we suggest considering the possible consequences of such actions.
According to administrative legislation, an untimely signed employment contract may result in the imposition of a fine on the administration (the person authorized to sign such contracts) in the amount of one to five thousand rubles. If the guilt of a legal entity and not a specific employee is proven, the fine can be up to 50 thousand rubles or up to the suspension of business activities for three months.
What's wrong with backdated documents?
Personnel documents (orders, acts, etc.) are legally significant documents. They give rise to rights and obligations, officially record certain facts, and are used as judicial evidence and official confirmation. All such documents have mandatory details, and the date is just such a detail.
In simple terms, drawing up, for example, an order retroactively is a forgery of a document. For this alone there is an administrative charge under Art. 19.23 Code of Administrative Offences, and criminal under Art. 327 of the Criminal Code liability. And although, as a rule, it does not come to prosecution under these articles, other negative consequences are also a serious danger. It is easier to show it with specific examples.
How to complete the necessary records as prescribed by inspectors
Elimination of violations based on the results of the inspection
Situations where an inspection by a competent authority reveals a violation in the field of registration of labor relations (in particular, the absence of a written employment contract) occur frequently. As a rule, based on the results of such an inspection, the head of the company or the official responsible for personnel records management is held accountable and an order is issued to eliminate deficiencies.
And here a small dilemma arises, because it is illegal to formalize a document retroactively, but it is necessary to eliminate the consequences of the audit as soon as possible. To resolve this situation you will need to perform a few simple steps:
- Based on the results of the inspection, draw up a written employment contract with a specific working employee. The terms of the agreement must correspond to today.
- One of the clauses of the agreement should indicate the date of its entry into force. Here it is advisable to enter the date of actual start of work by the employee.
- If, during the absence of an agreement, its primary conditions (in particular, the level of wages) have changed repeatedly, it is possible to indicate in such an agreement the primary level of wages, and then simply prescribe the mechanism for how this indicator will change in the future.
- Such an agreement is signed by the current manager. The date of the agreement must correspond to the date of its preparation and signing.
Remember, labor legislation does not prohibit extending the validity of an employment contract to past periods. At the same time, by analogy with law, such a rule operates in civil contracts. Therefore, if a shortcoming has been pointed out to you, the best way to solve it would be to extend the validity of the employment contract drawn up based on the results of the audit to past periods.
Criminal liability for preparing documents retroactively
As mentioned above, criminal liability is determined by Article 327 of the Criminal Code of the Russian Federation. This includes the forgery of official documents that confer rights or relieve duties for the purpose of use or sale. Criminal liability arises not only for forgery of documents, but also of awards, as well as stamps, seals and forms.
Punishments for these crimes:
- Imprisonment for up to 2 years;
- Forced labor for up to 2 years;
- Arrest for up to six months.
Penalties for using counterfeit documents include:
- Fine up to 80,000 rubles or the amount of one month’s salary;
- A fine equal to the income for six months of work;
- Forced labor for up to 480 hours;
- Correctional labor for up to 2 years;
- Arrest for up to six months.
The danger of the crime lies in the fact that the document provides certain rights or exempts from specific obligations.
In this regard, if a fake work book or other document (certificate, diploma) is detected during a person’s employment, the employer must notify the regulatory authorities of the identified violation.
The work of an official is determined either by the Job Description or directly by law. Thus, the personal interest of an employee can lead to the so-called official forgery. This crime is regulated by Article 292 of the Criminal Code of the Russian Federation. For example, false information was entered into the grade book (the teacher received a bribe) or information about non-existent expenses was added to the reporting register (the accountant embezzles money), a relative of the director was employed who does not have the proper education, etc. Here are examples of employees who have a vested interest. Such a crime is punishable by up to 4 years in prison, as well as exclusion from holding certain positions.
Retroactive hiring procedure
If an employee worked without registration, but at the same time received a salary, in order to legalize his income and officially hire him, it is necessary to make additional personal income tax assessments, to the Pension Fund of the Russian Federation, the Social Insurance Fund, and the Federal Compulsory Compulsory Medical Insurance Fund. In fact, all these payments will amount to more than a third of the indicated salary.
In order not to pay taxes retroactively (with the accrual of penalties), you can place an employee on leave without pay immediately after being hired. Despite the fact that this situation is clearly controversial, it can be argued in Art. 106, 107 of the Labor Code of the Russian Federation on the definition and types of employee leave. At the same time, while on leave at one’s own expense, the employment relationship with the employee is not interrupted (Article 77 of the Labor Code of the Russian Federation).
For retroactive hiring, you can create a contract indicating the date of the employee’s actual admission to work. In principle, it is possible to create an order for employment with a past date, but it should be understood that during the audit this will be taken into account as a violation of the registration procedure.
A retroactive entry into the work book can be made if the employee worked part-time and then changed his status to his main job. If the work book is dated later than the entry in it, it makes sense to register a new one.
In the case when an employee asks to issue it retroactively in order to prove his length of service and experience in a certain field, it is worth offering him as an alternative the writing of a letter of recommendation certified by the manager. In this letter, you can indicate that the employee has actually worked in the position for a certain period of time.
Is it possible to hire retroactively?
Labor relations between an employee and an organization may arise without the formal conclusion of an employment contract and official employment on the basis of permission to work with the knowledge of the employer or a person authorized to give such permission. That is, we get a situation in which the employee has actually already started work, but is not officially employed.
In this situation, sooner or later the question arises as to whether retroactive hiring is possible and what actions need to be taken to avoid falling under sanctions and administrative liability. The answer to this question depends on the specific situation and circumstances:
- The employee actually worked in the organization without registration, received a salary, but no contributions were made to the Pension Fund and the Tax Service.
- The employee worked part-time, and his work book was at his main place of work.
- Initially, the documents were filled out incorrectly when applying for a job.
- The employee worked unofficially or part-time, but when moving to another job, he needs to confirm his length of service and work experience in a certain specialty.
To solve each of the above problems, you need to find your own way. So, when hiring, an employment contract must be drawn up, an order must be drawn up and an entry must be made in the employee’s work book. In fact, it is possible to apply for a job retroactively, but this will require certain expenses and may lead to administrative liability for the company or official.
Register an employee retroactively
During vacation, it seems that there will be no contributions to the Pension Fund, but the manager wants there to be deductions?
in fact and theoretically, a vacation without retained salary somehow seems like a stretch.
Let's imagine that an employee writes a job application on November 23, 2002 and does not go to work on the first day - it turns out that he did not work for a single day - therefore, it was impossible to make an entry for him in the employment record book, i.e. e. he is not accepted at all
Next, let's look at Article 234. The employer's obligation to compensate the employee for material damage caused as a result of illegal deprivation of his opportunity to work
The employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of: - the employee’s legal removal from work, his dismissal or transfer to another job; (in this case, removal from work - must be at least one working day, otherwise - it is not accepted at all; in case of dismissal and transfer - the same thing)
— the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job; (not suitable)
— delay by the employer in issuing a work book to the employee, or entering into the work book an incorrect or non-compliant formulation of the reason for the employee’s dismissal; (not suitable, because there must be working days)
— other cases provided for by federal laws and the collective agreement. (which?)
Hiring an employee retroactively
Answered by: Anastasia Taishina, head of analytical service, lawyer.
In accordance with current legislation, the employer is obliged to provide the Pension Fund with the following types of reporting: reporting (calculation) on accrued and paid insurance premiums and reporting, which consists of providing individual information about the employees of this employer. When providing individual (personalized) accounting information, the Pension Fund is informed, among other things, of the employee’s insurance record and accrued and paid insurance premiums. The insurance period includes periods of work and (or) other activities that were performed on the territory of Russia, provided that during these periods insurance contributions were paid to the Pension Fund (Clause 1, Article 10 of the Federal Law of December 17, 2001 No. 173-FZ “ On labor pensions in the Russian Federation"). Considering that your employee was not paid wages, insurance premiums were not calculated for this employee, there is no need to provide individual information about him, since there is no information to be recorded. In any case, it will be impossible to hold you accountable for violating the procedure for providing the Pension Fund with the necessary information and calculations, since the amount of fines is calculated as a percentage of the amount of insurance contributions for a specific employee, individual information about which was not provided (Article 46 of the Federal Law of July 24 .2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation...”, Article 17 of the Federal Law of 01.04.1996 No. 27-FZ “On individual (personalized) accounting in the compulsory pension insurance system”, paragraph 16 of the Information Letter Presidium of the Supreme Arbitration Court of the Russian Federation dated August 11, 2004 No. 79 “Review of the practice of resolving disputes related to the application of legislation on compulsory pension insurance”).
Employment of an employee retroactively to an individual entrepreneur!
Article 57. Labor Code of the Russian Federation Contents of the employment contract surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into the employment contract;
information about documents proving the identity of the employee and the employer - an individual; taxpayer identification number (for employers, with the exception of employers - individuals who are not individual entrepreneurs); information about the employer’s representative who signed the employment contract and the basis on which he is vested with the appropriate powers; place and date of conclusion of the employment contract. The following conditions are mandatory for inclusion in an employment contract: place of work, and in the case where an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality - place of work indicating the separate structural unit and its location; labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; specific type of work assigned to the employee). If, in accordance with this Code and other federal laws, the performance of work in certain positions, professions, specialties is associated with the provision of compensation and benefits or the presence of restrictions, then the names of these positions, professions or specialties and the qualification requirements for them must correspond to the names and requirements specified in qualification reference books approved in the manner established by the Government of the Russian Federation, or the relevant provisions of professional standards; the date of commencement of work, and in the case where a fixed-term employment contract is concluded, also the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law; terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments); working hours and rest hours (if for a given employee it differs from the general rules in force for a given employer); guarantees and compensation for work under harmful and (or) dangerous working conditions, if the employee is hired under appropriate conditions, indicating the characteristics of working conditions at the workplace; conditions that determine, in necessary cases, the nature of the work (mobile, traveling, on the road, other nature of work); working conditions in the workplace; a condition on compulsory social insurance of the employee in accordance with this Code and other federal laws; other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms. If, when concluding an employment contract, it did not include any information and (or) conditions from those provided for in parts one and two of this article, then this is not a basis for recognizing the employment contract as not concluded or for its termination. The employment contract must be supplemented with missing information and (or) conditions. In this case, the missing information is entered directly into the text of the employment contract, and the missing conditions are determined by an annex to the employment contract or a separate agreement of the parties, concluded in writing, which are an integral part of the employment contract. The employment contract may provide for additional conditions that do not worsen the employee’s position in comparison with established labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, in particular: on clarification of the place of work (indicating the structural unit and its location) and (or) about the workplace; about the test; on non-disclosure of secrets protected by law (state, official, commercial and other); on the employee’s obligation to work after training for no less than the period established by the contract, if the training was carried out at the expense of the employer; on the types and conditions of additional employee insurance; on improving the social and living conditions of the employee and his family members; on clarification, in relation to the working conditions of a given employee, of the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms; on additional non-state pension provision for employees. By agreement of the parties, the employment contract may also include the rights and obligations of the employee and employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and employer arising from the terms of the collective agreement and agreements . Failure to include any of the specified rights and (or) obligations of the employee and employer in the employment contract cannot be considered as a refusal to exercise these rights or fulfill these obligations. In accordance with this norm, the conclusion of an employment contract by proxy is not provided. An employment contract can be concluded for any period of time by agreement of the parties.
