An employee’s employment document, if he does not have one, can become a serious obstacle to resolving the issue of employment, significantly reducing the possibility of reaching an agreement with the employer.
Labor legislation, as well as civil proceedings, closely monitor the employer’s observance of the employee’s rights and hold him responsible for the timely return of labor compensation after dismissal. The law requires making an entry in the work book in connection with the death of an employee.
Lawyers' answers
In accordance with Article 67 of the Labor Code of the Russian Federation, a written employment contract must be concluded no later than three days from the moment the employee is allowed to perform his duties.
The employment contract is concluded in two copies; the employer must hand over the second copy to the employee against signature.
Therefore, the employer is obliged to issue an employment contract to you, and if this does not happen, there is a violation of labor legislation.
Regarding the change of owner. Even if the previous owner was a representative of the employer and through him an employment contract was concluded with you, there is no need to make changes to the employment contract, because at the time the contract was concluded, the former owner had all the rights to enter into such an agreement, and after his dismissal another representative will be appointed, but already for concluding other agreements. If the change of owner does not affect your responsibilities, working conditions and other conditions specified in the employment contract, but there is no need to make changes to this document, the employment contract is completely legal.
Regarding the change in the name of the enterprise. Employment contracts in this regard are also not renegotiated if, apart from the names, there are no other changes. It will be enough to make an entry in the work book, as well as to conclude an additional agreement to the employment contract regarding the changes that have occurred.
Regarding dismissal. An employer does not have the right to prohibit employees from quitting. This is a violation of Article 80 of the Labor Code of the Russian Federation and Article 5.27 of the Code of Administrative Offenses of the Russian Federation.
In this situation, you must write a letter of resignation of your own free will 15 working days before the date of dismissal in two copies. For 15 days because 14 days of work begin to count from the next day of filing the application and, in fact, from the day the director affixed the visa.
You officially register your resignation letter through the registration register, ask for a registration number on your copy. Then you work quietly for two weeks. On the last working day, you demand that you be given your work report and a copy of the dismissal order, as well as make a full settlement with you, compensation for vacation, wages and other compensation that may be provided for by your collective agreement, of course, if you have one.
If you are refused the next day, bring a written statement requesting that you issue a work book and make a full payment, naturally the statement in two copies. You put down the registration on yours, and attach the second copy, along with the two-week-old resignation letter, to the application to the Labor Inspectorate, where you describe that your rights have been violated. you are not fired and are not given pay slips or a work book.
You submit an application to the Labor Inspectorate and within a few days the company will be inspected, the fact of violation of your rights will naturally be established, the company will be fined, and you will receive a settlement. If you want to punish your employer more harshly, you can submit a similar application to the prosecutor.
Employer's liability
Of course, a dishonest businessman cannot expect anything good for not concluding an employment contract with an employee. The employer's responsibility for working without an employment contract is provided for both administrative and criminal (if suddenly the state does not like his “hide and seek” with taxes).
According to Article 5.27 of the Administrative Code, a fine is provided . If this is an official, then up to 5,000 rubles . The same applies to an individual entrepreneur. Well, if we are talking about a company, then from 30 to 50 thousand . They can also suspend activities for up to 90 days .
Is the employer obliged to hand over a copy of the employment contract to the employee?
You should have been given not a copy, but the original of the employment contract, since it is drawn up in two copies, one for each party. If the employer refuses to do this, then this is a violation of labor laws. Complain to the labor inspectorate.
The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is given to the employee, the other is kept by the employer. The employee’s receipt of a copy of the employment contract must be confirmed by the employee’s signature on the copy of the employment contract kept by the employer.
In general, the employer must initially draw up an employment contract in two copies (Article 67 of the Labor Code). If you have lost your copy, then, upon your written application, the employer is obliged to provide you with a certified copy of it free of charge (Article 62 of the Labor Code). If you refuse, please contact the labor inspectorate.
On the day of dismissal of an employee, the employer is obliged to issue him a work book.
Your appeal will automatically be sent to the regional labor inspectorate.
File a complaint with Rostrud regarding dishonest actions of the employer or employees of the enterprise, poor working conditions or violation of labor discipline. Hello, I am Dmitry Viktorovich Astapovsky, I got a job at PKF EnergoShchit LLC on April 10, 2019.
This is important to know: Concluding a fixed-term employment contract with pensioners
The employer still refuses: what to do?
So, you have already submitted an application and waited enough, but the employer still does not hand over an employment contract?! It's probably time to complain and stand up for your rights. You should contact:
- to the Rostrud inspectorate with a complaint about a violation of your labor rights. Rostrud is a specialized supervisory body, therefore it is obliged to respond to your complaint, force the employer to issue documents and hold him accountable. You can submit a complaint in person, by mail or through the Onlineinspektsiya.rf service;
- to the local prosecutor's office with a complaint about violation of labor laws. The prosecutor's office is the body for general supervision of compliance with the law, and therefore is also obliged to respond to your complaint. At the very least, intensify the work of the Rostrud inspectorate.
- to court with a claim. The fact that you are not given an employment contract in your hands is the basis for the recovery of moral damages. Please note that you can file a claim only if you first submit a written statement to the employer himself - this procedure is mandatory pre-trial under Art. 62 of the Labor Code (ruling of the Sverdlovsk Regional Court No. 33-13033/2014 dated October 3, 2014).
Unofficial employment
There is no concept of “unofficial work” in Russian legislation. But the real phenomenon, when a person actually works, but according to documents he is not here and never was, quite exists and even flourishes.
Expert opinion
Polyakov Pyotr Borisovich
Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.
Accounting calls such workers “non-wired”, that is, absent from the postings and official accounting data. Workers often call this phenomenon “black wages.”
The scale of informal employment has especially increased since the 2008 crisis, when the labor market situation for workers sharply deteriorated. I do not have statistics on the scale of this phenomenon, and most likely no one keeps such statistics.
In general, having a written employment contract de jure means that you are in an employment relationship with the employer.
The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.
The employer's order (instruction) regarding employment is announced to the employee against signature within three days from the date of actual start of work.
Furthermore, in accordance with Art. 62 of the Labor Code of the Russian Federation, upon a written application from an employee, the employer is obliged, no later than three days from the date of filing this application, to give the employee copies of documents related to work (copies of an order for employment, orders for transfers to another job, an order for dismissal from work;
extracts from the work book; certificates of salary, period of work with a given employer, etc.). Copies of work-related documents must be properly certified and provided to the employee free of charge. Therefore, you have the right to demand from your employer any documents related to your work, including a copy of the employment contract.
In accordance with Art. 67 of the Labor Code of the Russian Federation, an employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is given to the employee, the other is kept by the employer. Therefore, the original contract must be kept with you.
Don't let the labor inspector take you by surprise!
The Federal Tax Service has edited the control ratios of VAT declaration indicators.
This is due to the entry into force of the order amending the VAT reporting form. If a company, in order to save on taxes, instead of recruiting a staff of employees, has entered into contracts for the provision of services with several individual entrepreneurs, tax authorities can still recognize the work of such individual entrepreneurs as labor activity and hold the cunning employer accountable for evading the duties of a tax agent for personal income tax.
In the case when a “physicist”, not registered as an individual entrepreneur, purchases goods using a foreign Internet service (for example, eBay), the duties of a tax agent for VAT are not assigned to him.
Labor Code on registration of labor relations
- on the employee’s personal performance for pay of a labor function (work according to the position in accordance with the staffing table, profession, specialty, indicating qualifications, the specific type of work assigned to the employee);
- on the employee’s subordination to the internal labor regulations when the employer provides working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract.
Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with the Labor Code (Article 16 of the Labor Code of the Russian Federation). Labor relations between an employee and an employer also arise on the basis of the employee’s actual admission to work with the knowledge or on behalf of the employer or his representative in the case where the employment contract was not properly drawn up.
An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified labor function, to provide working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and by this agreement, to pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function determined by this agreement, to comply with the internal labor regulations in force for this employer (Article 56 of the Labor Code of the Russian Federation). The parties to the employment contract are the employer and the employee.
- one copy of the employment contract is given to the employee;
- another copy is kept by the employer.
An employment contract that is not drawn up in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative (Part 2 of Article 67 of the Labor Code of the Russian Federation).
When an employee is actually admitted to work, the employer is obliged to conclude an employment contract with him in writing no later than three working days from the date the employee is actually admitted to work.
As you can see, the current labor legislation establishes two possible options for the emergence of labor relations between an employer and an employee:
- or on the basis of an employment contract concluded in accordance with the established procedure between the parties;
- or on the basis of the employee’s actual permission to work with the knowledge or on behalf of the employer or his representative.
This is important to know: Notice of extension of a fixed-term employment contract: sample 2021
In any case, from the normative provisions of labor legislation it follows that the obligation to properly formalize labor relations with an employee (concluding a written employment contract, issuing an order (instruction) on hiring) is assigned to the employer by the norms of the Labor Code of the Russian Federation.
Can an employee demand documents after dismissal if he himself refused to obtain them during employment?
The essence of the matter was as follows. The employee wanted to avoid foreclosure on wages under a writ of execution. When applying for a job, he asked not to formalize the employment relationship with him. The employer met him halfway. However, after the dismissal, the employee went to court.
Having studied the case materials, the court found that, according to the staffing schedule, the defendant organization had staffing positions for sales managers, a logistics manager and a development manager.
To justify that the employee worked for the organization, he provided evidence of the actual performance of the manager’s work, including information from the organization’s websites, where he was listed as a manager.
Expert opinion
Polyakov Pyotr Borisovich
Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.
During the consideration of the case, the organization objected to the satisfaction of the employee’s claim, but did not dispute that he performed the work designated by him, received monetary remuneration, while the employment relationship with him was not formalized at his personal request.
During the consideration of the case, the plaintiff denied that the employment contract was not drawn up at his request, referring to the fact that he was not aware of its absence, since he received his salary on time every month and fulfilled the duties assigned to him, there were no claims against him.
The court of first instance concluded that it had established the existence of an employment relationship between the employee and the employer.
The arbitrators indicated that the employee, due to his dependent legal status, cannot be held responsible for the actions of the employer, who, based on the direct instructions of the law, is obliged to formalize labor relations in a timely and proper manner (Article 68 of the Labor Code of the Russian Federation). Moreover, it is the employer who bears responsibility for the consequences that arise when hiring an employee without proper registration of labor relations.
As a result, the court ordered the organization to issue the employee an employment contract, copies of hiring and dismissal orders, and also pay him compensation for moral damage.
What violations of the procedure for issuing work records does an employer commit?
The deviation from legal norms most often made by companies on the topic described is the delay in issuing a work book to an employee. Failure to comply with legal requirements may be expressed through:
- Failure to provide a work book upon termination of a contract;
- Refusal to provide a work book for applying for a pension;
- Not sending a written notice to someone who was absent on the last day of work about the need to return for a book;
- Refusal to issue a duplicate work book to an employee if it is lost or damaged.
Although formally, the last paragraph is also an offense, the Labor Code of the Russian Federation does not contain a direct indication of the application of financial liability to the employer in such a case.
Why is this a violation?
Is the Labor Code of the Russian Federation violated if an employee is not given an employment contract? Certainly!
Firstly, issuing it is the first responsibility of the employer immediately after formalizing the employment relationship. The agreement is concluded in two copies, each of which is signed by both parties, one of them is given to the employee, the second is kept by the employer (Article 67 of the Labor Code). He didn’t give the employee a contract – he started the labor relationship with violations.
Second, the employer must give you a copy upon request. Let’s imagine that when you were hired, you were actually given a copy of the contract. But if you wish, you have the right to request a copy of it again, referring to Art. 62 TK. For example, if you lost it or accidentally damaged it.
Why does the employer avoid signing?
Read: Unreasonable refusal to hire in 2021
Employees working without a contract, on the one hand, are beneficial to the employer. They do not need to pay sick leave, provide vacation, or pay contributions to the Pension Fund and Social Insurance Fund for them. They may not be paid additional wages, forced to work overtime, change their work and rest schedule without warning, etc. Since there is no written agreement, the employee does not know exactly his job responsibilities and cannot demand the amount of payment for his work that he was promised in words.
On the other hand, the legislation provides for administrative liability for employers who evade concluding employment contracts. Therefore, the consequences of such savings can be very serious.
