Is it possible to work under an employment contract without a work book?

Differences between an employment contract and a GPC agreement

Both the employment contract and the civil process agreement are concluded for the purpose of formalizing relations for a citizen to perform any work for an enterprise, however, in the first case, special working relationships arise that are not regulated by the Civil Code. The differences between the two types of agreements are as follows:

• according to the GPC, certain work or task is performed, while according to the labor employee, he performs a labor function and holds a position in the company;
• in labor relations, a citizen is obliged to comply with internal regulations, other local regulations, as well as orders and instructions from management. When concluding a GPC agreement, the principle of equality of parties applies;
• the employer has certain obligations in labor relations: payment of wages to the employee at least twice a month, payment of contributions, organization of labor and safety, certification of workplaces, etc. The relations of the parties in the GPC agreement are regulated only by agreement of the parties and the law, internal legal documents do not apply to them, payment of remuneration can be carried out in any manner that does not contradict the law, as agreed upon by the parties; There are no insurance contributions.

A GPC agreement must be distinguished from a fixed-term employment contract. Most often, working relationships are formalized on an indefinite basis; a fixed-term contract is concluded only if it is impossible to conclude an open-ended one. The difference between fixed-term contracts and GPC is based on the constancy of the functions assigned to the employee: the GPC agreement is concluded not just for a certain period, but to perform a specific task.

Here is a table of preferred formulations.

Sample GPC agreement

Working under an employment contract without a work book

The disadvantages of working without a book are much greater than the advantages. A definite advantage for the employer can be considered the almost complete absence of formalities and bureaucratic difficulties. The citizen receives relative freedom when performing a task, including the absence of inclusion in the hierarchical system of the enterprise. When drawing up a GPC agreement, it is much easier to terminate the relationship, which can be considered both pros and cons, depending on the situation (although here, too, you need to be careful and comply with the requirements of Article 310 of the Civil Code of the Russian Federation).

Disadvantages of not having a work book under a GPC agreement:

• vacations and sick leave are not paid, vacation is not provided at all, this is an element of the labor relationship;
• insurance contributions are not deducted, as a result of which the employee’s guarantees are reduced;
• lack of incentive and compensation payments, including bonuses;
• lack of liability of the employer in case of industrial injuries (if the damage is not caused by the fault of the customer).

Some experts mistakenly consider various types of civil law contracts as work under an employment contract without an entry in the work book. This is incorrect, since agreements of this type are purely civil in nature. Accordingly, the employer does not have to issue a book. For example, this applies to contracts for the provision of services or author's orders.

However, the Labor Code of the Russian Federation provides for three cases of concluding an employment contract without recording in the work book:

• registration of part-time work;
• remote employment;
• the employer is an individual.

Part-time work

In accordance with paragraph 5 of Article 66 of the Labor Code of the Russian Federation (Part 5 of Article 66 of the Labor Code of the Russian Federation), when hiring a citizen to work in an organization who will perform part-time duties, information about this is entered into the book at his request. In this case, information can be indicated by the main place of employment. To do this, you must provide a document confirming the fact of part-time employment. For example, a certified copy of the employment order or a certificate from the second place of employment indicating details and other necessary data.

Sample contract for part-time work

Where can I get a book if I haven’t worked?

According to paragraph 8 of the Rules, approved. 225 of the Government Decree, the registration of a work book for an employee hired for the first time is carried out by the employer in the presence of the employee no later than a week from the date of hiring. In particular, a person who has lost his work book, according to paragraph 31, paragraph 225 of the resolution, is obliged to immediately notify the employer at his last place of work.

The employer issues the employee a duplicate work book (with all records of length of service and incentives) no later than 15 days from the date the employee submits the application.

This is important to know: Regulations on electronic work books: sample 2021

Employment with an insurance certificate, but without a work permit

Employment begins with the fact that the employee must bring with him a certain package of documents for registration. The list of documents is given in Article 65 of the Labor Code (LC RF).

It includes:

• passport and work book, with the exception of cases when an employment contract is concluded for the first time or the employee starts working on a part-time basis;
• insurance certificate of compulsory pension insurance;
• military ID (or registration certificate);
• documents on education, qualifications, certificates.

If the position requires certain training, skills or condition, then the employee provides a full package of documents, and if at a minimum, then presents a passport and insurance certificate.

The law prohibits requiring documents other than those listed above from a person applying for a job, but nowhere is there a prohibition on asking an employee to provide additional information or documents.

If a person applying for work does not have a work book due to its loss, damage or for any other reason, the employer is obliged, upon a written application of this person (indicating the reason for the absence of a work book), to issue a new work book.

The application is addressed to the employer and signed by the employee himself, indicating the date. For example, it might look like this:

"Statement. Due to the fact that I have lost my work book, I ask, in accordance with paragraph 5 of Article 65. Labor Code of the Russian Federation, give me a new one. Number. Signature."

Remote employment

Work under a contract without a work book, in accordance with Part 6 of Article 312.2 of the Labor Code of the Russian Federation, is possible with remote employment, provided that the employee is employed for the first time (the employer is relieved of the obligation to issue a book). In order for the employer to realize this opportunity, a corresponding agreement between the parties is signed. It can be put on paper by adding a phrase to the document confirming this agreement. Or the employee draws up a statement asking not to include information about remote work in the document.

In this case, in accordance with Part 6 of Article 312.2 of the Labor Code of the Russian Federation, the main document confirming the employee’s length of service will be his copy of the agreement. Additional confirmation may be copies of orders for admission to remote work and dismissal issued by the employer. This conclusion can be drawn from an analysis of the provisions of Part 5 of Art. 312.1, part 2 art. 312.5 Labor Code of the Russian Federation. The employee organizes the recording and storage of such documents independently.

Exceptions to the rules: when else can you hire an employee without a work permit?

The provisions of the law allow another option, when an employer can hire a person without a work book who is not an exception to the rules of Art. 65 Labor Code of the Russian Federation. This is possible if the employee has lost or lost the document due to some insurmountable circumstances.

As a rule, in such cases, the employee is obliged to immediately report the loss (theft or loss) of the book to his previous employer, who must issue a duplicate of it within 15 days (clause 31 of the Rules for maintaining work books). When filling out the form, it is mandatory to enter o on its title page (we talked in more detail about preparing a duplicate work document here).

But according to Art. 65 of the Labor Code, an employee can also contact his new employer with an application to issue a new labor document in connection with its loss, damage, etc. For such situations, a special procedure has been established for issuing a new work book for an employee:

This is important to know: How to fill out an electronic work book: sample 2021

• Simultaneously with the application for employment, the applicant must write a separate application for a new work book form to be issued to him. The reason for issuing the form is indicated (loss, theft, etc.);
• Based on the application of the new employee, the employer is obliged to draw up a new work book accordingly, and notify the employee of this under signature (a mark is placed on the employee’s application, the application is filed in his personal file);
• The form of a new work book is provided by the employer, with subsequent deduction of its value from the employee’s salary.

The new employer is not required to enter information about the employee’s work activity for the period preceding the issuance of a new record book into the form, although this is not prohibited by law. If there are supporting documents about previous places of work, this information can be entered into the new work record.

A new work book issued in compliance with all established requirements has the same legal force as the original lost by the employee.

Employer is an individual

In accordance with paragraph 3 of Article 66 of the Labor Code of the Russian Federation, an individual who is not an individual entrepreneur does not have the right to make entries in employee books and register them for persons hired for the first time. A document confirming the period of employment with such an employer is a rental agreement concluded in writing (paragraph 2 of Article 309 of the Labor Code of the Russian Federation).

Individual entrepreneurs are not exempt from the obligation to make entries in this document in relation to each employee. This fact is confirmed by paragraph 1 of Article 309 of the Labor Code of the Russian Federation.

Employers - individuals without the status of individual entrepreneurs can also enter into employment contracts. Such an employer does not have the right to make entries in the work book, or issue a new one. Thus, evidence of a citizen’s activities in this case is only his copy of the contract. At the same time, the employer - an individual is also obliged to make contributions to the funds and issue an insurance certificate if such work is the first for the employee. The agreement can be concluded either for a certain period or be of an indefinite nature. Such an employer is obliged, in accordance with Art. 303 of the Labor Code of the Russian Federation, notify local authorities and register the agreement (at your place of residence).

Sample agreement: employer - individual

Changes in legislation from 2021

Instead of a paper version, the new document will be called “Information on Labor Activities.” Records will be personalized for each employee. All issues will be dealt with by the Pension Fund of the Russian Federation.

All records will be made electronically, and at the time of dismissal, the employee will be given an extract about his professional employment.

The employee will have the opportunity to control this information through the following bodies:

• HR department of the company;
• Pension Fund of the Russian Federation;
• MFC;
• State Services portal.

How are labor relations formalized?

The employment contract must reflect the following information regarding the employee and the employer:

• full name and place of residence of the citizen;
• details of his identity document;
• bank account details for payment;
• name of legal entity, full name Individual entrepreneur or citizen - employer;
• the name of the person authorized to represent the interests of the employer;
• employer's address;
• his bank details.

A complete list can be found in Art. 57 Labor Code of the Russian Federation. These are the usual details of the contract, but in this case special attention must be paid to filling them out.

Re-qualification of a GPC agreement into a labor agreement in court

Often, at the request of citizens, contracts are requalified. In this case, the court, when deciding on the essence of contractual relations, based on practice, evaluates the following conditions:

• the nature of the work performed (one-time tasks or certain job responsibilities);
• working conditions (presence or absence of a workplace, provision of equipment and materials, compliance with labor protection);
• procedure for payment of remuneration (dates and frequency);
• formulations of responsibilities (according to the Labor Regulations or not);
• the presence or absence of social guarantees for the employee (payment of sick leave, etc.).

Features for a pensioner

Article 3 of the Labor Code establishes the ability of citizens to equally exercise the right to work. It is prohibited to limit or provide benefits to a citizen based on age, so pensioners are registered and work on an equal basis with everyone else.

The only exception is the refusal to employ a person over 65 years of age for certain positions (heads of educational institutions, civil servants, etc.).

You can conclude an employment contract with a pensioner for an open-ended period, a document on the provision of services, or a fixed-term contract. Retired citizens have the right to work part-time; a work book is not required.

Responsibility of the employer for an employment contract without a work book

The article lists three cases where the possibility of concluding an employment contract without a book is legislated. In other cases, the employer must ensure that there is an entry in the book. Evasion of this obligation is punishable by law and faces certain consequences for the employer. This thesis is enshrined in Decree of the Government of the Russian Federation dated April 16, 2003 No. 225. In this regard, Article 5.27 of the Code of Administrative Offenses of the Russian Federation provides for fines for such an offense in the amount of 1,000 to 50,000 rubles. Repeated violation may result in a fine of 10,000 to 70,000 rubles, as well as disqualification of the manager. Moreover, payment of a fine does not relieve one from civil liability to the employee: obligations to properly formalize the relationship, payment of various compensations for the period of the relationship, etc.

Often, employers hide under civil law agreements relations that fall under the Labor Code of the Russian Federation. For example, concluding contracts for an author's order or for the performance of any services. Such violations may be discovered through an audit or as a result of a complaint received from employees. Inspectors are guided by the essence of the existing legal relations.

Often such cases go to court and are decided not in favor of the employer. This outcome is typical when inspectors come to the conclusion that the existing legal relationship between the customer and an individual is of a permanent nature and is subject to the Labor Code of the Russian Federation. Since when carrying out work under a GPC agreement, the employee is considered not to be socially protected, the court takes his side. In particular, the employee does not have the right to paid vacation and sick leave. The employer has no liability for compensation for damages in the event of a work injury, and pregnant women are not paid maternity leave. In addition, the contract can be terminated at any time. However, the employee does not receive notification of this in advance. Therefore, care should be taken in advance to ensure that employees are properly registered in order to avoid administrative liability and infringement of workers’ rights.

The article was prepared jointly with the United Consulting Group.

GPC agreement

Part-time agreement

An agreement in which the employer is an individual

Most common mistakes

Error No. 1. For an unfounded conclusion of a GPA, instead of a labor option, administrative liability is provided in the form of a fine: for an official - from 10 to 20 tr., for an individual entrepreneur - from 5 to 10 tr., for an organization - from 50 to 100 t. .R.

Let's summarize. Drawing up a rental agreement without a work book is possible only in two cases: the agreement is of a civil law nature, and part-time employment. If these options are not suitable, and there is no book, then at the request of the employee, a duplicate can be issued with registration in accordance with the requirements of the law.