Article 5.27 of the Code of Administrative Offenses of the Russian Federation. Violation of labor legislation and other regulatory legal acts containing labor law norms (current version)

In general, the employer-employee relationship looks like this.

The employer selects a person among applicants based on professional qualities. An employment contract is concluded with the employee for specific duties and salary. The employee performs the assigned work and rests at the appointed time. The employer pays money twice a month, provides insurance in case of illness and injury, and monitors labor safety. Dismisses strictly for reasons specified in the Labor Code of the Russian Federation.

If somewhere in this chain an employee is discriminated against, the employer is held accountable.

Types of liability: material, administrative and criminal. Each responsibility is independent - you can get into two or three at once.

We tell you why entrepreneurs are punished and how to make sure that the risk of liability tends to zero.

Employment contract

If you do not conclude an employment contract with an employee, the employer faces a fine of up to 100 thousand rubles.
(Part 4 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation). But not everyone knows that this fine can be applied even if there is an employment contract. During inspections, the labor inspectorate examines the texts of the contracts themselves and looks to see whether all mandatory clauses are reflected in them (Article of the Labor Code of the Russian Federation). An error or inattention can cost the company the same 100 thousand rubles. They can also be fined under Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation) - for violation of labor legislation. Under this article, up to 50 thousand rubles will be charged. We have collected cases of such fines in a table.

Fines for errors in employment contracts

All these violations are formal and do not cause any harm to employees. However, the judges note that the threat in this case is not in the material consequences for employees, but in the employer’s neglect of his duties and the interests of the employee (decisions of the Moscow City Court dated July 22, 2019 No. 7-8240/2019, 7-8244/2019, 7-8245/2019 and No. 7-8241/2019, 7-8243/2019).

Violations of employers that the labor inspectorate does not forgive

Every company should be aware that there are scheduled and unscheduled inspections. Their main difference is in the bases. For a scheduled inspection, such a basis is a plan that is agreed upon with the prosecutor’s office and published annually on the website of the State Tax Inspectorate of the relevant entity.

The routine check should be limited to questions from the checklists. The verification begins with a verification order, which indicates who is being sent to you, and you can compare what is written with the certificate that is presented on the spot. The order also indicates the numbers of the check sheets.

For more details you can read:

• with types of GIT inspections, employer’s rights during inspection and paperwork;
• with GIT inspection objects.

If you are interested in inspections not only by the labor inspectorate, but also by the Ministry of Internal Affairs and Rospotrebnadzor, then it is better to immediately look at the consolidated inspection plan on the website of the Prosecutor General’s Office.

Conducting business according to the law. Services for individual entrepreneurs and LLCs less than 3 months old

Details

What you definitely need to know:

• After the introduction of a risk-based approach when conducting inspections, all employers, depending on their “behavior,” were divided into 5 risk categories.

The task of business is to carry out preventive measures in terms of compliance with legislation so as not to fall into the category of employers with a high and significant risk.

• The frequency of inspections depends on which risk category the employer belongs to.

If the activities of a company or individual entrepreneur are classified as low risk, then they do not conduct scheduled inspections.

• The coefficient of conscientious behavior of the employer consists of many factors: industry affiliation, facts of violations in the payment of wages, the presence of accidents at work, etc.

But the employer can influence which risk category he will be classified into - it all depends on what type of violations are revealed during the inspection.

Grounds for unscheduled inspections of GIT

Most of the inspections are unscheduled inspections. And there are different reasons for carrying them out - all of them are listed in Art. 360 Labor Code of the Russian Federation.

As a rule, information that serves as the basis for unscheduled inspections comes not only from employees whose rights are violated. Other inspection bodies, for example, the Federal Tax Service, may complain about a company or individual entrepreneur. Questions may result in zero values ​​for the special assessment. The Federal Tax Service cannot do anything with this information, but it has the right to transfer it to the State Tax Inspectorate. In turn, the Pension Fund is obliged to signal the State Labor Inspectorate about violations in the transmission of information about work activities.

Of course, it is important for the employer not only to find out about the unscheduled inspection itself, but also to understand what served as the basis for its conduct.

The labor inspectorate is obliged to notify the employer in advance of an unscheduled on-site inspection. And she must do this in any available way at least 24 hours before the start. But there are also regional GIT websites where information about the start of inspections is published at the beginning of the month. Therefore, it is useful to periodically monitor such resources.

There are only a few reasons for conducting an unscheduled inspection without notification:

Ground number 1 . It is known that as a result of the employer’s activities, harm has been caused or is being caused to the life or health of citizens (Part 17, Article 10 of the Federal Law of December 26, 2008 No. 294-FZ).

What is interesting about the new regulations of Rostrud

In 2021, a new administrative regulation of Rostrud dated June 13, 2019 No. 160 appeared, which explains what harm to life and health means in the understanding of GIT.
Previously, this was understood exclusively as a violation of labor protection rules. But for the first time, paragraph 91 of the Order of the Russian Labor Labor Ministry dated June 13, 2019 No. 160 states that this concept includes:

• non-payment of wages and its individual components;
• failure to provide paid leave;
• violation of the work and rest schedule;
• evasion of registration of labor relations or their improper registration;
• failure to provide workers with personal and collective protective equipment;
• admission to work of persons who have not undergone training, instructions, on-the-job training, medical examinations, psychiatric examinations;
• lack of a labor safety management system or its improper functioning;
• failure to conduct a special assessment of working conditions;
• failure to provide, violation of the procedure for providing guarantees and compensation to employees for work in harmful or dangerous working conditions based on the results of a special assessment of working conditions.

Ground number 2 . An employee’s statement about a violation of his labor rights or other information indicating serious violations of labor legislation by the employer (Part 9 of Article 360 ​​of the Labor Code of the Russian Federation).

What violations do employers commit?

Let us dwell on the most common violations that will not go unnoticed by inspectors.

You do not comply with the list of documents required when applying for a job.

The list of documents required for employment is indicated in Art. 65 Labor Code of the Russian Federation. Employers often make a big mistake when they register a person for a job even before he provides the entire set of necessary documents.

As a result, two serious risks arise:

• You can hire an employee before he quits his previous job.
• Without seeing the documents, you hire an employee for a job for which qualification requirements have been established. It is quite possible that at the initial stage the employee provides the appropriate questionnaire, and you are satisfied with everything in it. Later, when filling out your personal T-2 card, you ask him for the necessary documents, but they don’t exist.

Dealing with such risks is necessary only as a warning.

In order to avoid violations when hiring, you need to pay attention to the “Hiring” section in the company’s internal labor regulations. It is important that the list of documents that you request from the applicant does not include those that are not provided for by law. For example, you cannot ask for an employee’s tax identification number or a child’s birth certificate.

You forget that the employee needs to be familiarized with local regulations.

In this case, we are talking about local regulations that are directly related to labor activity. With them, according to Part 3 of Art. 68 of the Labor Code of the Russian Federation, the employee must familiarize himself with it before signing the employment contract.

The electronic format of familiarization is currently provided only for remote workers. From May 5, 2021, this format can also be used by companies that are participating in a pilot project to introduce electronic personnel document management. All other employers must familiarize employees with documents against signature.

This requirement can be implemented in different ways. The most acceptable way is to use the information sheets under the text of the local regulatory act.

Evgenia Konyukhova, an expert in the field of labor legislation and personnel records management, advises to include the following preamble at the beginning of the information sheets: “Before signing the employment contract, I have become familiar with <name of the local regulatory act>. Full name, date, signature.”

Another option for familiarization is possible - when the employee signs on a separate familiarization sheet in the familiarization logs.

Some employers prefer to take a statement from employees; it lists all the acts with which he has become familiar.

Electronic work books, staffing tables, employee personal records, personnel reporting, payroll and average headcount and other features in one program.

Try it

You do not specify the labor function in the contract.

Inspectors often ask that the employment contract indicate not just the position, profession, specialty, but also the specific type of work assigned.

There are two options on how to do this:

• Indicate the name of the position and profession and describe in one sentence what the person does at work.
• Write that when performing a job function in a specific position, the employee must also be guided by the current job description.

You incorrectly stipulate wages in the employment contract.

If the company has a non-cash method of paying wages, then this must be mentioned in the employment contract. It is important to mention that payments are made to the credit institution specified in the employee’s application. But it is better not to link it to the salary project in the employment contract.

In the employment contract, it is important to emphasize that the money is transferred to the credit institution specified in the employee’s application. This is necessary to comply with Art. 136 of the Labor Code of the Russian Federation, which prohibits “wage slavery”. Indeed, recently a company may be fined for depriving an employee of the right to choose another credit institution to transfer wages.

In the documents you do not clarify the issue of tariff rates and salary amounts.

If allowances are provided for employees, then first of all they must be well spelled out in local regulations, as required by Art. 135 Labor Code of the Russian Federation.

In the employment contract, it is enough to indicate the name of these payments: bonus based on the results of work, additional payment for work at night, etc.

You use one document template for all employees, forgetting about special categories.

In particular, there are categories of workers such as drivers, forwarders, and couriers whose work is traveling. This detail is often forgotten to be indicated in documents.

You forget that the contents of the order must comply with the terms of the employment contract.

Often in Art. 65 of the Labor Code of the Russian Federation, employers ignore two important requirements:

• The contents of the order must be consistent with the terms of the employment contract. For example, it happens that there is no structural unit in the employment contract, but it is included in the employment order.
• The employment order must be submitted within three days from the date of actual start of work, and not from the date of signing the employment contract.

You do not address the issue of wage indexation.

Commercial organizations carry out salary indexation in the manner established by local regulations, agreements, and collective agreements.

However, there may not be an agreement or a collective agreement. In this case, there must be any local regulatory act (for example, internal labor regulations, indexation regulations, etc.). In this act, you need to independently answer a number of questions: what is the frequency of indexation in your company, what is the amount of indexation, what part of the salary will be indexed.

You are confused about the timing of salary payments.

First of all, you must set the payment terms. The specific date for payment of wages is established by internal labor regulations, a collective agreement or an employment contract no later than 15 calendar days from the end of the period for which it was accrued.

You transfer your salary on the wrong days.

If you have a non-cash payment method, the money must be transferred strictly on those days indicated as salary payment days. Exception, according to Art. 136 of the Labor Code of the Russian Federation, there can only be one thing - when the payment day coincides with a weekend or a non-working holiday. Then payments are made on the eve of this day.

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Work books and personal cards

Inspectors do not ignore other personnel documents: work books and personal cards. Companies in which employees who worked for more than 5 days did not issue work books were fined 50 thousand rubles (decisions of the Moscow City Court dated July 22, 2019 No. 7-8240/2019, 7-8244/2019, 7-8245/2019 and No. 7-8241/2019, 7-8243/2019).

50 thousand fines had to be paid by companies where employees did not have personal cards in form No. T-2 (decision of the Trans-Baikal Regional Court dated 02/04/2019 in case No. 7-21-46/2019 and in case No. 7-21- 44/2019).

The Labor Inspectorate fined the company the same amount for an error in a personal card: the HR specialist incorrectly indicated in it the data on the employee’s workwear, and not all of it was issued (decision of the Moscow City Court dated July 18, 2019 No. 7-7127/2019, 7- 7207/2019, 7-7210/2019, 7-7126/2019, 7-7154/2019).

Familiarization with documents

They can also be fined 30-50 thousand rubles for another formality - if the employee is not familiarized with the required document upon signature (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation). Here are the documents employers did not familiarize employees with in 2021 and received a fine for it:

• internal labor regulations (decisions of the Moscow City Court dated July 22, 2019 No. 7-8240/2019, 7-8244/2019, 7-8245/2019 and No. 7-8241/2019, 7-8243/2019 and the Trans-Baikal Regional Court dated 04.02 .2019 in case No. 7-21-46/2019 and in case No. 7-21-44/2019);
• order on hiring and termination of the employment contract (decision of the Perm Regional Court dated September 19, 2019 in case No. 7-1996/2019(21-1163));
• regulations on the conditions of remuneration and bonuses for employees (decisions of the Trans-Baikal Regional Court dated 02/04/2019 in case No. 7-21-46/2019 and in case No. 7-21-44/2019);
• vacation schedule (decisions of the Trans-Baikal Regional Court dated 02/04/2019 in case No. 7-21-46/2019 and in case No. 7-21-44/2019).

Refusal to hire

Anyone has the right to look for work and find it. Relax - not every person on the street can be rejected for work. We are talking only about an unreasonable refusal - for example, if the candidate meets your requirements, but you personally did not like it. Or a girl came - an excellent specialist, smart, but pregnant - which means she won’t work for long. Even advertisements “wanting an employee no older than 40 years old” are already age discrimination. Now there are fewer and fewer of them - people have learned to defend their rights.

As stated in Article 64 of the Labor Code of the Russian Federation, an unreasonable refusal is one without specifying a reason at all, for personal reasons that have nothing to do with the business qualities of the applicant, or on the basis of gender or age (discrimination of an employee).

What should an employer do in such a situation? We all understand perfectly well that a girl on maternity leave really won’t work much, and a person who makes a bad impression from the first meeting is unlikely to fit into the team. This means that it is necessary to introduce clear selection criteria - interviews, testing of employees, possession of professional knowledge and skills.

What are we risking?

A lawsuit. A rejected candidate can appeal to the labor inspectorate or court. Also, for an unreasonable refusal of a pregnant woman or someone who has a child under three years of age (if the boss has not explained an objective reason), criminal liability may arise under Article 145 of the Criminal Code of the Russian Federation. The fine will be up to 200 thousand rubles or compulsory work.

Time tracking

The Labor Inspectorate monitors how companies take into account the working time of employees (Article of the Labor Code of the Russian Federation). Those who do not keep such records at all (decision of the Perm Regional Court dated September 4, 2019 in case No. 7-1856/2019/21-1065/2019) and those who organized them incorrectly or do not keep them in accordance with the established forms risk receiving a fine. .

Thus, a company from Chita and its manager (decisions of the Trans-Baikal Regional Court dated 02/04/2019 in case No. 7-21-46/2019 and in case No. 7-21-44/2019) were fined due to the fact that the form of the worker’s report card time did not correspond to the official one (Decree of the State Statistics Committee of January 5, 2004 No. 1). And the capital company was punished for the fact that data on the driver’s actual time was not indicated in his waybills (decision of the Moscow City Court dated July 18, 2019 No. 7-7127/2019, 7-7207/2019, 7-7210/2019, 7-7126 /2019, 7-7154/2019).

Keep your timesheet and calculate your salary in one window

The objectives of labor law are for the benefit of society

Ensuring compliance with legal labor standards is intended to promote law and order in the labor sphere, which has a beneficial effect on society. The tasks of each legal branch reflect part of the social tasks as a whole, being aimed at achieving the declared goals. They are given in the text of the Labor Code (Part 2 of Article 1) and declare:

• formation of optimal factors for a consensus of interests of production owners, managers and employees, as well as benefits for the state;
• promoting increased labor productivity;
• promoting the growth of labor quality;
• measures to promote production efficiency;
• participation in improving the financial and cultural well-being of working citizens;
• strengthening labor discipline.

Briefing and medical examinations

A fine of 50 thousand rubles can await both those who neglect medical examinations and those who do not follow the necessary formalities (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

For example, an employer was fined for allowing drivers to work without pre-trip medical examinations (decision of the Moscow City Court dated July 18, 2019 No. 7-7127/2019, 7-7207/2019, 7-7210/2019, 7-7126/2019, 7- 7154/2019). By the same decision, the Moscow City Court found it lawful to impose a fine on the company for the fact that it had carelessly prepared logs about employees undergoing initial training. In particular, she did not enter data on the date of admission of the employee to independent work and the internship period.

Pay slips

The employer is obliged to issue a pay slip to each employee at the end of the month or upon dismissal (Article 136 of the Labor Code of the Russian Federation). Reviewers analyze them for a twofold purpose.

First, they check the dates of accruals and payments on payslips and payment orders. Having discovered discrepancies, they hold the company liable for late payment (Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation; decision of the Moscow City Court dated July 18, 2019 No. 7-7127/2019, 7-7207/2019, 7-7210/2019, 7-7126 /2019, 7-7154/2019).

Secondly, controllers check whether the payslips themselves are drawn up correctly. If they do not contain comprehensive data on the components of the salary, the company is fined under Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. For example, such a fine can be received if you do not indicate on the sheet the surcharge in the form of a “northern” coefficient (decision of the Sverdlovsk Regional Court dated June 18, 2019 in case No. 72-700/2019).

Violation of deadlines

Employers are also fined for failure to comply with the deadlines established by the Labor Code of the Russian Federation. Most often we are talking about vacations and vacation pay. The employer must notify the employee about the vacation two weeks in advance (Article 123 of the Labor Code of the Russian Federation) and pay vacation pay three days in advance (Article 136 of the Labor Code of the Russian Federation).

Often, companies violate these deadlines not through their own fault, but because they accommodated an employee who applied for leave less than three days before. But the judges are convinced that this does not relieve the employer from liability (decisions of the Moscow City Court dated April 18, 2019 in case No. 7-4171/2019 and the Perm Regional Court dated September 16, 2019 in case No. 7-1930/2019/21-1120/2019 ).

So, when signing such an application for leave from an employee, you need to take into account that it threatens fines for the company and the manager personally.

Goals set for labor law

The goals of each branch of law reflect both state and popular interests. The goal setting of a dynamic system, which is the sphere of work, can change due to qualitative changes in its content. At the moment, the goals stated as of November 7, 2015 are relevant (they are regulated in the very first article of the Labor Code of the Russian Federation).

1. Guaranteeing by the state that citizens of the country have the free right to work.
2. Actions aimed at creating favorable and effective working conditions for both parties.
3. Protecting the interests and ensuring the fulfillment of the powers of employees and employers as active parties in the labor process.

Monetary irregularities

Inspectors check the timeliness of payments and the correctness of deductions. If the inspectors identify deductions that are not named in Art. 137 of the Labor Code of the Russian Federation, and the employer is unable to present a document confirming the employee’s consent to such withholding, the company will face a fine (decision of the Perm Regional Court dated September 19, 2019 in case No. 7-1997/2019(21-1164)).

Another basis for a fine is the compensation that the employer must accrue to the employee if he did not pay the money on time (Article 236 of the Labor Code of the Russian Federation). If such compensation is not paid on time, the company may also be fined 50 thousand rubles (Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation). And it doesn’t matter what kind of money was not paid on time: salary, payment upon dismissal, or something else (decisions of the Moscow City Court dated July 22, 2019 No. 7-8240/2019, 7-8244/2019, 7-8245/2019 and No. 7-8241/2019, 7-8243/2019, Perm Regional Court dated September 19, 2019 in case No. 7-1997/2019(21-1164) and dated September 18, 2019 in case No. 7-1995/2019(21-1162) ).

Mistakes during dismissal

Mistakes in dismissing employees can also be a reason for a fine of 100 thousand rubles. But here the employer has a chance to avoid liability.

Judicial practice is based on the rule: if a mistake in dismissal or disciplinary action becomes a reason for a labor dispute (i.e. the employee does not agree with the fact of the violation, the procedure for dismissal, etc.), then the court considers such disputes according to the rules of Civil Procedure code. Such errors do not entail administrative liability for the employer (decision of the Magadan Regional Court dated 05/06/2019 in case No. 12-78/2019, 7-25/2019, Resolutions of the Supreme Court of the Russian Federation dated 09/13/2019 No. 19-AD19-6 and dated 18.01. 2019 in case No. 19-AD18-32).

But this does not mean that you can draw up dismissal documents carelessly. After all, if a mistake does not lead to an individual labor dispute, it may well result in a fine of 100 thousand rubles for the company.

Thus, the court approved a fine for the employer due to the fact that he “early” (without waiting two weeks from the date of filing the application) issued an order to dismiss the employee. The employee did not contest her dismissal, which enabled the Labor Inspectorate to issue a fine. In addition, the company was made aware that it had sent the employee a notice of the need to come for a work book or agree to receive it by mail not on the day of dismissal, but later (decision of the Trans-Baikal Regional Court dated 02/25/2019 in case No. 7-21-90 /2019).

Working overtime without compensation

A familiar situation - you ask a manager to work on a day off because the season is at its peak, there are a lot of orders, and you don’t want to lose profit? The manager agrees, cancels plans and works on his day off - but does he receive compensation for this?

The Labor Code states that you need to work no more than 40 hours a week. Anything above that is already recycled. In addition, the employee needs to be asked if he agrees, and not presented with a fait accompli, and even under the threat of dismissal (we’ll talk about this a little later). For overtime work, the business owner must pay increased compensation or give the employee a day off. The increased size is also clearly recorded in the TC. From July 1, 2021, compensation for weekends and holidays spent at work is paid at double the rate. If an employee worked only a few hours, it means that these hours will cost the employer 2 times more.

Let's talk separately about irregular working hours. All these advertisements with the conditions of “irregular working hours” are mostly illegal, because it is unlikely that employees receive all the necessary compensation. Irregular working hours turn into plowing from 8 am to 10 pm, and so on every day. Meanwhile, according to the new amendments, an irregular schedule is introduced only if the employee works full time - and the work week must be incomplete. That is, you worked 14 hours a day - then rest, dear. And this does not apply to those employees who work part-time.

What are we risking?

This violation relates to the same article of the Code of Administrative Offenses as the previous one. Accordingly, the fines will be the same. There are no criminal penalties, thank God.