Looking through messages on forums and all kinds of blacklists on social networks, every now and then I come across a post that seems to be written as a carbon copy: “if the employer does not formalize it, tell me what to do?” Unfortunately, this is not spam, but the real pain of specific people whose rights are violated. How to act in such cases and where to look for justice?
You can't argue with the Labor Code
The Labor Code clearly defines the provisions governing the terms of concluding contracts and official employment of employees.
We read Article 67 and find out that within three days from the moment the employee “took up his post,” he is required to sign all official papers. If this does not happen, it is worth demonstrating to the HR department your knowledge of the law and reminding you of the need for registration. Couldn't you resolve the issue peacefully? Where to complain if the employer does not formalize it, despite the promises made? All paths lead to the Labor Inspectorate.
On a note! When contacting the Labor Inspectorate, you should insist on anonymity . Perhaps this will eliminate problems at the new place after the inspection by inspectors.
Some employers think that the absence of a piece of paper with text or the absence of a signature on it relieves them of responsibility. There seems to be no documentary evidence of hiring?! How wrong they are. In the same article 67 we find the provision that if a person began his duties by decision of management (company representative) or notified the employer about the start of his work, then official employment actually occurred.
Complaint to the prosecutor's office and its effectiveness
Contacting the prosecutor's office is advisable in cases where, without officially arranging the case, the employer does not pay for the period of work. In a situation where the employer does not settle and does not pay wages, it is advisable to consider what the employee should do individually.
If the employer honestly paid the promised amounts, and the employee is committed to obtaining official employment, then the answer to the prosecutor will not satisfy him. In most cases, prosecutors, in response to the appeal, explain the rights, offering to go to the judicial authorities for their protection.
You can perceive this as a formal attitude and re-send the appeal to a higher prosecutor’s office, for example, to the regional or federal one.
ATTENTION !!! The effectiveness of contacting the prosecutor's office largely depends on how strong the evidence is presented by the applicant, as well as on the integrity of the prosecutor himself.
The correctness of the application is also important. The latter can be sent in writing, electronically and at a personal reception. By the way, it is recommended to personally visit the prosecutor's office.
Why don't they want to register?
The answer to the question of why the employer does not formalize it lies on the surface. As soon as a document appears (a copy of it must be given to the employee) and an entry in the labor record, headaches in the form of additional expenses are added:
- it is necessary to pay a monthly salary and make contributions to insurance, pension and tax;
- pay sick leave or maternity leave;
- provide leave (and look for a replacement for this period) or pay compensation.
On a note! A new entry in the employment record must appear no later than 5 days from the actual start of work.
An established employee cannot be kicked out of the door without explaining the reason, because today few people will tolerate illegal dismissal. By the way, if you are shown the door after at least 3 days of work, you can safely go to court. The main thing is to have evidence that you have worked. You can use them as:
- any information or documents to which you had access during the course of your employment;
- testimony of colleagues (usually two people are enough for the court to side with the illegally dismissed person).
We are not talking now about cases where delays occur due to the fault of an employee, for example, he did not bring documents, or due to reluctance to take on a “pig in a poke.” In the latter case, by the way, those who promise to register after the probationary period again violate the law.
- The trial cannot last more than 3 months.
- Its completion must be mentioned in the employment contract.
- Before the start (!) of the probationary period, it must be formalized (indicating the amount of remuneration). Only in this case can you start working.
Who benefits from informal employment?
The main task of most workers is to earn decent money.
It is not easy for some employers to organize this - from each salary of an officially employed employee, they additionally pay 43% of taxes to the state budget. 13% income tax is the amount that is openly withheld from the salary. The employer pays the remaining 30% independently. In this way, the employee accumulates a pension, he can receive free medical care and qualify for social benefits.
Let's look at an example. Let's say you work officially. Your salary is 45 thousand rubles.
You will pay 13% personal income tax on your salary, which means you will give the state 5,850 rubles. Get 39,150 rubles in your hands.
Your employer will pay a tax of 30% for you – 13,500 rubles. And he does this monthly for each employee. There are employers who want to avoid this burden. Let's look at how this affects workers.
What threatens an unscrupulous employer?
For violation of the law, the employer will be held liable - administratively or even criminally - and this can also be correctly reminded when trying to resolve issues peacefully.
For violation of the Labor Code under Article 5.27 of the Code of Administrative Offences, the fines are:
- for officials – 1000-5000 rubles;
- for individual entrepreneurs - a fine in the same amount can be replaced by a ban on carrying out activities for 90 days;
- for legal entities – 30,000-50,000 rubles. (or a ban on activities for 90 days).
On a note! If your complaint is not the first, then the manager will be banned from holding a leadership position for 3 years.
But for non-payment of taxes, which are required to be deducted from employee salaries, the punishment is more severe - up to 2 years in prison.
Fine for failure to comply with a bailiff's order
The bailiff who opened the enforcement proceedings can contact the employer at any time and request all documents regarding the debtor (Article 64 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”).
The employer faces a fine under Part 2 of Article 17.14 and Clause 2 of Part 2 of Article 23.68 of the Code of Administrative Offenses of the Russian Federation:
- in the amount of 50,000 to 100,000 rubles. - For the company;
- in the amount of 15,000 to 20,000 rubles - for the head of the organization.
Where to look for protection?
If they don’t officially register for a job, then where to go?
To begin with, it is worth talking with the employer, using arguments as references to articles of legislation. Jokes and jokes can remind you of responsibility. If the interlocutor does not heed the voice of reason, then all that remains is to seek protection on the side.
The main guardian of fairness in employee-employer relations is the Labor Inspectorate. You can contact it either orally (an anonymous call to the services for citizens' complaints) or in writing, and it is proposed to send a complaint today online on the official website. There you can also study the list of unscrupulous employers to save your nerves. Based on your message, a check will be carried out, which will certainly produce results.
On a note! You can also initiate a tax audit by complaining to the Federal Tax Service. Tax officials really don’t like those who underpay taxes, and employers are very afraid of tax sanctions.
The court remains the last resort. You will have to write a statement of claim and collect evidence of your own employment. Instead of an employment contract, which is usually used, a pass to the workplace, or any papers issued to you by the accounting department as an employee, will do. The witnesses named in the claim will be required to attend the hearing, regardless of their will, and give truthful testimony.
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.
What points should you be wary of?
It is unlikely that there will be employers who will say in plain text that, in fact, they are not going to hire you. Most likely, one of the tricks will be used to obtain, albeit for a short period, free labor.
If you hear the following phrases, think a hundred times about whether to hire for a vacant position.
- The director cannot sign the contract because he is sick, on vacation, etc.
- Rewrite the application submitted 3 days ago without errors, but put the date today.
- Today it’s impossible to get it done, since the accounting department is very busy (filing reports, auditing, etc.).
- Work for a week on the test. Assess your capabilities, understand whether you like it with us, we will look at you, and then we will arrange for you as it should be.
Often, employees themselves give a free hand to dishonest employers. Some naively believe the promises, others ignore negative reviews, and others simply do not know about the rights. Before hiring, soberly weigh the pros and cons, and even if the work is very necessary, do not rush to become someone who is ready to work for free.
Registration of an appeal
The legislator allows the filing of a complaint in simple handwritten form. But the latter will look more impressive if it is printed.
In addition, the content of the application must contain a number of mandatory points:
- The name of the prosecutor's office indicating the address and surname, rank of its head;
- Information about the applicant - last name, address details and contact telephone number;
- In the title of the complaint we indicate the type of rights violated; to specify the situation briefly, in the situation under consideration we can designate “a complaint regarding the failure to formalize official employment”;
- The content of the application describes the situation, indicating full information about the employer - name, legal address, telephone number, last name of the manager;
- Indicate the dates when the employee actually began performing duties and until what point he performed them, describe the amounts and forms of remuneration, if any;
- Outline the requirement for the need to conduct a prosecutorial audit and take response measures and force the employer to draw up an employment contract;
- Documents are drawn up in the form of a list to prove the fact of fulfillment of labor duties;
- The document is completed with a date and signature.
ATTENTION !!! It is difficult to judge the effectiveness of such treatment. In many ways, it all depends on how convincing and weighty the evidence of employment turned out to be.
So, for example, if a manager responded to an employee’s request to explain the reasons for not formalizing an employment relationship, then such a response already proves a “labor” connection with the employer, as well as the very fact of sending such a statement. In fact, few people would think of writing such appeals to company managers without having a working relationship with them because they are meaningless and illogical.
Can an employee work without a contract?
A contract is an agreement under which the manager must provide the employee with a workplace, ensure normal operating conditions provided for by law, and pay wages on time.
In turn, the employee undertakes to perform the function established by the contract and to comply with the rules of procedure established in the organization. Consequently, the contract is a fundamental document that records the fact of the employee’s employment and the basic conditions for the performance of his work activities. It is possible to work without this document only if there is an alternative - a civil contract, which records the fact that a person provides paid work.
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.
Question answer
Question: I have Ukrainian citizenship, but I already received a residence permit and thought that now my employment rights are the same as those of Russian citizens. But after the interview, he was refused, allegedly due to the lack of quotas for foreign citizens. Is it possible?
Answer: Such a reason is unlawful. You should ask for a written refusal, on the basis of which you can go to court.
Question: Is it legal to refuse employment if you have a suspended conviction?
Answer: According to Part 6 of Art. 86 of the Criminal Code of the Russian Federation, when a criminal record is expunged/removed, all legal consequences associated with it are canceled. Accordingly, a citizen has the right to choose a job at will (taking into account the existing specialty and skills). If the conviction did not involve a serious crime, it is also possible to obtain a license to possess weapons for employment as a security guard. But in some federal and municipal institutions, if you have a criminal record, there are restrictions.
Question: I was denied a job due to the lack of a Taxpayer Identification Number (TIN). Then I read that this is illegal. What articles can be used when filing a complaint?
Answer: The list of documents presented when applying for a job is enshrined in Art. 65 Labor Code of the Russian Federation. If regulations do not provide for the need to submit additional documents (TIN is one of them), such a requirement will be illegal. Accordingly, the refusal of employment is not justified and you can go to court.
