Fine for an unregistered employee for individual entrepreneurs and LLCs in 2021

Any entrepreneur or legal entity that uses hired labor is obliged to take care of the correct and timely registration of its employees in accordance with the current Labor Code. Using the labor of other people without proper official registration is a major violation and even a crime, since it damages the rights of the worker himself, as well as the state.

What threatens an entrepreneur who decides not to pay due taxes and deductions for his employees?
What will be the liability of a legal entity whose company’s employees signed an employment contract much later than they began their activities?
How can this violation be detected and on what basis is punishment imposed?

Types of employer liability to an employee for violation of labor laws: disciplinary, material, administrative, criminal

Reasons for introducing liability for violation of employee registration

Any work must be formalized, be it the establishment of labor relations with a hired worker of an individual entrepreneur, with an employee of an LLC, a state-owned enterprise, or a company. What are the dangers of neglecting these responsibilities?

Unregistered workers, receiving wages “in envelopes,” doom themselves to the following possible consequences of such a relationship with the employer:

they are not protected from the arbitrariness of the manager in the event of illegal dismissal, delay or cancellation of vacation, untimely payments, etc.;
are deprived of state support in the insurance sector;
they lose in length of service and contributions to the Pension Fund, and therefore in their future pension.

An employee who receives a “gray” salary, that is, a salary on which taxes are not paid, must be aware of all the negative consequences that this can lead to. Payment of “gray” wages is made solely at the will of the employer at the employee’s own risk. Neither its size, nor the payment procedure, nor the payment period are fixed, as a rule, by any documents. The specified amounts are not subject to the laws governing the employee’s labor activity and his social security. Assess the seriousness of the consequences of an employee receiving a “gray” salary

The damage to the state is the arrears of a significant amount of taxes and fund contributions.

Such serious negative consequences have led to a serious attitude towards this type of offense on the part of regulatory authorities. The employer's responsibility for unregistered employees has been tightened.

Pros and cons of working without a contract for an employee

This side of the labor relationship has both its pros and cons.

The positive aspects include:

The employee receives a higher salary, i.e., in fact, the tax is not withheld from him in favor of the budget.
Minimum possible liability. There is no official contract, so he cannot be officially held accountable for damage to property, waste, shortages, etc. If the employer tries to do this unofficially, then you can always file a complaint with the regulatory authorities.
No deductions are made from wages based on writs of execution, since there is no official registration.
The opportunity to work in cases where this is officially impossible - for teenagers, pensioners, and the disabled.

At the same time, there are significant disadvantages:

The employer may not provide a guaranteed period of annual leave or pay for it in full.
Sick leave is not paid officially (only by agreement with the employer).
There is no special assessment of workplaces, and special clothing to protect against harmful factors is not issued.
Pension and work experience do not count, there are no contributions to pensions.
An employee can be “fired” at any time, and the employer may not even pay the money he earned.

So that there are no problems

To avoid many troubles, which we will talk about below, you need to formalize your employment relationship on time and correctly. In order for an employee to be officially hired, the employer must:

conclude an employment contract with him;
be registered with the Pension Fund of Russia and the Social Insurance Fund and submit relevant reports there on time;
document the personnel procedure: application from the person being hired, enrollment order, registration of a personal card, entry in the employment record, signature in familiarization with the job description, etc.

IMPORTANT! The recommended form of employment contract from ConsultantPlus is available here

The main evidence of the formalization of the “employee-employer” relationship is an employment contract with the signatures of both parties. When applying for a job, it must be drawn up and signed in 3 identical copies: for the employee, for the employer and for submission to the Employment Service.

The contract must indicate:

full name of the person being hired;
employer details;
the position for which the employee is applying (must correspond to the qualification list);
handwritten signatures of the employer and employee.

An incorrectly drawn up employment contract is already a reason for a fine, and its absence can lead to more serious liability.

IMPORTANT INFORMATION! The law allows no more than three days to register an employee; further delays are considered a violation punishable by a fine.

The employer refuses to enter into an employment contract: what should the employee do?

How to prove the fact of labor relations

If an employee who worked for the company unofficially was announced “dismissal,” active action must be taken immediately. Ideally, it is necessary to obtain some documents (the more the better) on which the employee signed during the work process.

In this case, it is necessary to act quickly, and without informing management about this - otherwise there is a high probability that all such documents will be immediately destroyed.

Next, you need to send a written statement to management. It must indicate that during the given time period the employee performed his duties there, but was fired. The document must also ask, for example, to make an entry in the work book.

Attention! The form must be handed over in person against signature. But since, most likely, no one will accept it, another copy can be sent by registered mail with the described attachment and acknowledgment of receipt.

It is also necessary to find witnesses who will be willing to speak in court and confirm that the employee worked for the company for a long time and carried out the tasks of management.

How to convince a manager to sign an employment contract

It will be quite difficult to convince the manager to legitimize the relationship if he does not intend to do this from the very beginning. You can try to talk with the director and mention that the employee is completely satisfied with his work, responsibilities, and salary, but I would like to legitimize this relationship.

After the director’s refusal, it is recommended to send a letter addressed to him (preferably by mail with notification of receipt). It is necessary to mention in the text that the employee has returned to his workplace and is performing his duties, but so far neither an employment agreement nor a work order have been issued.

Attention! You can also refer to the fact that unofficial employment is a direct violation of Article 67 of the Labor Code.

Two types of responsibility

Individuals and legal entities, using the labor of hired employees, are differently responsible for their registration before the state.

It often happens that individual entrepreneurs ignore employment contracts, which does not relieve them of responsibility if this fact is established, especially against the backdrop of tightened control. Legal entities more often commit violations and delays in registration. Both of them face very serious, albeit different, penalties for such violations.

Let's consider the forms of liability depending on the type of employer.

What threatens the “thrifty” individual entrepreneur

If a private entrepreneur does not do all the work himself, but hires other people, he must comply with the requirements of the Labor Code of the Russian Federation. It is quite understandable to want to save on taxes and deductions; you don’t want to waste time and effort on official registration. However, if illegal employees are identified, the individual entrepreneur may receive such troubles and financial losses that no savings on payments can compare with them.

If an employee has worked for hire for 3 or more days, and no contract has been concluded with him, this will delay the start date of tax collection and the counting of the length of service, which means damage will occur. The later the employee is registered, the higher the damage. Depending on the time of delay and the number of such employees, liability may be administrative or criminal.

The administrative responsibility of an individual entrepreneur includes:

imposition of a fine in the amount of 1-5 thousand rubles. for each employee;
forced suspension of the organization’s work for up to 90 days.

Significant violation of registration deadlines and the absence of employment contracts for a large number of workers indicate that the amount of taxes and deductions not received by the state is very significant. Such a violation requires more serious liability, especially if the perpetrator is unable to pay damages. When the violation is not under an administrative, but under a criminal article, the amount of fines and types of sanctions are different.

Individual entrepreneurs face criminal liability :

a fine in the amount of 100-300 thousand rubles;
imprisonment (real, not suspended) for up to 2 years;
After serving time in prison, the entrepreneur will never again be able to engage in business in the area where he committed this offense.

FOR YOUR INFORMATION! Any type of liability obliges the violator to first compensate the treasury for losses caused in the form of unpaid taxes and fees, and then be punished by a fine.

Amounts of penalties for working without an employment contract

Administrative fines for unlawful refusal to formalize an employment agreement with an employee, its improper execution, or the conclusion of a contract instead of an employment agreement are established by Parts 5 and 6 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

First fine for an unregistered worker

For committing an offense for the first time, the following penalties are provided:

For an official - 10-20 thousand rubles;
For an entrepreneur - 5-10 thousand rubles;
For organization - 50-100 thousand rubles.

Penalties in case of repeated violations

If this violation is detected by the same person again, the amount of punishment increases:

Per citizen - 5 thousand rubles;
For an official - disqualification for a period of 1-3 years;
For an entrepreneur - 30-40 thousand rubles;
For organization - 100-200 thousand rubles.

In what cases does an employer face criminal penalties?

Criminal penalties are provided for in cases where an employer does not transfer to the budget mandatory tax payments that must be withheld from its employees.

Other types of liability for the employer

Unofficial registration of an employee is actually an underpayment of the required funds from his salary to the budget and funds. This results in tax liability according to the Tax Code of the Russian Federation.

The employer is an agent for the withholding and transfer of personal income tax. If he does not do this, then the Tax Code provides for a fine of 20% of the amount of the resulting underpayment of taxes. In addition, you will need to pay a penalty to the budget for each day of delay.

Attention! Similar liability is provided for intentional non-payment of insurance premiums. Only in this situation, the fine will be 40% of the unpaid amount, and it will also be necessary to pay penalties for failure to meet payment deadlines.

How will a legal entity be responsible for errors in employee registration?

At enterprises of this form of ownership, the persons responsible for hiring and registering employees are the director and personnel department employees.

If the violation is minor and consists only of a relatively small delay or inaccuracies in registration, and also if we are talking about 1-2 employees, the fine will be issued not to the responsible persons personally, but to the enterprise. The amounts are significant - from 100 thousand rubles. for each incorrectly or lately registered employee.

If such offenses are detected repeatedly, and their scale is significant, we are talking about particularly large amounts of damage. In addition to a fine for the enterprise, the perpetrators will be punished personally: HR department employees are dismissed under the appropriate article (without severance pay), and the director can spend a long time on public works or “in places not so remote.” The punishment is determined depending on the degree of damage.

What can you do if you fail to pay?

A lot of forums, if you search, are full of questions: “I work without a work book, I decided to leave, they haven’t paid me the money, what can I do?” Or these may be questions related to the fact that they do not pay money and are asked to wait.

You may receive a recommendation to forget about restoring justice, since the fact of employment lacks documentary evidence.

However, based on Art. 67 of the Labor Code of the Russian Federation, labor relations are recognized as formalized when the employee begins to perform labor functions with the knowledge of the head of the organization.

The answer to the question of where to go if wages are not paid without an employment contract can be answered: to the labor inspectorate and the prosecutor's office. Of course, this will require more strength and patience from you than if the employment relationship were secured by a contract. When a person worked unofficially, it is necessary to prove his actual cooperation with this employer.

By showing persistence, you can achieve a prosecutorial inspection and a labor inspector visit to the employer. Then the manager will be held accountable and obligated to pay everything due to the employee.

This is important to know: Order to amend the employment contract

When it comes to massive non-payments, it makes sense to complain as a whole team by submitting a jointly drawn up statement.

How to collect evidence?

Anyone working informally needs to understand that he is obviously taking a risk by agreeing to accept such cooperation. However, it is possible to receive wages from an unscrupulous employer.

This will, of course, require witnesses who will confirm that the person worked daily at such and such an address. For proof, clients of the organization who interacted with those who were not paid their salaries can be brought in.

Documentation can be very important evidence. An employee working without an employment contract will need to painstakingly collect all available documents that bear his signature. If there is written evidence, the inspection authorities will be required to accept the complaint. The presence of a person’s signature as a representative of the organization is strong evidence of his actual work in the organization.

It would be ideal if in some documents you find how much your earnings are - in this case it will be easy to establish what the amount of unpaid funds is.

So, we can conclude: if an unemployed employee has not been paid money, then there are ways to restore justice, but it will be more difficult to collect the evidence base.

How “illegal” employees can be caught

To establish and suppress violations in labor legislation, there are regulatory authorities. There are quite a few of them, but the most common “headache” directly related to employee rights is tax and labor inspections. The legislative system of inspections is based on Federal Law No. 294, and the tax office inspects enterprises in accordance with Chapter 14 of the Tax Code of the Russian Federation. Both of them can catch “illegals”.

Can an employer organize internal control (self-control) of compliance with labor laws?

Tax passions

The fact of a violation can be revealed as a result of a desk (upon submission of reports) or an on-site (in-depth and thorough) inspection. Tax officials have the right to study in detail the current year of activity and the 3 previous ones, while they are allowed by law to interview witnesses, inspect premises, seize documents, etc.

IMPORTANT! The employer must review the inspection permit and the inspectors' credentials.

Based on the results of the inspection, a special certificate indicates its subject and timing. Based on the certificate, a report is drawn up with the identified violations and instructions for their elimination, for which the employer has 2 weeks.

How to fix the situation

If an employee loses the contract, the HR department is obliged to issue him a duplicate. This is done upon a written application from the employee. The execution period should not exceed three days from the date of application. You cannot charge any money for re-issuing a document. A duplicate is issued free of charge.

In cases where an employee asks for a copy of the employment contract, it must be certified. To do this, write the word “true” at the bottom of the document; under it indicate the position and surname of the employee who certified the paper, date and signature.

Notarization is not provided for by law. Therefore, this issue remains under consideration by the employer. If an employee makes such a request, the personnel officer has the right to refuse.

Important! Local regulations may provide for notarization of a copy of the employment contract. If such a document exists at the enterprise, the employer will have to pay for the notary’s services.

For those cases where an employment contract is lost at an enterprise, there are no legislative provisions for re-registration. Therefore, each employer has the right to determine the terms and procedure for restoration. To give the procedure legality, it is necessary to develop a local regulation that states what to do in the event of loss.

For example, the document can indicate that the employment contract is restored on the basis of a copy kept by the employee. It is important to describe in detail the timing and procedure for creating a duplicate.

Protecting the right to work

The labor inspectorate can visit any organization during a scheduled inspection. An unscheduled “invasion” of inspectors can be provoked by a complaint from an offended employee or a disgruntled competitor. A joint inspection raid with other control bodies is also possible.

The labor inspectorate draws up a protocol with the following information:

Full name of the inspector;
identified violations;
recommendations for elimination.

The protocol is the basis for imposing a fine or for going to court to determine the extent of criminal liability.

In the arsenal of regulatory authorities there are various ways to force the culprit to bear responsibility - from blocking bank accounts to suspending the activities of an enterprise by a court verdict.

Where can I go?

After receiving a claim about unpaid wages from an employee, the employer is obliged to respond to it and take action to resolve the conflict situation. However, not all managers respond to employee complaints, much less fulfill their demands. If a response has not been received or the applicant is not satisfied with it, the applicant should send a letter to the regulatory authorities.

The first authority that can help if wages are not paid without an employment contract is the labor inspectorate . There are branches in every city: you can contact a department employee directly or write an electronic complaint on the inspection website. But what if you don’t have an employment contract?

Expert opinion

Novikov Oleg Tarasovich

Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.

This means that even an unofficial employee has the opportunity to file a complaint about unpaid wages, providing government agencies with evidence of the actual performance of their duties. For example, the following can prove the fact of employment :

This is important to know: Extension of the term of an employment contract with a foreign citizen

Pay slips, accounting extracts, letters from the company to the employee.
Working documents containing the employee’s details (invoices, invoices, statements).
Response to a previously filed claim for unpaid wages.

If none of the specified papers is available, then witnesses can prove the fact of work activity: the employee can attract two people who can confirm that the employee was indeed unofficially employed.

In the same way you can contact the prosecutor's office if the labor inspectorate could not find violations on the part of the employer. By the way, this government agency is more effective, since law enforcement agencies have more powers. The application to the prosecutor's office is also submitted along with documents proving the fact of employment.

What evidence does the court consider?

Payment of the invoice offer is equivalent to concluding an agreement (Article 435, Article 438 of the Civil Code of the Russian Federation). An invoice for payment for goods, as a rule, indicates the details of the parties, characteristics of the goods, their quantity, cost, etc.

If an invoice for payment to the buyer contains all the essential terms of the supply agreement, then such an invoice is equated to an offer (Definition of the Supreme Arbitration Court of the Russian Federation dated 02/09/2011 No. VAS-1090/11). And payment for it is an acceptance, from the date of which the contract is considered concluded (Resolutions of the Plenum of the Armed Forces of the Russian Federation dated December 25, 2018 No. 49, Eighth Arbitration Court of Appeal dated August 5, 2019 No. 08AP-4128/2019, AS of the Volga-Vyatka District dated April 27, 2017, No. A43-31817/2015).

When establishing actually existing contractual relations, the court may proceed from postal, electronic correspondence, documents indicating the intention of the parties to enter into an agreement.

Such documents may be:

drafts of an unsigned contract with a signed specification of the supplied goods;
payment receipt, payment order;
consignment note, consignment note;
invoices or UPD;
other documents confirming the arrival of the goods;
safety receipt;
waybill;
acceptance certificates for work performed or services provided;
work order;
technical or other assignment for the performance of work, provision of services;
power of attorney to receive goods;
correspondence between counterparties agreeing on the terms of the transaction. These can be letters sent by mail, telegrams, or other documents transmitted via communication channels.

The given list of documents is not exhaustive.

The employer does not pay wages, they worked without a contract

Comments Question: Good afternoon! Please help me! I worked in a cafe, but I did not work officially, that is, without an employment contract. When I applied for my hard-earned wages, I was refused. Tell me, please, what to do if they don’t pay wages and there is no contract? The employer refuses outright!

Where can I go? Thank you! Answer: Good afternoon, V.! In your case, if there is no employment contract (or civil contract), you need to provide other evidence that you worked in this cafe (witnesses, your signature in the employer’s documents), and refer to Part 1 of Article 61 Labor Code of the Russian Federation, according to which the employment contract will not need to be submitted to the court or other body, since in such cases it comes into force from the moment you are actually admitted to work with the knowledge or on behalf of the employer or his representative.