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I worked for one private trader, for about 4 months, I received a salary for the first month, only half for the 2nd, and not for the remaining 2 months. But the fact is that I worked unofficially and there are no contracts, etc., there are only witnesses.

Lawyers Answers

Mikhailovsky Yuri Iosifovich(03/05/2014 at 14:14:34)

Good afternoon! You can apply with Applications to the State Labor Inspectorate of your region, the Prosecutor's Office and the Court (no state duty is charged), you can refer to witness testimony. Article 391 Russian Federation. Consideration of individual disputes in courts Individual labor disputes are considered in courts at the request of an employee, employer or trade union protecting the interests of the employee when they do not agree with the decision of the labor dispute commission or when the employee goes to court, bypassing the labor dispute commission, as well as at the request of the prosecutor, if the decision of the labor dispute commission does not comply with other acts containing norms. Individual labor disputes are considered directly in the courts at the request of: an employee - regardless of the grounds for termination, about changing the date and wording of the reason for dismissal, about transferring to another job, about paying for the time of forced absenteeism, or about paying the difference in time for performing lower-paid work, about illegal actions (inaction) of the employer in the processing and protection of personal data of the employee; employer - on compensation by the employee for damage caused to the employer, unless otherwise provided. Individual labor disputes are also considered directly in the courts: about; persons working under an employment contract with employers - individuals who are not individual entrepreneurs, and workers religious organizations; individuals who believe they have been discriminated against. Article 392 Labor Code Russian Federation. Terms for resolving an individual labor dispute An employee has the right to apply to the court for resolving an individual labor dispute within three months from the day when he learned or should have learned about the violation of his right, and for disputes about dismissal - within one month from the date of delivery to him copies either from the date of issue. The employer has the right to apply to the court for disputes on compensation by the employee for damage caused to the employer within one year from the date of discovery of the damage caused. When passing through good reasons terms established by the first and second parts of this article, they may be restored by the court. Article 393 of the Labor Code of the Russian Federation. Exemption of employees from When filing a lawsuit with a claim arising from, including non-fulfillment or improper fulfillment of the terms of an employment contract that are of a civil law nature, employees are exempted from paying duties and court costs.

Vasilyeva Elena(03/05/2014 at 14:41:04)

Hello!

Contact the Labor Inspectorate with a complaint about the violation by the employer of labor legislation, indicate that the employment relationship is not properly formalized. You can also indicate about non-payment of salary. Give as many facts as possible confirming the labor activity (witnesses, etc.). If you go to court, you will have to establish the fact labor relations, and then collect s / pl.

Starting with the Labor Inspectorate will be faster.

Khromykh Larisa Georgievna(03/05/2014 at 15:06:12)

Hello!

Your employer may have big problems. Firstly, they were obliged to conclude with you labor contract.

“An employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. When the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date the employee was actually admitted to work.(Article 67 of the Labor Code of the Russian Federation).

And secondly, both administrative and criminal liability has been established. In your case, already criminal:

Article 145.1. non-payment wages, pensions, scholarships, allowances and other payments

1. Partial non-payment of more than three months of wages, pensions, scholarships, allowances and other payments established by law, committed out of selfish or other personal interest by the head of an organization, employer - individual, the head of a branch, representative office or other separate structural unit organizations -

shall be punishable by a fine in the amount up to 120 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period up to one year, or by holding certain positions or engaging in certain activities for a term of up to one year, or by compulsory labor for a term of up to two years, or by deprivation of liberty. for up to one year.

2. Complete non-payment of more than two months of wages, pensions, scholarships, allowances and other payments established by law or payment of wages for more than two months in the amount below the established federal law minimum size committed out of selfish or other personal interest by the head of an organization, by an employer - an individual, the head of a branch, representative office or other separate structural subdivision of an organization, -

shall be punishable by a fine in the amount of 100 thousand to 500 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to three years, or by compulsory labor for a term of up to three years, with the deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without it, or by deprivation of liberty for a term of up to three years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

(as amended by Federal Law No. 420-FZ of 07.12.2011)

3. The acts provided for by paragraphs 1 or 2 of this Article, if they caused grave consequences, -

shall be punishable by a fine in the amount of 200 thousand to 500 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to three years, or by deprivation of liberty for a term of two to five years, with deprivation of the right to hold certain positions or engage in certain activities for a term. up to five years or less.

Note. Partial non-payment of wages, pensions, stipends, allowances and other payments established by law in this article means making a payment in the amount of less than half of the amount due.

You can write a complaint both to the prosecutor's office and to labor inspection. But first make a dictaphone recording of peaceful negotiations with the employer, on which you fix both the period of non-payment and its size.

For example, this can be your peaceful reasoning with your manager that “I have already worked for 4 months, and the salary has been paid only for ..... The salary in such and such an amount suits me quite well, but the debt is already in such and such an amount. I just would like to know when approximately the payment of salary debts, etc., etc. will be. "

Reply from 07/05/2014 00:28

According to Art. 22. Labor Code of the Russian Federation, one of the obligations of the employer is to pay the employee in full wages. Art. 135 of the Labor Code of the Russian Federation establishes that an agreement between an employee and an employer (most often an employment contract) establishes the procedure, terms and amount of wages. But due to some circumstances, it happens that the employer does not fulfill his obligation to remunerate the labor of employees.

What should an employee do in this situation?
According to Art. 142 of the Labor Code of the Russian Federation, an employee, if his wages are delayed for more than 15 days, by notifying the employer in writing, may not go to work. You can even organize a strike, in accordance with Art. 37 of the Constitution of the Russian Federation and art. 409 of the Labor Code of the Russian Federation;
You can contact the authorized body to protect your labor rights.
Where to go if the employer does not pay wages?
Art. 382 of the Labor Code of the Russian Federation states that the proceedings of individual labor disputes possibly through a court or a labor dispute commission.
Commissions for labor disputes are created at the enterprise (organization or institution). The commission includes equally representatives of employees and the employer. Employees elect representatives to the commission at the general meeting, and the employer appoints the head of the organization by order. Employee representatives may be members trade union organization operating at this enterprise or an association of workers (if one was created). An employee can apply to this commission within 3 months from the day he learned about the violation of his rights. Commission within 10 calendar days in the presence of the employee (or his representative) and the representative of the employer considers the dispute. Based on the results of the consideration of the dispute, the commission makes a decision binding on the parties. If within 3 days the decision of the commission is not executed, a certificate is issued with which the party can apply to the bailiffs for enforcement.
Likewise, any worker, if he believes that his labor rights violated, within the framework of Article 22 of the Civil Procedure Code of the Russian Federation and Art. 382 of the Labor Code of the Russian Federation can apply to the court for the restoration of their rights, including in the event of non-payment of wages.
According to Art. 5 Regulations on federal service on Labor and Employment, approved by Decree of the Government of the Russian Federation No. 324 dated June 30, 2004, the State Labor Inspectorate (SLI), exercises control and supervision over compliance by the employer labor law. The duties of the GIT include consideration of the application of citizens about the violation of labor laws. Also, by virtue of Article 21 of the Federal Law of the Russian Federation No. "On the Prosecutor's Office of the Russian Federation", prosecutors are required to consider citizens' applications for non-compliance with the Constitution of the Russian Federation and non-compliance with laws (including the Labor Code of the Russian Federation, which is a federal law) by heads public institutions, commercial and non-profit organizations.
Thus, a citizen of the Russian Federation, whose labor rights are infringed by the employer by not paying wages, has many opportunities for pre-trial and trial proceedings with a negligent employer.

Unemployment is one of the problems of our society. In order to somehow live, many citizens work unofficially, without an employment contract.

Also, there are often cases when, although the salary is officially accrued, a smaller part of it is carried out through the accounting department, and large “gray” amounts are issued immediately to the hands of employees, without being reflected anywhere.

And often, when parting with an employee, such an employer either does not pay him anything at all, or pays only what is written in the employment contract. What can be done here?

In contact with

In what cases can you recover after dismissal

First of all, it is worth understanding what the relationship between an employee and an employer who does not draw up an employment contract is. However, the work itself was performed - therefore, it must be paid.

In this case, this method helps: by any means, the fact that the person worked unofficially is recorded.

Anything can be here:

Any documents that could be found. For example, if there are no accounting statements, but there are simply lists indicating the amounts for which employees signed, and a copy of such a list was obtained, this is excellent evidence.

Testimony of witnesses who saw the fact of work (best of all, when they also collect wages - and confirm each other's words).

Dictaphone recordings, videos, photos, etc.

Based on all this evidence, a statement of claim is prepared and submitted to the court. In it, the plaintiff requires payments not for labor activity, but for work performed or services rendered - within the framework of civil law.

It is impossible to predict in advance how successful such a move will be. However, there is a chance of winning the case with sufficient evidence.

What to do before dismissal

If “black” or “gray” wages are not paid, but the employee has not left yet, there is a way to put pressure on the employer.

The fact is that payments “in an envelope” are almost always tax fraud. Therefore, in a conversation with the employer, you can hint that you are going to complain to the local tax office. Sometimes it helps to get paid in full.

True, it is worth remembering: most likely, after that you will have to leave - it is unlikely that the owner will tolerate an obstinate worker.

In addition, you need to remember: a black salary is a double-edged sword. The employer breaks the law - but the employee also hides his income and does not pay VAT. Usually there are not the amounts due to which the tax authorities will start a case - however, there is a risk that the employee will be held liable.

You can also go to court, but not for the recovery of unpaid amounts, but with a demand to recognize the employment contract as concluded. The point is that Art. 16 of the Labor Code of the Russian Federation indicates that labor relations arise from the moment when the employee was allowed to perform work - even if the employment contract was not concluded, or was concluded with violations. In this case, the problem will not be so much in proving the fact of work, but in the specific amounts of a gray or black salary.

Where else to complain

In addition to the tax worker who is not paid a black or gray salary, it makes sense to write a complaint to the prosecutor's office. Employees of this body will not help to recover money, but the materials of the check may turn out to be evidence in court.

In addition, the very fact of applying to the prosecutor's office may force the employer to pay the missing amount. This, however, applies more to psychological pressure– but, however, the method quite often works.

Complaints can be filed either by mail or in person. If you call the prosecutor's office, you can find out how and when such a reception is carried out even from the prosecutor himself. Assistants are accepted on any working day.

Much more effective is the appeal to the labor inspectorate. This can be done both in the traditional way, by writing a statement and giving it to the duty officer, or using online services. In the latter case, you still have to fill out an application on paper - but the inspectors will start acting earlier.

If the fact is proved that people work at an enterprise or at an individual entrepreneur without employment contracts, a rather significant fine awaits him. Therefore, it should be noted that the threat to contact the inspection can be used in negotiations with the employer.

In accordance with the requirements 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 transferred to the employee, the other is kept by the employer. The receipt by the employee of a copy of the employment contract must be confirmed by the signature of the employee on the copy of the employment contract kept by the employer.

At the same time, in accordance with the second part of Art. 67 of the Labor Code of the Russian Federation, an employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. When the employee is actually admitted to work the employer is obliged to draw up an employment contract with him in writing no later than three working days from the day the employee was actually admitted to work.

Thus, an employment contract has been concluded with you, but it has not been executed by the employer in accordance with the requirements of the law, and this violation the employer of labor legislation falls under the sanctions provided for by Art. 5.27 of the Code of Administrative Offenses.

In addition, in accordance with Art. 70 of the Labor Code of the Russian Federation, the absence of a test clause in the employment contract means that the employee is hired without a test. In the case when the employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), the test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work. Since there was no such agreement in your case, the employer's statements that you had a trial period were unlawful.

From the point of view of legal qualification in your case, everything is very clear - the employer grossly violates labor laws and administrative liability may be imposed on him under Art. 5.27 of the Code of Administrative Offenses and imposed an obligation to eliminate violations of labor laws.

The most difficult in your case is the process of proving the existence of an employment relationship and wages. In this regard, you need to collect evidence of your labor activity, your official duties and, if possible, wages. If this condition is difficult to fulfill, subsequently in court it will be possible to be guided by the average level of wages in the Russian Federation or in the region (in the Russian Federation 22.8 thousand), or the level of the minimum wage (4611 rubles). The court generally prefers to be guided by the second, however, basing its claims on the average level of wages sometimes brings success.

On the this moment you can write a complaint to the Prosecutor's Office and/or to State Inspectorate labor with a description of all violations in your enterprise or what you consider as such. The act of inspection will have significant force for the court, in addition, violations of the inspection of the prosecutor's office and in accordance with the decision on bringing to administrative responsibility and the order of the State Labor Inspectorate can be eliminated much faster.

When contacting these authorities, you must provide your full name, but you may indicate that you fear abuse, discrimination or misconduct by the employer, which may result in forced dismissal or unreasonable disciplinary action.

Moreover, this happens not only in "gray" firms, but also where salaries are paid completely officially. There are many reasons for not registering employees, and each director has his own.

But is it so good not to design a newly arrived employee? What consequences can the director and the firm itself expect if labor laws are not observed? Is this risk justified for the company and the business as a whole? Consider in this article.

Disguise of an unformed worker

In "white" companies, often the only problem they see is the need to somehow formalize payments for the work that an unregistered employee does. To do this, the salary due to him is accrued and given to someone else:

• (or) conclude an employment contract with a person indicated by the employee himself;
• (or) arrange an internal combination by another employee of the company who transfers money to an unregistered employee.

In the name of this person, insurance premiums and personal income tax are accrued.

Well, where money is given for work "in an envelope", they do it easier - they draw up an employment contract in one copy with an "empty" date and keep it ready, so that in which case they pretend that this person has just been accepted (for registration of a labor of the contract, the Labor Code allocates 3 days from the moment when the person started work).

What troubles await the company?

However, the presence of such an employee can be a ticking time bomb for the company. After all, if a person, with the knowledge and on behalf of the employer, started work, then, despite the fact that the employment contract has not been drawn up, it is still concluded. This means that the company automatically has all the related obligations, both to the employee and to the state. And for the failure of each of them - its own responsibility.

Everything can open up, for example, as a result of an accident with this employee on your territory or a conflict with him, after which he complains about not registering relations with the labor inspectorate, funds, tax office, the prosecutor's office, go to court, etc. For them, this may be a reason to conduct checks on you.

Attention! For tax officials, information received from citizens about the failure to formalize labor relations is one of the reasons to include the company in the plan of on-site inspections.

And if the fact of your work is proved by the court, where the employee will apply, or if this fact is considered proven by the inspectors, expect trouble. And sometimes, as evidence of hiring, the court only needs testimonies (former or current employees, clients and other counterparties with whom the unregistered employee dealt).

Trouble 1. Directors and the company will be held administratively liable for violation of labor laws. For the company, this is a fine from 30,000 to 50,000 rubles. For the director - a fine from 1000 to 5000 rubles.

The statute of limitations for bringing to justice is 2 months from the date of the violation. A violation here will be not only the failure to draw up an employment contract in itself, but also the failure to fulfill each of the obligations of the employer arising from relations with this employee (failure to familiarize the employee with internal documents, not making an entry in work book, lack of a job order, failure to conduct mandatory medical examinations, non-disbursement of funds personal protection etc.).

They will be fined for the most recent violation, for example, for engaging in work on a day off without written consent.

If the director has already been fined during the last year for at least one of the same "labor" violations, then he is threatened with disqualification for a period of 1 to 3 years. Disqualification can be within a year from the date of the repeated violation. Referring to the fact that the employee himself refused to sign the employment contract, most likely, will be useless.

Trouble 2. The inspection and funds will accrue personal income tax, contributions, penalties and fines until they prove that an unregistered employee received a black salary. And if in order to pay an unregistered employee a "white" salary, it was accrued to another person, then it is in your interests to re-register payments in accordance with reality in order to reduce additional charges. But in this case, it will not always be possible to completely avoid additional charges. Insurance premiums may be arrears if:

• (or) the employee and the person who was issued instead of him, different age. Then the contributions paid to the FIU may be incorrectly distributed into the insurance and funded parts;
• (or) the salary of an unregistered person was accrued to another employee of the company for "combining" and the annual income of the latter, taking into account the additional payment, exceeded 512,000 rubles, and without it, it falls short of this amount.

Similar problems can arise with personal income tax, because everyone has their own deductions.

Trouble 3. Tax and funds will be fined for failure to report on an unregistered employee. Possible penalties:

• for not submitting personalized accounting information for an unregistered employee and, if the salary of an invisible employee was accrued to another employee, for false information about the person to whom his salary was accrued. Penalty for the company - 10% of the amount of contributions from the salary of each of them for each of the reporting periods, a fine for the director - from 300 to 500 rubles;
• non-delivery of 2-personal income tax for an unregistered employee. Penalty for the company - 200 rubles. for each certificate not submitted, for a director or chief accountant - from 300 to 500 rubles.

Trouble 4. If an accident occurs with an unregistered worker on your territory, you will need to notify a number of government agencies (including the labor inspectorate and the prosecutor's office) and appoint an investigation. For an attempt to hide an accident, the company can be fined from 5,000 to 10,000 rubles, and the head - from 500 to 1,000 rubles.

The insurance coverage for the injured employee, despite the fact that it was not issued, must be paid by the FSS (if the employee applies there). However, if the employee received a "black" salary, the Fund is likely to require the company to reimburse the amount of insurance coverage, presenting a so-called recourse claim against it. If the salary was "white" (that is, contributions for "unfortunate" insurance were paid from it), but it was accrued to another person, and after the accident it was possible to reissue it to the injured employee, then the Fund should not have claims.

If an unregistered employee did not sign in the general journal that he was instructed in labor protection, safety rules and training in safe methods and techniques for performing work, then the directors may be considered guilty of causing harm to his health. For this, criminal liability is provided: from a fine of 200,000 rubles. up to a "term" of 4 years - depends on the severity of the consequences of the accident.

Trouble 5. In the event of an insured event with an employee, he will demand, through the labor inspectorate, the payment of sick leave benefits or maternity benefits. For example, an employee who at first refused to register, and later, joining the ranks of expectant mothers, decided to replay everything in order to receive maternity and "children's" vacation pay. The allowance will have to be paid out of your own pocket. However, if contributions to the salary of an unregistered employee are accrued before, the FSS must reimburse the amount of the allowance.

Trouble 6. If you paid an unregistered employee a salary "in an envelope" and he did not sign anywhere to receive it, he can cheat - he will deny that he received a salary and demand it from you again, and even with compensation for the delay. The amount of compensation is 1/300 of the refinancing rate of the amount of delayed wages for each day of delay. When there is no written agreement on the amount of salary, labor inspectors can calculate compensation based on either the minimum wage or the salary established by your pay regulation ( staffing), and from the work schedule for the position in which the employee worked.

Trouble 7. The employee will refuse to compensate for the losses caused to the company, and the court can support him.

Such a case is known. The court established the fact of the work of an unregistered employee and awarded him unpaid wages and compensation for unused vacation. Despite this, the court refused the company to recover from this employee the losses that arose due to the fact that after the end of the last shift before the dismissal, he did not hand over the documents belonging to the employer.

The court's motivation is as follows: firstly, the employment contract was not drawn up, which means that the employee did not have the obligation to hand over documents at the end of the shift. Secondly, since the inaction of a company that has not executed an employment contract is "not in the legal field," it is not entitled to seek judicial protection of its interests and "must bear the adverse consequences of its inaction."

In custody

It is never possible to predict with complete certainty how this or that person will behave and how circumstances will turn. And even if liability and additional charges can be avoided, there will be plenty of hassle with the inspectors. In addition, sometimes directors do not think of things that are completely obvious to an accountant, for example:

• an unregistered employee cannot pass a mandatory medical examination;
• if he is a financially responsible person and an agreement will be concluded with him on the full liability, this will be an extra proof of employment, because such an agreement is possible only as an addition to the labor one;
• he will not be able to officially issue cash on account;
• it will not be possible to draw up reliable primary documents that require his signature, such as waybills.