An employment contract between an individual entrepreneur and an employee: the rules for concluding a contract and the nuances of paperwork. Fixed-term employment contract - not for everyone Fixed-term employment contract taxation per year

An accountant's unauthorized salary is not subject to insurance premiums

If the chief accountant regularly transferred his salary in a larger amount than specified in the employment contract, the amounts of such excess are not included in the contribution base.

Electronic claims for taxes and contributions: new referral rules

Recently, the tax authorities have updated the forms of claims for payment of debts to the budget, incl. on insurance premiums. Now the time has come to correct the procedure for sending such requirements to the TCS.

Payslips are optional

Employers do not have to provide employees with paper payslips. The Ministry of Labor does not prohibit sending them to employees by e-mail.

"Physicist" transferred payment for goods by bank transfer - you need to issue a check

In the case when an individual has transferred to the seller (company or individual entrepreneur) payment for the goods by bank transfer through the bank, the seller is obliged to send a cashier's receipt to the “physics” buyer, the Finance Ministry believes.

The list and quantity of goods at the time of payment are unknown: how to issue a cash register receipt

The name, quantity and price of goods (works, services) are obligatory details of the cash register receipt (SRF). However, when receiving an advance payment (advance), the volume and list of goods is sometimes impossible to determine. The Ministry of Finance told what to do in such a situation.

Medical examination for those working at the computer: is it necessary or not

Even if an employee is busy working with a PC for at least 50% of his working time, in itself this is not a reason to regularly send him for medical examinations. Everything is decided by the results of certification of his workplace for working conditions.

Changed the operator of electronic document management - inform the IFTS

If the organization has refused the services of one operator of electronic document management and switched to another, it is necessary to send an electronic notification about the recipient of the documents to the tax office via the TCS.

Sample Employee Employment Agreement

When employed, an employee may be offered to conclude not an employment contract, but an employee employment contract. The conclusion of such an agreement entails different consequences for both parties than in the case of an employment contract.

Hiring employees under civil law contracts

To perform certain tasks that do not require permanent employment of an employee, an organization may conclude civil contracts with individuals (hereinafter referred to as GPC contracts), in particular:

For the employer, the employment contract without paying taxes (part of the UST) is quite attractive. Therefore, such contracts are subject to checks and special attention from the tax authorities. Often employers cover up labor relations with GPC contracts in order to avoid paying mandatory payments.

The differences between an employment contract and an employee employment contract are shown in the table.

Parties to the contract - employer and employee

Parties - customer and executor, commission agent and principal, principal and attorney, principal and agent

The work book is filled

Employment book is not filled

The employee personally performs the labor duties provided for by the contract and job description

The contractor performs work (renders services) stipulated by the contract and the customer's assignment. Other persons may be involved in the work

Internal regulations are binding on the employee

The performer is not subject to the internal regulations

The employee has the right to demand from the employer the provision of working conditions

The customer does not provide the contractor with working conditions

The salary is indicated in the contract in accordance with the employer's remuneration system

The cost of work (services) may not be indicated in the contract

The employee has the right to paid leave, sick leave, benefits, days off

The contractor is not provided with social guarantees

The employer pays personal income tax and social, medical and pension insurance contributions for the employee

The customer has no obligation to pay insurance premiums

The employer has the right to impose disciplinary sanctions on the employee, but not fines

The contract may contain conditions on penalties for violation of obligations

The employee is liable for actual material damage caused to the employer

The contractor is responsible for the death of the result of the work before their acceptance and the safety of the property transferred to him by the customer

Temporary employee employment contract

Labor legislation provides for two types of labor contracts for the duration (Art.58 of the Labor Code of the Russian Federation):

  • urgent - for a period not exceeding 5 years;
  • for undefined period.

Unlike an employment contract, hiring employees under civil law contracts is always temporary (urgent). The term in this case is determined by the term of performance (provision) of the works (services) provided by them.

When a GPC contract becomes an employment contract

When concluding an employment contract for an individual entrepreneur and organizations, it should be borne in mind that the mention in the text of the contract of provisions inherent in the design of labor relations may entail the retraining of the employment contract into an agreement that is subject to labor legislation.

Examples of such clauses are indications that:

  • the contractor is obliged to comply with the internal regulations of the customer;
  • payment for work is made twice a month;
  • the contractor is provided with a workplace, equipment, overalls, etc.

The following circumstances may also raise suspicion among the tax authorities:

  • if an individual entrepreneur or an organization has concluded more GPC contracts than labor contracts;
  • if employees of an individual entrepreneur or organization perform similar functions with those provided for by GPC contracts;
  • if employees of an individual entrepreneur or organization were transferred from labor to GPC contracts providing for the performance of similar functions.

If the employment contract is recognized as an employment contract, the employer will be obliged to pay the employee vacation, sick leave and make mandatory contributions to the Pension Fund of the Russian Federation, the MHIF and the FSS.

Download a sample employee employment contract

Also read:

Peculiarities of the contract of hiring an employee without paying taxes

Within the framework of the law, any work activity is documented. All rules are governed by the Labor Code of the Russian Federation, it spells out all the obligations and rights of both parties represented by the employer and the employee (including information on the payment of sick leave after dismissal). It is imperative to know how to properly draw up a contract so that the parties do not have disagreements and no one violates the law.

Employment agreement - what does it mean?

An employment agreement is a document that is considered an agreement between two or more persons, the subject of which is an indication of instructions, work volumes, deadlines and a number of other nuances. The document must necessarily spell out the civil rights of the employees being hired, methods for resolving disputes and the grounds for terminating cooperation.

In the Labor Code of the Russian Federation there is no concept of "employment agreement", it is replaced by the term "employment agreement". Based on the Constitution of the Russian Federation, each person has every right to decide for himself on what conditions he will work and in what place. Documented, the employment agreement defines the right of the subject of the Russian Federation to work, which is considered free. That is why the employee can terminate the employment contract at any time, and the managers of the company have no right to refuse their employee this. It is also better to draw up an employment contract with a foreign worker in accordance with all the rules of the Labor Code of the Russian Federation.

Read also: A day to look for a job while downsizing

Advantages and disadvantages of an employee employment contract

As you know, any agreement in any field of activity has its own disadvantages and advantages. The advantages of a contract of employment for both parties include:

  • there is no mandatory payment of social tax (which means that you do not have to think about how much is not taxed on the child when calculating the salary);
  • bonus money is paid based on the results of the transaction;
  • the employee has every right to set the length of the working day himself, because the employer in this case is only important about the result;
  • the employer has the right not to give any guarantees, but he must act within the framework of the Civil Code of the Russian Federation.

In addition, for the employer, the employment contract has a number of disadvantages:

  • managers cannot punish their employee for breaking the schedule;
  • the manager cannot constantly monitor the progress of work, since the employee has the right to dispose of the length of the working day himself;
  • the employer is legally obliged to engage in entrepreneurial activity. Otherwise, he risks receiving charges of illegal business conduct in his address.

Advice: it is important not to use labor law terms in the employment contract. This is considered a violation of the structure of the agreement.

What must be stated in the employee's employment contract?

First of all, it is worth noting that the contract itself is concluded between the employee, the contractor, the author and the customer, who in the future will be obliged to make cash payments.

The main points of the agreement are:

  • the correct names of the parties to the agreement, as well as the date and place of the contract of employment;
  • detailed information about the work. This item includes the work schedule, place of work, main responsibilities, information about the position and the payment of remuneration;
  • the deadlines in which the employee must meet and provide the customer with the result on time must be fully spelled out;
  • all types of liability provided for by the Civil Code of the Russian Federation;
  • obligations and rights of the parties;
  • parties' addresses and full contact information.

The tax authorities are always interested in re-qualifying the contract and getting the opportunity to charge taxes. That is why compliance with all the listed nuances and rules is very important. In addition, the employer can ask the employee's TIN, which is why it is worth taking care of how to find out your TIN via the Internet.

Key points in drafting an employee employment contract

Before drawing up an employment contract, it is important for both the employer and the employee to carefully read the document samples. For this, it is better to use only reliable sources, because any overlooked trifle or outdated information can turn into a major conflict between the parties.

To prevent the employment contract from being retrained into labor relations, it is necessary to exclude from the contract:

  • detailed schedule of the day;
  • vague terms of the contract;
  • fixed salary, which is paid twice a month;
  • information on the issuance of equipment and workplace to the employee.

In addition, do not forget that most often the court takes the side of the employee of the enterprise. That is why, before starting to draw up an employment contract, it is better to immediately discuss all the nuances and details orally and sign all documents only after the employee being hired fully agrees with all the conditions. By the way, it would be useful to raise the topic of what documents are needed when applying for a job. If the work was short-term, then the court will most likely consider the contract in terms of simple employment, and not full-fledged labor relations.

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So, when drawing up a contract for the employment of an employee, it is important first of all to use samples from trusted sources. Even a small and seemingly insignificant proposal can greatly influence the course of further events. Secondly, special attention should be paid to the contact information of all parties to the agreement. After all, the contract can be terminated even when you don't expect it. And this is where the contact information of the employee or employer may be needed.

Sample Employee Employment Agreement

In what cases is a temporary employment contract concluded with an employee for an individual entrepreneur

  • Document information

A temporary employment contract with an employee for an individual entrepreneur is concluded according to the rules prescribed in the Labor Code of the Russian Federation. The main difference between a fixed-term contract between an employee and an employer from an unlimited one is that it is valid until the onset of an earlier agreed day or certain events. This fact is required to be indicated in the agreement.

Document information

Termination of the contract occurs after the following events:

  • the coming of the exact date specified in the document;
  • completion of the work for which the employee was hired;
  • the exit of the previous employee from maternity leave or after illness.

For example, an individual entrepreneur makes a summer cafe in the warm season, he needs waiters, cooks, cleaners, but for a period from May 1 to September 30. Or a businessman needs people to repair a warehouse. He can conclude an agreement with any company that performs such work, or hire citizens under an employment contract valid until the completion of the repair of the premises.

Temporary employees are often needed for women who are on parental leave. But there may be such a situation that a permanent employee cannot fulfill his job duties for health reasons, for example, he was in a car accident or was injured as a result of a natural disaster. Then the employment contract states that the temporary worker is considered dismissed from the day the person leaves the decree or sick leave.

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How to draw up a temporary employment agreement

When hiring a citizen for work, he will need a passport, work book, insurance certificate (SNILS), education documents, military ID. Sometimes the specifics of the work presupposes the presence of other documents, for example, a certificate of no criminal record, a driver's license, a medical book, etc.

A form for a temporary employment contract between an individual entrepreneur and an employee can be developed independently using another fixed-term agreement between the employer and the employee.

Read also: Order on granting maternity leave - sample

The following provisions must be prescribed in the text of the contract:

  • information about an individual entrepreneur (TIN, OGRNIP, address, full name, phone number);
  • citizen's data (name, place of residence and registration, by whom, when and where the passport or other identity card was issued);
  • day and place of signing;
  • date of the first working day;
  • date of the last business day or event after which the agreement is considered terminated (for temporary contracts);
  • job title and specific place of work;
  • obligations and rights of the parties to the agreement;
  • the size and procedure for issuing salary;
  • work schedule, what kind of vacation is due;
  • social guarantees;
  • compensation for difficult or health-threatening conditions for performing work duties;
  • other important conditions;
  • signatures, seal or mark "b / p".

Other important conditions may include the availability of business trips, the material responsibility of the person, etc.

An employment contract concluded for a certain period of time must necessarily indicate that it is urgent. In the next paragraph, it is required to put down the end date of the work or an event after which the agreement ceases to be valid. For example, before leaving the parental leave, Karaseva E.M.

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Termination of a temporary contract between an employer and an employee

The contract is concluded for a certain period. Most individual entrepreneurs think that when the last working day specified in the document comes, the employee is considered dismissed and nothing else needs to be done. However, the termination process is completely different.

If an employee is hired for seasonal work or for a specific task, then he must be notified in writing of the date of termination of the employment agreement 3 days before the last working day. Otherwise, the fixed-term employment contract will become indefinite. If a person works instead of another employee, then it is required to inform him about the dismissal on the day the permanent employee leaves his workplace.

The notification is drawn up in writing in 2 copies. The temporary worker must put his signature on one form and return it to the employer, and take the second for himself. Full name must be indicated in the text of the document. employee, number and date of signing the terminated labor agreement, the day of termination.

A fixed-term employment contract may be terminated earlier than the term specified in it at the request of the employee, by the general decision of the parties, or at the initiative of the employer. In these cases, the dismissal occurs according to the same rules as for an open-ended contract.

Employment contract of an individual entrepreneur with an employee

information about the identity document;

details of the certificate of registration as an individual entrepreneur;

If the contract is concluded not by the entrepreneur himself, but by an employee or otherwise authorized person hired for this, his details are additionally indicated in the document.

Place and working conditions

The form of an employment contract between an individual entrepreneur and an employee must contain a section describing the place of work and the requirements for its implementation. Lawyers recommend prescribing in detail all the employee's job responsibilities. But you can also limit yourself to the phrase that before the contract was signed, the employee was familiarized with the job descriptions against signature, additionally reflecting this fact in the agreement itself.

As for the section on the place of employment, the wording “Place of work: individual entrepreneur Ivanova A.A. registered at Moscow, st. Puteyskaya, 3 ". And you can register a specific address of the production or store where the person will work. The fact is that labor legislation separates the concept of "place of work" and "workplace" (Article 209 of the Labor Code of the Russian Federation). The first is a prerequisite of the agreement, and the second is an additional one, which you can do without. It should be remembered that if you specify a specific address of a production or store, and later it changes, you will have to conclude additional agreements to all contracts.

Contract duration

Art. 59 of the Labor Code of the Russian Federation allows, by agreement of the parties, to conclude an employment contract with an individual entrepreneur in 2016 for up to 5 years, even if the employment is not temporary or urgent. This condition applies to private businessmen who employ no more than 35 people (no more than 20 - if trade or consumer services are provided). If the employee requires an indefinite relationship, the refusal of employment can be regarded as a violation of the law (Article 64 of the Labor Code of the Russian Federation).

Grounds for dismissal

According to Art. 307 of the Labor Code of the Russian Federation. at your own discretion, any grounds for terminating the agreement can be entered into the sample labor contract for individual entrepreneurs. The main thing is that they are not discriminatory. For example, a store owner can fire a seller for not issuing a check or avoiding using a CCP, since this is his direct responsibility. But the law prohibits the reduction of an employee if his qualities change, which do not affect the quality of performance of official functions.

In order to exclude legal proceedings in the future, the employer cannot dismiss the offending employee immediately. He is obliged to comply with the entire procedure for applying disciplinary sanctions - first to issue a warning, then a reprimand, and only then terminate the contract.

Employment contract of individual entrepreneur with an employee sample of 2016

Employment contract of individual entrepreneur with an employee in 2017: sample and form

If you decide to recruit employees to your business team, you will need an employment contract. It, like an airbag, will protect you from many controversial situations and avoid problems with legislation. There have never been clear requirements for filling out the document, except for the presence of mandatory details... So in 2017, but something has changed - businessmen whose firms fall into the rank of microenterprises will be able to use a standard form specially developed for an individual entrepreneur's employment contract with an employee. What for? To abandon the numerous personnel documentation that he replaces. The article answers the question of how to draw up a regular contract and a standard one.

Can individual entrepreneurs enter into a TD

The Labor Code states that both legal entities and individuals can join the number of employers. The latter are subdivided:

  • For individuals with the status of an individual entrepreneur;
  • Individuals without status, concluding contracts with other people who will serve them or perform any work.

According to labor legislation, individual entrepreneurs can conclude an employment contract with individual entrepreneurs. Such a document is drawn up in a standard manner, but in the header of the contract it should be indicated that both parties have the status of an individual entrepreneur and the details of the corresponding certificates.

Model contract 2017: download the form

Since 2017, all individual entrepreneurs and organizations that fall under the concept of micro-enterprises will be able to apply a standard form of an employment contract. The sample of the standard form developed for a new employment contract between an individual entrepreneur and an employee is distinguished by a more capacious content, which is 99% consistent with all legislative norms. And replaces a whole list of regulations that some employers can now refuse:

  • Payment clause;
  • Labor regulations;
  • Labor protection instructions;
  • Job descriptions;
  • Shift schedule.

As a general rule, a labor contract is concluded with any employee who works in the organization. It regulates the relationship between employer and employee.

One of the options for an employment contract with an employee is the conclusion of a fixed-term employment contract. When registering it, it is worth considering the formalities that will help avoid claims when checked by the labor inspectorate. These, in particular, are the specific period for which the contract is signed, as well as the grounds for its conclusion.

With whom to conclude?

Usually a fixed-term employment contract is concluded in two cases. The first is when labor relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its performance. For example, for the duration of the duties of an absent employee who retains a place of work (maternity leave).

A fixed-term employment contract must be concluded when performing temporary (up to two months) or seasonal work, when, due to natural conditions, it can only be performed during a certain period, season.

Such an agreement is also concluded with employees sent to work abroad. You must sign an agreement with them for a period not exceeding three years (Article 338 of the Labor Code of the Russian Federation). At the end of three years, the employment contract will have to be renegotiated for a new term.

Labor law obliges to sign fixed-term employment contracts when carrying out work outside the usual activities of the employer. For example, reconstruction, installation, commissioning and other works.

Need to know

A fixed-term employment contract can be concluded in two cases: by agreement of the parties and depending on the nature of the work performed.

It is also necessary to conclude a fixed-term employment contract with employees performing temporary (up to one year) work. In particular, if it is work related to the expansion of production or the volume of services provided.

A fixed-term employment contract is also concluded with persons applying to work in organizations created for a predetermined period (or when this period cannot be precisely determined), as well as for performing a predetermined job.

It is worth remembering that a fixed-term employment contract must be signed with personnel who are aimed at performing work directly related to internships and vocational training. The story is the same when an employee is sent by the employment service to work on a temporary basis or community service.

The second situation, when a fixed-term employment contract is required, is the performance of work without taking into account its nature and conditions of performance. For example, such an agreement is concluded with employees who come to work for employers - small businesses (including individual entrepreneurs), the number of whose employees does not exceed 35 people. For retail and consumer services, the minimum number is 20 people.

A fixed-term employment contract is concluded with old-age pensioners entering work, as well as with persons who, for health reasons, in accordance with a medical certificate, are allowed to work exclusively of a temporary nature.

Special rules

The maximum term for concluding a fixed-term employment contract is five years.

In addition, a fixed-term employment contract is concluded when the company is located in the Far North and equivalent areas, if employment is associated with moving to the place of work.

A fixed-term employment contract can be concluded with managers, deputy managers and chief accountants of organizations, regardless of organizational and legal forms and forms of ownership.

The list of cases in which a fixed-term employment contract can be concluded is open, therefore it can be concluded in other situations that are permitted by law, for example, when carrying out urgent work to prevent accidents, accidents or other emergencies. However, such an agreement must also contain information and mandatory conditions under which it is considered concluded. In particular, it is necessary to indicate the place of work, labor functions, information about the parties to the contract, and others (Article 57 of the Labor Code of the Russian Federation).

Term of imprisonment

A fixed-term employment contract is an agreement in which the term of its validity is determined (Article 59 of the Labor Code of the Russian Federation). This rule means that the contract must contain a specific period for which the employee is hired. Otherwise, the contract is automatically transferred to the category of unlimited.

The end of the term of such an agreement may be the occurrence of certain events (for example, the employee who was replaced, came out of vacation or the end of seasonal work) or a certain date.

The maximum term of an employment contract is five years (Article 58 of the Labor Code of the Russian Federation). As for the minimum period, it is not regulated by law. It can be concluded for a month, for a week, or even for one day. If a fixed-term employment contract is signed for one day, then the employer must have a justification for concluding such a contract. In this case, it is much more profitable to conclude contracts of a civil nature (contract, paid provision of services).

Multiple renegotiation of a fixed-term employment contract for a short period of time to perform the same job function is a reason for retraining into an agreement concluded for an indefinite period (Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

However, if an employee was replacing another employee and he went to work, then with the "conscript" you can terminate the current contract and, by agreement of the parties, conclude a new fixed-term employment contract.

Basis of conclusion

A fixed-term employment contract must contain the grounds on which it is urgent. For example, this is the performance of seasonal work, in connection with which the employee is hired for several months, or work abroad. Such circumstances must be listed in the employment contract. In the absence of sufficient grounds capable of qualifying the contract as urgent, the regulatory authorities will consider its conclusion illegal and establish it as an agreement concluded for an indefinite period.

Therefore, the employment contract must contain the reason (grounds) and the period for which it is concluded.

Registration

When hiring under a fixed-term employment contract, in the order for hiring under form No. T-1 or T-1a you need to indicate the expiration date of its validity or an event that will serve as the basis for its termination, for example, the employee's exit from parental leave.

Attention

Payments under a fixed-term employment contract are subject to both personal income tax and contributions to funds in a general manner.

In addition, in the section "Conditions of employment, nature of work" should indicate that the employee is hired for a certain period, and (or) the performance of specific work. For example, “under a fixed-term employment contract in connection with being sent to work in Amsterdam” (see a sample sample of filling out an order for employment under a fixed-term employment contract).

Nuances of work

Having concluded a fixed-term employment contract with an employee, the organization's accountant must comply with certain conditions. So, if none of the parties demanded the termination of such an agreement due to the expiration of its validity period and the employee continues to work, the condition of the urgent nature of the employment contract becomes invalid. Then the employment contract is considered concluded for an indefinite period (Art. 58 of the Labor Code of the Russian Federation).

Upon the expiration of a fixed-term employment contract during a woman's pregnancy, the employer is obliged, upon her written application and upon providing a medical certificate confirming the state of pregnancy, to extend the term of the employment contract (until the end of pregnancy). Such an employee, at the request of the employer, is obliged to submit a medical certificate confirming pregnancy once every three months.

Employees working under a fixed-term employment contract are prohibited from establishing a probationary period (Article 289 of the Labor Code of the Russian Federation).

Employees with whom an employment contract has been concluded for a period of up to two months, with their written consent, can be involved in work on weekends and non-working holidays. Work for these days is compensated in cash at least twice. Recall that, as a general rule, for work on a weekend or a non-working holiday, an employee can be provided at his choice either with monetary compensation or the right to an additional day of rest (Article 153 of the Labor Code of the Russian Federation). However, "conscripts" cannot take another day for rest, but only monetary compensation.

An employee who has entered into an employment contract for up to two months is not paid severance pay upon dismissal. However, otherwise may be established by agreement of the parties by a collective or labor agreement or federal laws (Article 292 of the Labor Code of the Russian Federation).

"Conscripts" are provided with paid vacations or compensation is paid upon dismissal at the rate of two working days per month of work (Article 291 of the Labor Code of the Russian Federation).

An employee who has entered into an employment contract for up to two months, in the event of its termination, is obliged to notify the employer in writing three calendar days in advance. If the employer plans to dismiss such an employee in connection with the liquidation of the organization, reduction of the number or staff, it is necessary to notify the employee in writing against signature at least three calendar days in advance (Article 292 of the Labor Code of the Russian Federation).

Yu.L. Ternovka, expert editor

Sometimes a company needs one or another specialist for a certain period of time. In this case, it is convenient to conclude a fixed-term employment contract. Practice shows that not everyone knows how to do it correctly and what features of taxation should be taken into account.

As a general rule, a fixed-term employment contract is concluded when an employment relationship cannot be established for an indefinite period due to the nature of the work ahead or the conditions for its performance (Article 58 of the Labor Code of the Russian Federation). It is important to remember that the conclusion of such an agreement, unless, of course, it is directly stipulated by law, is a right, not an obligation of the parties. The initiative to establish the terms of its validity in an employment contract can come from both the employer and the employee. Moreover, the Labor Code contains a list of situations in which it is possible to conclude a fixed-term employment contract on the initiative of one of the parties (Article 59 of the Labor Code of the Russian Federation).

The list provides for about 20 cases when the terms of the labor agreement are allowed to set the term of its validity, in particular:

  • when replacing an absent employee, for whom, according to the law, the place of work is retained;
  • when carrying out work that goes beyond the usual activities of the organization (reconstruction, installation, commissioning and other work);
  • when performing temporary (up to two months) or seasonal work;
  • when concluding contracts with managers, deputy managers and chief accountants of organizations;
  • when concluding contracts with part-time workers;
  • when concluding an agreement with students who study at full-time departments of universities.

A fixed-term employment contract can also be concluded if the employer is a small business or an individual. Provided that the number of employees of small enterprises does not exceed 35, and in retail trade and consumer services organizations - 20 people (Article 59 of the Labor Code of the Russian Federation). However, we note once again that in any case, it is allowed to establish the period of validity of an employment contract only when it is not possible to conclude an unlimited contract. The exception is employers who are individuals. They are allowed to conclude a fixed-term employment contract by agreement of the parties, which follows from Article 304 of the Labor Code of the Russian Federation.

Features of a fixed-term employment contract

There is an opinion that a fixed-term employment contract is beneficial to the employer, since the employee has fewer rights in this case. However, this statement is debatable. Firstly, it is forbidden to conclude fixed-term employment contracts in order to deprive employees of the rights and guarantees that they are entitled to when signing perpetual agreements (Article 58 of the Labor Code of the Russian Federation). Thus, a fixed-term contract must necessarily contain a reference to the circumstance or reason that served as the basis for the conclusion of such an agreement. Secondly, almost all the rights and guarantees provided for by law apply to employees with whom a fixed-term employment contract has been concluded. Moreover, if such an agreement was not terminated after the expiration of the term and the employee continues to work, the agreement is considered concluded for an indefinite period.

The Labor Code does not require an employee to draw up or submit any special documents when concluding a fixed-term contract. As usual, it is enough for him to sign the agreement in writing, and the employer - to issue an order to hire a new employee. In the order, as in the contract, it makes sense to indicate that the contract is urgent.

General rules also apply when terminating a fixed-term employment contract. If the contract is terminated after the expiration of the term, it is necessary to notify the employee in writing at least three days in advance. An employment contract concluded for the duration of the duties of an absent employee is terminated when the latter goes to work. This is stated in article 79 of the Labor Code of the Russian Federation.

At the same time, one should not forget that for certain categories of workers, labor legislation provides for the specifics of regulating relations. For example, the contract expired during the woman's pregnancy. The firm is obliged, upon its application, to extend the term of the employment contract until it becomes eligible for maternity leave. This procedure is provided for by Article 261 of the Labor Code of the Russian Federation.

With regard to fixed-term employment contracts, one can also note situations when the Labor Code provides for a special procedure for regulating labor relations:

  • regulation of the work of the head of the organization (chapter 43);
  • labor regulation of workers who enter into an agreement for up to two months (chapter 45);
  • regulation of seasonal workers (chapter 46);
  • regulation of work of employees employed by employers - individuals (Chapter 48).

For example, when concluding an employment contract for a period of less than two months, an employee cannot be assigned a probationary period. When hiring an employee for seasonal work, the probationary period cannot exceed two weeks. These features must be taken into account when deciding to conclude a fixed-term employment contract.

Features of taxation

At first glance, the current tax legislation does not provide for any peculiarities in connection with the conclusion of a fixed-term employment contract. Nevertheless, in practice, when calculating personal income tax, accountants have difficulties.

When determining the amount of personal income tax withheld from an employee's income, attention should be paid to the application of standard tax deductions. As a reminder, the standard tax deduction is provided only with a written application from the employee. If an employee works on the basis of a fixed-term employment contract, part-time, he can apply for a standard deduction from any of the employers.

Problems can arise when a fixed-term employment contract is not concluded from the beginning of the year. If an employee has not worked anywhere for several months before signing the contract, questions arise about providing him with standard tax deductions for this period. Note that the right to a standard tax deduction is related to the receipt of income while working in the organization. These deductions are not provided for months when the employee was not associated with an employment relationship with the organization. Thus, the tax base of an employee can be reduced by the amount of standard tax deductions only for the period of work under a fixed-term employment contract. If the employee, before the conclusion of a fixed-term employment contract, received income from another employer, then the deductions are provided taking into account the income received.

For employees with whom a fixed-term employment contract is concluded, the same rules for maintaining tax cards (form 1-NDFL) apply as for other employees. Does not imply any peculiarities and filling out a certificate of income (form 2-NDFL).

It is beneficial for the employer to conclude contracts with new employees for a specific period instead of permanent contracts. This is due to the fact that knowing when the work of specific staff units ends, it is easier for the manager to plan the structure of positions and the salary fund.

In organizations that provide special conditions to permanent employees, and for temporary ones - providing only legally guaranteed rights, a fixed-term contract allows you to avoid additional spending on bonuses and other additional payments.

In addition, the employer can be sure that he will not have any special problems with the termination of cooperation with such employees, because they also make plans taking into account the upcoming dismissal and, being notified three days before the expiration of the contract, are already ready to leave the company.

Nevertheless, when drafting the Labor Code, the legislators took into account the likely tendency of employers to abuse fixed-term employment contracts and provided in Article 58 that, in the absence, in the court's opinion, of special grounds for choosing the temporary nature of the contract, it would be re-qualified into an indefinite one with the imposition of penalties on the employer.

With whom can you arrange temporary cooperation?

A detailed list of persons with whom it is lawful to conclude an agreement for a specific period is provided for in article 59 of the Labor Code. The foreseen cases can be divided into three categories, depending on the moment that determines the expiration date of the contract:

  • “Deputies” - until a permanent employee leaves for work, whose duties were performed during his long absence;
  • "Conscripts" - until the end of certain work:
  • obviously temporary;
  • going beyond the normal activities of the organization;
  • held abroad;
  • public nature;
  • in the form of an internship;
  • as an alternative service, etc.
  • "Seasoners" - until the completion of work related to natural and climatic features.

Also, by mutual agreement of the parties, it is possible to conclude contracts of a temporary nature with:

  • those who go to work in small businesses;
  • pensioners;
  • “Deputies” elected by competition;
  • managers and chief accountants;
  • full-time students;
  • part-time workers, etc.

But here it is important to remember that if such an employee decides to appeal against the urgent nature of his employment contract, and the court decides that on the part of the employee the decision on a temporary contract was not voluntary, then the employer will have to reinstate such an employee in his position on a permanent basis.

Contents of a fixed-term employment contract

The rules for drawing up for an employment contract of a temporary nature are almost the same as for an open-ended employment contract, and indicate the mandatory presence in the text:

  • information about the signatories - the name of the employer and the full name of the employee, their addresses;
  • passport data of the employee or information on other documents proving his identity;
  • TIN of the employing organization;
  • place and date of signing the contract;
  • place of work and position;
  • official salary;
  • working conditions;
  • social guarantees;
  • privacy issues, etc.

However, there are some peculiarities: unlike a contract for permanent cooperation, two more points must be stipulated in a temporary contract:

1) Its validity period, admissible in the form of:

  • a specific date - then this day will be considered the last day of the employee's work under this agreement;
  • the moment an event occurs - for example, the signing of an act of completion of work or the exit to work of an employee who was replaced by a "conscript" - then the dismissal will be postponed until this event occurs.

2) Justification of the temporary type of contract, preferably including the wording of the category of employees from the list of Article 59 of the Labor Code of the Russian Federation and an explanation of the conditions and nature of work, demonstrating the preference for choosing a fixed-term contract.

If in a fixed-term employment contract there is no precise definition of the moment of its termination, then it can automatically be recognized as indefinite. And if there is no justification for the temporary nature of the contract, the employer may face a penalty for evading the employee's rights provided for persons who enter into perpetual contracts.

What threatens for the unjustified conclusion of a fixed-term contract?

The temporary nature of the employment contract can be challenged in court. The court may decide to change the status of a contract to a permanent one when:

  • the employer in the text of the contract did not indicate the exact term for its termination;
  • with an employee for the same job duties several times in a row, fixed-term contracts are concluded;
  • the conditions were identified that allow one to assume that an employee is forced to conclude a temporary contract instead of an unlimited one;
  • the employer has violated the three-day deadline for notification of the end of the contract.

In all these cases, the employee will be reinstated in the position in court and on a permanent basis. In addition, he will rely on the employer to pay for the period from the moment of the annulled dismissal to the restoration (as for forced absenteeism), compensation for moral damage, costs for the services of lawyers, etc.

The employer, in the event of a judicial change in the status of the employment contract, may be brought to administrative responsibility under Article 5.27 of the Administrative Code of the Russian Federation in the form of:

  • for organizations - a fine from 30 to 50 thousand rubles. or suspension of activities for up to 3 months;
  • for officials - a fine from 1 to 5 thousand rubles, and in case of a repeated violation - disqualification from one to three years.

Probationary period for a fixed-term contract

To check the suitability of the candidate for the chosen position, his professionalism and competence, the employer has the right to establish a probationary period for the employee. If the employment contract does not say anything about such a period, then it is not provided for, and the employee immediately begins to work on a general basis. This is provided for by Article 70 of the Labor Code of the Russian Federation. However, if the probationary period is stipulated by the terms of the contract, then, according to general rules, it should not last more than three months.

The urgent nature of the employment contract makes its own adjustments to the envisaged length of the probationary period. When concluding a contract for the period:

  • less than two months - a probationary period cannot be established;
  • from two to six months - the test period cannot exceed two weeks;
  • from six months to five years - on a general basis.

In addition, the law provides for a list of persons who cannot be subjected to a probationary period. For example, pregnant women, minors selected for a position by competition, etc. So the appointment of tests under a fixed-term employment contract is possible and legitimate, but subject to a number of the listed conditions.

What to write to a temporary worker in labor?

When concluding a fixed-term employment contract, according to the letter of Rostrud dated 06.04.2010 No. 937-6-1, his validity is determined by the text of the contract itself and is not subject to reflection in the employment record in the work book.

The fact is that the purpose of keeping a book is to calculate the time of work experience, and it is carried out according to the dates of employment and dismissal, without taking into account the urgency or indefinite term of the contracts concluded. Thus, the wording introduced into the labor one will be: "Admitted to the position ...", and phrases like "A fixed-term contract has been concluded ..." will be recognized as erroneous.

Leave under a fixed-term employment contract

The urgent nature of the contract does not affect the employee's entitlement to annual paid leave. However, the number of days possible for rest will directly depend on the duration of cooperation between the employer and the temporary worker.

  1. Less than two months - 2 working (not calendar!) Days for each month of work.
  2. From two months to five years - in the usual way, i.e. 2.33 calendar days per month or 28 calendar days per year.

In the event that at the time of the expiration of the contract or dismissal for another reason, the employee has left the days of unpaid leave provided for by law, then he must be paid compensation in the amount of due vacation payments.

If an employee decides to take the days of legal rest immediately before dismissal and at the time of termination of the contract will be on official leave, then the last day of the vacation will be considered his last working day, and dismissal on the date appointed by the contract will not be the basis for recognizing the contract as indefinite.

Should I pay for sick leave with a fixed-term contract?

The law provides for employees with whom fixed-term employment contracts are concluded, the provision of social guarantees on an equal basis with permanent employees. Sick leave certificates provided by temporary employees must be paid in the prescribed amount and in due time.

The only limitation in force is due to the fact that the maximum days for sick leave compensation for workers with a fixed-term contract will be 75 days.

Is a temporary worker entitled to severance pay?

The availability of mandatory payments upon dismissal depends on the duration of the contract:

  1. Less than two months - no severance pay;
  2. From two months to five years - as when a permanent employee is fired: in the amount of two weeks' wages.

A similar amount is provided for in the event of dismissal associated with the termination of the employer's activities. The only difference is that seasonal employees should receive a notice of termination of a fixed-term contract due to the liquidation of the employer not in three days, as with other termination options, but in seven days (Article 296 of the Labor Code of the Russian Federation).

When deciding to conclude a fixed-term employment contract with an employee, the employer must remember that this type of contract often becomes the subject of litigation. In this case, the validity and legality of the temporary nature of the contract will have to be proved by the employer. In order not to receive penalties, it is better to choose an urgent option of an employment contract only in relation to persons listed in the Labor Code, and remember about the conditions provided by law for temporary workers.

The company can hire employees either permanently or for a strictly limited period. In the latter case, a temporary employment contract is signed.

What does a fixed-term employment contract mean?

When hiring an employee, depending on the circumstances of the specific hiring and the specifics of the organization's work, a fixed-term employment contract is signed either taking into account the work assigned (part 1 of article 59 of the Labor Code of the Russian Federation), or by mutual agreement of the head and employee (part 2 of article 59 of the Labor Code RF). This is the main difference between a fixed-term employment contract and a contract for an indefinite period.

Grounds for the conclusion of a fixed-term employment contract

Today these are the following grounds:

  • replacement of a temporarily absent employee;
  • temporary work (no more than two months);
  • seasonal workers;
  • employees sent to work abroad;
  • employees hired for non-standard work for the organization (installation, reconstruction) or in case of temporary expansion of production;
  • the entire staff of employees hired by the company, created for a limited period of time or to perform specific temporary work (project work), incl. if the moment of completion of work cannot be determined in advance;
  • trainees and trainees;
  • filling an elective position;
  • workers assigned by the employment service for temporary (public) work;
  • alternative civil servants.

If there are no circumstances of a temporary nature of the work, the employee and his manager can agree to sign a fixed-term employment contract. This, however, can be done in strictly defined cases (part 2 of article 59 of the Labor Code of the Russian Federation):

  • hiring to a small business entity (the number of employees is less than 35, and in retail and consumer services - less than 20);
  • hiring retirees or employees who are allowed only temporary work for health reasons;
  • hiring an employee to the Far North, if it is planned to move him;
  • hiring employees by competition;
  • hiring creative workers (media, circuses, theaters, etc.);
  • hiring managers, their deputies and chief accountants of companies;
  • hiring full-time students;
  • hiring seafarers;
  • hiring part-time workers;
  • hiring employees to prevent emergencies, accidents, epidemics and other similar events, as well as to eliminate the consequences of these events, if they have already occurred.

How to issue a fixed-term employment contract?

First of all, at the stage of drawing up the contract, it is necessary to fix in it its term and justification of the urgency, otherwise the contract will de jure be considered indefinite (part 3 of article 58 of the Labor Code of the Russian Federation). In this case, it will be possible to terminate it only on the general grounds of the Labor Code of the Russian Federation for unlimited contracts (Chapter 13 of the Labor Code of the Russian Federation).

The rest of the conditions of a fixed-term employment contract are no different from the conditions in an open-ended contract

Fixed-term employment contract and sick leave

Labor legislation establishes a rule according to which an employee cannot be dismissed at the initiative of the employer during illness (Article 81 of the Labor Code of the Russian Federation). It should be borne in mind that dismissal due to the expiration of the temporary contract is not dismissal at the initiative of the employer.

Therefore, it is possible to dismiss an employee under a fixed-term employment contract, if the term of the latter has expired, even during his illness. The company is still obliged to pay for sick leave with a fixed-term employment contract (Article 183 of the Labor Code of the Russian Federation), however, if the contract with the employee was concluded for a period of less than six months, no more than 75 days of illness are paid, in all other cases - the entire period of temporary disability of the employee, with whom a fixed-term employment contract was concluded (see Art. 6 of the Federal Law No. 255-ФЗ).

Fixed-term employment contract and work book

The work book when hiring and dismissing under a fixed-term employment contract is filled in the same way as in the case of an open-ended contract.

There is only one important feature of making an entry upon admission - the term of the employment contract is not recorded in the work book (

 

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