Fictitious employment contract. How to challenge an employment contract - examples from practice. Download sample application

Specialists of the Irkutsk regional branch of the Social Insurance Fund pay special attention the correctness of spending by employers for compulsory social insurance of employees through field, office inspections of employers. In 2012, while allocating the necessary funds for the payment of insurance coverage for compulsory social insurance, specialists of the regional department carried out 24,898 desk audits, based on the results of which, in 24,861 cases, a decision was made to allocate funds in the amount of 1.7 billion rubles. Refused to 35 policyholders in the amount of 4.5 million rubles. 77 decisions were made on rejection of expenses for the amount of 4.6 million rubles. In addition, in 2012, 1,393 field checks the correctness of the costs of the insured for the payment of insurance coverage for compulsory social insurance, of which 408 violations were revealed.

Fictitious employment

Expenses that were not accepted for offset amounted to more than 8 million rubles, 100% recovered to the Fund's budget.

In the period 2011-2012, the regional office revealed 6 cases of fictitious employment and overestimation of the average earnings, 16 cases of fictitious employment before the onset of an insured event and 24 cases of overestimation of average earnings for calculating benefits before the onset of an insured event. Good practice: in all of these cases, including those appealed in court, the insured did not receive funds.

To the list "

My own lawyer

Reduction of posts.

Non-existent workers

Attention

Fictitious staff reduction

the possibility of receiving a larger amount of money than with official employment for performing the same amount of work. A simple example: an employer can spend on installation software 1 thousand rubles. Hiring a programmer unofficially, he will pay him this $ 1,000.
rubles.

Police clearance certificate.
According to Article 64 of the Labor Code of the Russian Federation, an employer should not unreasonably refuse a citizen in employment, even if he does not have local registration. But in practice, organizations rarely hire workers without local registration. In case of any violation of rights, employees have the right to defend their interests in court. Official registration allows you to get a legitimate job, for which the employer does not have to pay a fine.
Is it worth using fictitious employment

After all, inspections are carried out by regulatory authorities on a regular basis.

State institution - Irkutsk regional branch of the Social Insurance Fund Russian Federationnews

Criminal liability for fictitious employment

The topic of video conferencing is very relevant. Recently, there has been an increase in cases of employers or employers using various machinations in order to receive the maximum amount of maternity benefits from the Social Insurance Fund. There are a great many artificial schemes: hiring an employee immediately before the onset of an insured event (maternity leave) in the absence of appropriate education and skills; the establishment of a salary for an employee before maternity leave that is significantly higher than the salary of other employees; hiring a relative of the head shortly before she leaves for maternity leave in the absence of work experience in the relevant field; approval of a new position for the purpose of hiring a pregnant employee, etc.

Specialists of the Irkutsk regional branch of the Social Insurance Fund pay special attention to the correctness of employers' spending on compulsory social insurance of employees through field, desk inspections of employers. In 2012, while allocating the necessary funds for the payment of insurance coverage for compulsory social insurance, specialists of the regional department carried out 24,898 desk audits, based on the results of which, in 24,861 cases, a decision was made to allocate funds in the amount of 1.7 billion rubles. Refused to 35 policyholders in the amount of 4.5 million rubles. 77 decisions were made on rejection of expenses for the amount of 4.6 million rubles. In addition, in 2012, 1,393 on-site inspections of the correctness of the insurers' expenses for the payment of insurance coverage for compulsory social insurance were carried out, of which 408 violations were revealed. Expenses that were not accepted for offset amounted to more than 8 million rubles, 100% recovered to the Fund's budget.

How to get a job and not walk (for seniority)?

Good practice: in all of these cases, including those appealed in court, the insured did not receive funds.

It should be noted that if fraud is revealed, the employer will not only not receive funds from the Fund's budget, but also risk being prosecuted. At the end of 2012, the Criminal Code was supplemented with a number of articles, in particular Art. 159.2 “Fraud in the receipt of payments, within the framework of which criminal liability is provided for receiving benefits, compensations and other social payments by providing knowingly false and (or) false information, as well as by omission of facts entailing the termination of these payments; and also Art. 159.5 "Fraud in the field of insurance", which provides for criminal liability for theft of someone else's property by deception in relation to the occurrence of an insured event, as well as in relation to the amount of insurance indemnity to be paid.

To the list "

It turns out that the employee is officially employed with the registration of all the necessary documents, the employer regularly deducts taxes from his wages, and the citizen himself does not appear at the workplace. This option, based on the provisions of the Labor Code of the Russian Federation, is also illegal. Fictitious employment can be beneficial to the following citizens:

women with a small child under 1.5 years old to receive a higher material allowance;
citizens wishing to illegally obtain work experience;
hired senior employees who have the right to hire employees to implement a fraudulent scheme to receive money by embezzling the earnings of fictitiously hired citizens.

For fictitious employment, punishment is provided in the form of payment of illegally received money and a fine (Art. 159.2 of the Criminal Code of the Russian Federation).

My own lawyer

The Labor Code of the Russian Federation in matters of staff reduction and, in particular, indicates the employer's obligation to prove the fact of a real reduction in the number of staff or positions.It should be noted that before considering the issue of fictitious reduction of staff or positions, it should be understood that this procedure can also be divided into two different measures :

Downsizing. In this case, changes are made to the official schedule of the enterprise in relation to the number of employees employed by the existing and prescribed rules. internal regulations or other local regulations positions, but the list of positions itself remains unchanged.
Reduction of posts.

Non-existent workers

In case of criminal liability, it is possible to deprive you of an activity for a long period. Usually when unofficial employment is found state bodies do not close the organization, but seek to pay taxes and compensations. The entrepreneur can suffer serious damage, so you should not take risks.

It is best to fill out the necessary documentation right away. Responsibility of LLC The fine for an unregistered employee is also paid by LLC. According to Art. 5.27 of the Administrative Code of the Russian Federation, a large amount is assigned. It is discharged to the manager or responsible person who is engaged in the personnel field. For repeated violations that have caused great damage to the state, large fines are called.

Sometimes the release of responsible persons from work is provided. There is a possibility of criminal liability. Then the punishment will be correctional labor or imprisonment for up to 2 years.

Fictitious employment and responsibility for it

Hiring the same employee under a fixed-term employment contract, he will have to pay taxes from the allocated thousand, this, according to 2017 data, will amount to 43.2% (if the employer's organization is not included in the preferential list of taxpayers). It turns out that from a thousand rubles 432 rubles will go to taxes, which means that the employer will be able to pay the programmer instead of a thousand only 568 rubles. In this case, it is beneficial for an employee to do work without formalizing employment. What threatens the employer for unofficial employment of an employee The employer hiring a citizen without formalizing an employment or civil contract is fraught with serious troubles, including criminal liability.

Consequences of informal employment for the employer:

bringing to administrative responsibility (Art.

What is banging for the fictitious registration of a non-working person?

Attention

It's no secret that in Russia the situation with the employment of the population does not look the best. The financial situation of many citizens leaves much to be desired. In order to increase income or to receive state support people agree to fictitious employment.

And even for unofficial work. What it is? What are the pros and cons of these forms of labor? Should I use them in real life? And is it necessary to be afraid of responsibility for such acts? The information written below will help us to answer all this. Legislation In Russia, anyone who has reached the age of 14 can officially go to work. This is called employment. By law, all work must be official.

Building a successful resume. Fictitious employment for seniority and experience.

Then it will be taken into account as seniority when calculating the pension. Moreover, such a decision does not violate labor laws.

What is the responsibility for fictitious employment?

In addition, within six months after the layoff, the employer is not recommended to publish vacancies on the availability of vacancies for the positions of laid-off workers and even simply hire such specialists by invitation or transfer.

It is necessary to carry out the reduction procedure strictly in accordance with the procedure prescribed by law. That is, to ensure timely notification of the employee himself, the employment center and trade union organization, pay the employee all funds and compensation due to him, including severance pay, and take into account the requirements of regulatory enactments in relation to specific categories employees. So, for example, pregnant women are generally not subject to layoffs.
Careful consideration should be given to all factors affecting the preferential retention of employees.

Fictitious staff reduction

if the employee has any financial obligations, for example, the payment of alimony, payments under a writ of execution, etc., he may not transfer these amounts from his unofficial salary;
possibility of obtaining additional earnings in free time from the main work;
the ability to earn money while on retirement without losing social benefits;
lack of full financial responsibility of the employee;
the possibility of receiving a larger amount of money than with official employment for performing the same amount of work.
A simple example: an employer can spend 1,000 rubles on installing software. Hiring a programmer unofficially, he will pay him this $ 1,000.
rubles.

What is the fine for an unregistered employee? legal practice

It is necessary for men 18-27 years old who can be called up for military service.

Certificates and diplomas confirming education.
Medical book. Required for employees in trade, education, medicine, catering.
Police clearance certificate.
According to Article 64 of the Labor Code of the Russian Federation, an employer should not unreasonably refuse a citizen in employment, even if he does not have local registration. But in practice, organizations rarely hire workers without local registration. In case of any violation of rights, employees have the right to defend their interests in court. Official registration allows you to get a legitimate job, for which the employer does not have to pay a fine. After all, inspections are carried out by regulatory authorities on a regular basis.

Fictitious reduction of staff and legal base - what is said in the Labor Code of the Russian Federation The current legislation quite strictly regulates issues related to the dismissal of workers to reduce. At the same time, given the broad possibilities of the employer in using this basis to terminate labor relations with employees, this procedure requires special control from the state and supervisory authorities. In particular, fictitious layoffs, if discovered, would definitely be considered a violation of applicable law and employee rights.

Therefore, first of all, in the event of a reduction, the parties to the relationship should familiarize themselves with the following regulations in force in the Russian territory:

Punishment for fictitious workers in an enterprise

In order to prevent the occurrence of such situations, it is necessary to take into account the following factors: 1) the corpus delicti under Art. Art. 159, 285 of the Criminal Code, no, if the labor duties of a false worker are fulfilled in full and this is confirmed by the testimony of witnesses, the injured party has no complaints, cash (employee's salary) is spent at the discretion of the manager in the interests of the institution. At the same time, funds cannot be converted into the property of the employed person; 2) the corpus delicti under Art. Art. 159, 285 of the Criminal Code, no, if the labor duties of the pseudo worker are not actually fulfilled, but the money (the employee's salary) is spent exclusively on the needs of the institution, which is caused by an urgent need.

Some people resort to illegal schemes such asfictitious employment. For what purpose is this being done and how can it turn out? Let's try to find out.

Women most often resort to such a procedure in order to receive not a social (minimum) allowance, but an increased allowance for caring for a child who is under 1.5 years old. There are two important points to keep in mind here.

Firstly, if you do not have very good connections, then fictitious employment without any active labor activity is impossible.

Because officially you will be listed as Pension, insurance and other contributions will be paid for you. That is, for an employer who agreed to such your employment, it is expensive.

Secondly, do not forget that the world is full of "kind" people who, having found out about your happiness, will not fail to do something wrong to you. They can turn with a slander in law enforcement agencies or higher levels of your organization.

As a result, a sudden internal or even worse prosecutor's check will reveal the fact of data manipulation. And it can end very badly for you and the employer.

All illegally received by you will have to be reimbursed, and even pay a fine. Moreover, a non-working woman is legally entitled to social benefit no one will pay you. That is, you will lose material content in 1.5 years.

Also, a fictitious employment scheme can be used to get a mark of work experience, which is often required by an employer.

Even having hired you, the employer, seeing you in action, will immediately understand how you worked earlier. Therefore, this is only suitable for those who really know how to do something, know and will not shame themselves in business.

Here you will be fired at best. At worst, the vindictive employer will write where it should be about your former employerwhich provided youfictitious employment ... And everything will start according to the previous scheme: complaints, checks, proceedings, monetary penalties.

If the scheme of fictitious employment is used for their own personal gain. For example, working in a state, municipal position, a person can enroll "dead souls" in his state.

That is, employees who will only be listed, and such an official will appropriate their salaries. Such illegal activities threaten with the onset of criminal liability for the service canopy.

That can end in real imprisonment. A similar incident was recorded in 2012 in the city of Serpukhov. There the head of the kindergarten, who arranged a profitable for herselffictitious employment , got off with 1 year probation (with three years probationary period). But not everyone can do thissty. And it could end up much worse.

Another reason for fictitious employment is the evasion of alimony payments. If you work on a sabbat and provide a certificate of your "real" salary to the judicial authorities, the court will appoint the amount of alimony based on the amount of salary indicated in the certificate.

For the draft deviators, it should be emphasized: the alimony case is transferred to the enforcement proceedings of the bailiffs. This service has the right to independently verify the fact of a citizen's work at the specified address.

In addition, the spouse of the defendant (alimony payer) has the right to appeal against the illegal actions of her ex-husband, even if there is already a valid court decision.

Do not forget thatfictitious employment - under any circumstances, an illegal act for which, depending on the accompanying circumstances, there is a threat of legal liability.

Such an employee will not be able to claim wages. The consequences for the organization depend on a number of factors. In this situation, both tax liability and criminal liability are possible. The latter can occur if it is established that a fictitious employee was used, for example, in a tax evasion scheme. .

Justification

The fictitious worker was unable to collect wages

The employee was hired on personal instructions general director for a leadership position. However, for more than 2 years the employee did not come to work, * as a result of which the employer suggested that he terminate employment contract by agreement of the parties. The employee signed the agreement, but later stated that during all these 2 years the employer had interfered with the performance of his duties in the company and therefore had to pay him the time of the forced absence. In court, the company managed to prove that the employer created all the conditions for this employee's work and that he arbitrarily refused to fulfill his job responsibilities.

Plaintiff: employee

Dispute subject:

collect wages for the time of forced absence;
recover compensation for moral damage

Result: the employee's demands were denied

Case details: decision of the Zamoskvoretsky District Court of 12.10.2012 in case No. 2-2863 / 12

Case story

The employee was hired as Director of the Department of State targeted programs and capital investments in April 2009. The position, like the department as a whole, was created at the request of the CEO, precisely for the purpose of employing an employee with whom the directors had friendly relations. In July 2009, due to the difficult financial situation company, the employer offered the employee to go on unpaid leave for 2.5 months. The employee agreed and wrote a corresponding statement. After the vacation ended, the employee did not appear at work and did not actually perform any labor duties for 2.5 years. In November 2011, the employee received a notification from the manager personnel service about the need to show up for work. At the head office, he met with an employee of the HR department, during which he was asked to conclude an agreement to terminate the employment contract. The employee agreed to the proposed conditions and signed the agreement. However, after several days the company received a notice that the employee went to court in connection with the violation of his labor rights. It followed from the employee's statement of claim that over the past 2.5 years, the employer deprived him of the opportunity to work, without providing him workplace... At the same time, the amount of the claims exceeded 4 million rubles. The employer was extremely surprised by such demands of the employee, especially since he had not made any claims earlier. The employer had evidence that the employee was absent after the end of the vacation without good reason. In the time sheet for this entire period, appropriate notes were made and acts were drawn up. Nevertheless, the employee believed that not providing him with a job and not providing him with a pass to the head building were sufficient reasons for not showing up for work, since the enterprise had a strict access regime, and issuing such a pass was the direct responsibility of the employer. However, according to the employer, the employee deliberately avoided fulfilling his job duties, since he did not appear at the office either before the forced vacation or after it.

The position of the plaintiff: the employer obstructed the performance of the labor function by not providing access to the workplace

In support of his position, the employee gave the following arguments. In April 2009, he was hired as the head of the department, and in June he was asked to write an application to go on unpaid leave. After this time, the employee expected to return to work, but found that the office in which he worked previously was closed. The employee turned to the head office for an explanation of the situation, but due to the lack of a pass, he could not get an appointment with the management. Further, the employee repeatedly in telephone and personal conversations with the CEO discussed the issue of his return to work, but the manager asked to postpone this moment, since the company did not have the opportunity to pay him wages. For the entire period - from the date of the end of the unpaid leave until the day of the employee's dismissal by agreement of the parties, no orders or orders were issued in relation to him.

From the employee's statement of claim: “According to the terms of the employment contract, the employer undertakes to create working conditions that ensure the timely and high-quality performance by the employee of their job duties, as well as create conditions for safe and efficient work, equip the workplace in accordance with labor protection and safety regulations. These measures were not taken, which caused forced absenteeism through the fault of the employer. The agreement to terminate the employment contract was concluded under pressure from the employer. "

The text of the employment contract did not contain an indication of the exact address of the location of the employee's workplace, based on which he concluded that after the expiration of the vacation time, he should perform his duties in the same place.

The employee noted that the company has a strict access regime, and visitors are not allowed to enter the head office without a pass. Having made an unsuccessful attempt to meet with management in the office building, the employee continued to communicate with the CEO through telephone calls.

Having received a notice of the need to come to the office in November 2011, the employee submitted an application to the company office for a proper job. At the second meeting, the employee, in his opinion, was forced to conclude an agreement on the termination of the employment contract, since in the event of his refusal to terminate such termination, the employer threatened to be fired “under the article”. However, the employee did not dispute the legality of the dismissal. During court session he insisted only on compensation for wages during the forced absence.

Defendant's position: the employee did not work in the company for almost a single day

The employer did not admit the claim, arguing his position as follows. First of all, the text of the employment contract did not contain the exact address of the workplace, it only indicated that the employee was hired precisely in parent company, whose only office is located in the main building. The building, mentioned by the employee as the location of his office, could not be such, since only the subsidiary structure of the company was located there. Thus, the employee had to take up the duties of legal address the company indicated in the text of the employment contract as the address of the organization. Moreover, the employee was notified of the presence of his own equipped office next to the office of the general director.

During the trial, company representatives, as evidence of the employee's dishonesty, presented witness statements that confirmed that the employee was hired on the personal initiative of the CEO and that it was specially created for him new position and department. In fact, his work in the company was of a formal nature, directly labor functions the position of this employee did not imply. Regarding his absenteeism, the personnel department received a personal order from the CEO not to take any action. The company representatives emphasized that on the eve of the court session, the workers invited as witnesses received telephone messages with threats from the plaintiff, which is another evidence of his dishonesty.

The employer's representatives insisted that no obstacles were created to the employee's access to the workplace, moreover, the employee did not need a pass at all to enter the building, which was confirmed by the fact that never during the entire period of work, including in the building of a closed office , no applications for a pass from the employee were received.

The employer also noted that the employee did not provide any evidence of the validity of the reasons for his absence from work, which, according to the company, should release the employer from the obligation to pay wages. The fact that the employee was no longer charged wages was not disputed by the employer.

The company representatives insisted that the employee missed the deadline for going to court, since the last time his salary was charged in September. Upon failure to receive subsequent payments, the employee could conclude that the employer had violated his labor rights and went to court. However, he did not take such steps.

In addition, the employer had serious reasons to believe that the employee was employed by another company during his two-year absence. Therefore, a petition was filed to obtain information about his income for the previous 2 years. Despite the fact that the tax authority provided the specified information, the court was unable to attach these documents to the case file, since, in addition to information on income, this certificate contained other information entered by the tax service erroneously, which was not subject to disclosure. Nevertheless, the court took into account the fact that for 2 years the employee did indeed have a source of income. *

The position of the court: the employee was absent from work for 2 years without good reason

After listening to the positions of the parties and considering the evidence presented, the district court made a decision to refuse the employee in the stated requirements. First of all, because the employee failed to prove the validity of the reasons for his absence from the workplace for more than 2 years. He also failed to provide sufficient evidence that he was not provided with access to the workplace and that the employer's actions in some way prevented him from performing his work duties.

From the court decision: “The plaintiff has not presented evidence proving the facts of obstruction by the defendant of the plaintiff's arrival and his presence at the workplace and the performance of his labor duties. There is no evidence in the case testifying to the plaintiff's appeal to the defendant to enable him to fulfill the labor contract concluded with him. "

At the same time, the employer submitted required documents, indicating the absence of an employee at the workplace without good reason: extracts from timesheets, certificates of the employee's absence at the workplace.

The employee's argument that his workplace was located at the location of the closed office, the court considered unfounded, since in the text of the employment contract Moscow was listed as the place of work, without specifying a specific address. In addition, the employer insisted that the employee had come to the head office even before going on unpaid leave, since only the subsidiary of the company was located in the office at a different address, and there was no provision for an office for this employee.

In addition, the employer's representatives were able to prove that they had indeed made repeated attempts to find the employee. Acts of telephone messages were presented as evidence, registered letters, telegrams.

The court considered the testimonies of the witnesses to be credible evidence confirming the employee's bad faith. It was found that the employee was hired under the patronage of the manager, did not fulfill his labor duties and went to court to collect wages, having abused his right.

Regarding the employer's petition for the employee to miss the deadline for going to court to restore the violated right, the court made a decision to satisfy this petition.

From the court decision: “It is obvious that the timeliness of going to court depends on the will of the employee. In this case, the plaintiff, having actual opportunities for such an appeal to the court without missing the deadline, without any good reason, substantially violated the established time limit (3 months). "

Proceeding from this, the court refused to satisfy the claims for the recovery of wages, including on the basis of the employee missing the statute of limitations.

The appellate court agreed with the findings of the district court and upheld the decision.

02.01.2019

We offer a sample statement of claim on establishing the fact of labor relations. The fact of an employment relationship will have to be established if labor Relations between employee and employer are not documented. That is, there is no employment contract, no job order, no entries in the work book. In fact, the employee cannot confirm in any way that he worked in this organization or for an individual entrepreneur.

Statement of claim on the establishment of the fact of labor relations is submitted to the court at the location of the employer - the defendant in the claim. If the employee worked in a branch or representative office of the defendant, then it is possible to go to court at the place of actual work of the plaintiff. Requirements for the establishment of labor relations relate to the jurisdiction of the district (city) courts. An employee, when applying to court in a labor dispute, is released from everyone.

Since the collection of the necessary evidence when filing a claim lies entirely with the plaintiff, it is advisable to collect at least some documents confirming the fact of labor relations even before filing a claim. If you are unable to collect evidence informally, you can try filing.

Before filing a claim with the court, the employee can apply with. This way of protecting the right in this situation is very justified, the labor inspector will be able to check the employer's documents and thereby help in collecting the necessary evidence.

When filing a claim to establish the fact of labor relations, claims are usually made to collect wages or reinstatement at work, for these cases we recommend that you familiarize yourself with other samples of claims for labor disputes presented on the website.

IN _____________________________
(name of the court)
Plaintiff: _________________________
(Full name, address)
Defendant: _______________________
(Full name of the entrepreneur
or the name of the company,
address)
: _______________________
(amount of earnings from claims)

Statement of Claim on Establishing the Fact of Labor Relations

I worked at the enterprise _________ from "___" _________ ____ in the position of _________. Labor relations during employment were not formalized, an employment contract was not issued to me. _________ (indicate the circumstances in which the plaintiff began to perform his work duties, what were the agreements with the employer).

When I was hired, they promised to pay me a salary in the amount of _______ rubles, in fact, they paid _______ rubles for the entire time. (indicate actual payments by amounts and dates), less than _______ rubles.

The employment relationship with the employer is confirmed by _________ (indicate how the employment relationship is confirmed).

In accordance with article 16 Labor Code RF labor relations between an employee and an employer also arise on the basis of the employee's actual admission to work with the knowledge or on behalf of the employer or his representative in the case when the employment contract was not properly executed.

“___” _________ ____, I was fired, but I was not familiarized with the order of dismissal, I was not given a work book upon dismissal, and I was not calculated for the hours worked.

I consider the employer's actions illegal, since _________ (indicate reasons).

Unlawful actions of the employer caused me moral harm, which was expressed in _________ (indicate specific experiences, for example: stress, depression, insomnia, etc.). I estimate the moral harm caused to me at _______ rubles.

Based on the foregoing, guided by Articles 131-132 of the Civil Procedure Code of the Russian Federation,

I beg:

Establish the fact of labor relations between _________ (name of the plaintiff) and _________ (name of the defendant) in the period from _____ to _____ (indicate the period of employment).
To oblige _________ (name of the defendant) to enter in the workbook records of admission and dismissal from work on on their own from _________ (indicate the date of dismissal).
Collect from _________ (name of the defendant) unreceived wages in the amount of _______ rubles.
To recover from _________ (name of the defendant) in my favor in compensation for moral damage _______ rubles.

List of documents attached to the application (copies according to the number of persons participating in the case):

Copy of the statement of claim
Calculation of earnings
Documents confirming the fact of labor relations
Documents confirming the amount of established earnings

Date of filing of the application "___" _________ ____, Signature of the plaintiff _______

Download a sample application:

30 comments on “ Statement of Claim on Establishing the Fact of Labor Relations”

Hello.
What should the employer who is officially listed as an employer do?

If all responsibility has been assigned to your organization, then there can be no talk of any agreement. Then return the employee to your organization. offer compensation and dismiss by agreement of the parties. In short, pay off. Since in your actions, although you write that officials have no material interest, but in fact, if it comes to the prosecutor's office, their corruption component with all the ensuing consequences will be checked

What can be the consequences for a legal entity and officials involved (manager, head of personnel department).

Labor Code of the Russian Federation, Article 362. Responsibility for violation of labor laws and other regulatory legal acts containing norms labor law

Heads and other officials of organizations, as well as employers - individuals guilty of violating labor legislation and other regulatory legal acts containing labor law norms, are liable in the cases and in the procedure established by this Code and other federal laws.

Employer's responsibility for violation of labor legislation
For violation of labor laws, most of which are associated with a violation of the conduct hR administration, the employer may incur the following types of liability:
administrative;
material;
civil law;
criminal.
The sizes of liability are quite different and depend on what violations of labor legislation have been identified. Large changes in the amount of administrative responsibility have occurred since 2015.
It should be borne in mind that the payment of the fine does not relieve the responsibility for the elimination of the identified violations. Therefore, violations for past periods require the restoration of personnel records.

In your case, there will be administrative responsibility
Administrative responsibility
Bringing to this responsibility is the most common case.
Most often, liability arises under article 5.27 of the Code of Administrative Offenses of the Russian Federation "Violation of labor legislation and other regulatory legal acts containing labor law", which provides for the imposition of the following fines for the relevant offenses:
1.for the factual admission to work of an employee without recognizing the relationship with him as labor, that is, without concluding an employment contract with him, entails the imposition of a fine:
for citizens in the amount of 3,000 to 5,000 rubles;
for officials - from 10 thousand to 20 thousand rubles.
2.for evading or improper execution of an employment contract or the conclusion of a civil law contract that actually regulates labor relations between an employee and an employer, shall be subject to a fine:
for officials in the amount of 10 thousand to 20 thousand rubles;
on persons carrying out entrepreneurial activity without forming a legal entity - from 5 thousand to 10 thousand rubles;
for legal entities - from 50 thousand to 100 thousand rubles.
3.For violation of labor legislation and other normative legal acts containing labor law norms not specified in paragraphs 1 and 2 and not provided for in Article 5.21.1 of the Administrative Code of the Russian Federation, shall entail a warning or a fine
for officials in the amount of 1,000 to 5,000 rubles;
for persons engaged in entrepreneurial activities without forming a legal entity - from 1000 to 5000 rubles;
for legal entities - from 30 thousand to 50 thousand rubles.
In addition, in accordance with the same Article 5.27 of the Administrative Offenses Code of the Russian Federation, the commission of an administrative offense by a person previously subjected to administrative punishment for a similar administrative offense (that is, repeated similar violations) entails the following additional administrative liability:
1.if an offense was previously committed in accordance with the above paragraphs 1 and 2, then an administrative fine is imposed:
for citizens in the amount of 5,000 rubles;
for persons engaged in entrepreneurial activity without forming a legal entity - from 30 thousand to 40 thousand rubles;
for legal entities - from 100 thousand to 200 thousand rubles.
In this case, the official responsible for such a repeated violation will be disqualified for a period of 1 to 3 years.
2. if an offense was previously committed in accordance with the above paragraph 3, then an administrative fine is imposed:
for officials in the amount of 10 thousand to 20 thousand rubles or disqualification for a period of 1 to 3 years;
for persons engaged in entrepreneurial activity without forming a legal entity - from 10 thousand to 20 thousand rubles;
for legal entities - from 50 thousand to 70 thousand rubles.
In accordance with article 5.30 of the Code of Administrative Offenses of the Russian Federation "Unjustified refusal to conclude a collective agreement, agreement", an unjustified refusal to conclude such documents with employees entails a warning or the imposition of an administrative fine in the amount of 3,000 to 5,000 rubles.
Article 18.15 of the Code of Administrative Offenses of the Russian Federation "Illegal attraction of a foreign citizen or stateless person to work in the Russian Federation" provides for:
1.the involvement of such persons in labor activity in the Russian Federation in the absence of a work permit or a patent, if such documents are required by law, or their involvement in labor activities outside the boundaries of the constituent entity of the Russian Federation, on the territory of which a work permit, patent or temporary residence is issued shall entail the imposition of an administrative fine:
for citizens in the amount of 2,000 to 5,000 rubles;

for legal entities - from 250 thousand to 800 thousand rubles or administrative suspension of activities for up to 90 days;
2. attraction to labor activity in the Russian Federation of persons specified in clause 1 of Article 18.15 of the Administrative Code, without obtaining, in the prescribed manner, permission to attract and use foreign workers, if required by law, entails the imposition of a fine:
for citizens in the amount of 2,000 to 5,000 rubles;
for officials - from 25 thousand to 50 thousand rubles;
for legal entities - from 250 thousand to 800 thousand rubles or administrative suspension of activities for up to 90 days.
3.failure to notify or violation of the established procedure and (or) the form of notification of the territorial body of the FMS about the conclusion or termination (termination) of an employment contract or a civil law contract for the performance of work (provision of services) with foreign citizen within a period not exceeding 3 working days from the date of conclusion, termination (termination) of the contract, if such notification is required in accordance with the law, entails the imposition of a fine:
for citizens in the amount of 2,000 to 5,000 thousand rubles;
for officials - from 35 thousand to 50 thousand rubles;
for legal entities - from 400 thousand to 800 thousand rubles or administrative suspension of activities for up to 90 days.
4.the violations provided for by the above paragraphs 1-3, committed in the federal city of Moscow or St. Petersburg, or in the Moscow or Leningrad region, shall entail the imposition of an administrative fine:
for citizens in the amount of 5,000 to 7,000 rubles;
for officials - from 35 thousand to 70 thousand rubles;
for legal entities - from 400 thousand to 1 million rubles or administrative suspension of activities for a period of 14 to 90 days.
5.failure to notify or violation of the established procedure and (or) the form of notification by the employer or customer of work (services) attracting highly qualified specialists, the FMS or its authorized territorial body on the fulfillment of obligations to pay wages (remuneration) to highly qualified specialists, if such notification or provision of such information is required in accordance with the law, entails the imposition of an administrative fine:
for officials in the amount of 35 thousand to 70 thousand rubles;
for legal entities - from 400 thousand to 1 million rubles.
In accordance with article 13.11 of the Code of Administrative Offenses of the Russian Federation "Violation of the procedure for collecting, storing, using or disseminating information about citizens (personal data)" established by law, violation of this order entails a warning or the imposition of an administrative fine:
for citizens in the amount of 300 to 500 rubles;
for officials - from 500 to 1000 rubles;
for legal entities - from 5,000 thousand to 10,000 rubles.
We have given the articles for which administrative responsibility most often arises. However, this list is not limited to these articles only. In addition, bills to revise and introduce new types of administrative liability for violation of labor legislation are often submitted for consideration.

Material liability
The employer's main financial liability is for late payment or non-payment of wages. Article 236 of the Labor Code of the Russian Federation establishes that in case of violation of the established deadline for payment of wages, vacation pay, dismissal payments and other payments due to the employee, the employer is obliged to pay the delayed amounts of payment with interest (monetary compensation) in the amount of not less than 1/300 of the current refinancing rate The Central Bank of the Russian Federation from amounts unpaid on time for each day of delay starting from the next day after the due date of payment to the day of actual settlement inclusive. The amount paid to the employee monetary compensation can be upgraded collective agreement or an employment contract.
Article 234 of the Labor Code of the Russian Federation provides for the obligation of the employer to reimburse the employee for the earnings not received by him in all cases of illegal deprivation of his opportunity to work. Such cases, in particular, include:
illegal suspension of an employee from work, his dismissal or transfer to another job;
the employer's refusal to comply or untimely execution of the decision of the labor dispute settlement body or the state legal labor inspector to reinstate the employee in his previous job;
delay by the employer in issuing a work book to the employee, entering in the work book an incorrect or non-compliant formulation of the reason for the employee's dismissal.

Civil liability
In accordance with article 56 of the Civil Code of the Russian Federation legal entities are responsible for their obligations with all property belonging to them.
Article 151 of the Civil Code of the Russian Federation provides that if a citizen is inflicted with moral harm (physical or mental suffering) by actions that violate his personal non-property rights or encroach on other intangible benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose a monetary obligation on the offender. compensation for the specified harm.
Thus, the employer, attracting and organizing labor activity employees must not violate their rights provided for by the Constitution of the Russian Federation and other regulations.

Criminal liability
This responsibility can also arise from employers.
In accordance with article 145 of the Criminal Code of the Russian Federation, an unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under the age of three may result in a fine of up to 200 thousand rubles or in the amount of the convicted person's salary or other income. period up to 18 months or compulsory work for a period of 120 to 180 hours.
Article 145.1 of the Criminal Code of the Russian Federation provides for the following liability for non-payment of wages, pensions, scholarships, allowances and other payments:
1.partial non-payment of these payments for more than 3 months, committed out of selfish or other personal interest by the head of the organization, the employer - natural person, the head of a branch, representative office or other separate structural unit organizations:
shall be punishable by a fine in the amount of up to 120 thousand rubles or in the amount of the wage or salary or other income of the convicted person for a period of up to 1 year, or by deprivation of the right to hold certain positions or engage in certain activities for up to 1 year, or imprisonment for up to 1 year.
2.complete non-payment of these payments for more than 2 months or payment of wages for more than 2 months in an amount below the established minimum wage, committed out of selfish or other personal interest by the head of the organization, the employer - an individual, the head of the branch, representative office or other separate structural unit of the organization :
shall be punishable by a fine in the amount of 100 thousand to 500 thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to 3 years, or imprisonment for a term of up to 3 years, with the deprivation of the right to hold certain positions or engage in certain activities for a term of up to 3 years or without such.
3.the acts provided for in paragraphs 1 and 2 of the article in question, if they entailed grave consequences:
shall be punished with a fine in the amount of 200 thousand to 500 thousand rubles or in the amount of the salary or other income of the convicted person for a period of 1 to 3 years, or imprisonment for a term of 2 to 5 years, with deprivation of the right to hold certain positions or engage in certain activities for a term under 5 years old or without it. Source kadri.center 21 vek.ru

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