Every year, Rostrud draws up a plan that determines the employers who will be tested next year. This plan is coordinated with the prosecutor's office and is freely available. In order to check whether your organization is included in the inspection plan, you need to visit the website of the labor inspectorate http://git78.rostrud.ru/plan/ or the website of the prosecutor's office http://procspb.ru/plan-proverok. The information posted on these sites, among other things, will indicate the month of the audit, the grounds for its conduct, the type of audit (V - field or D - documentary), as well as the name of the state control (supervision) body with which this audit will be carried out jointly . The approved plan is not adjusted during the year.
It will be useful to look into this plan before the vacation schedule is approved for next year so that in the month of verification indicated in the schedule key employees were not on vacation. And if you have already approved the schedule, then, if necessary, it will have to be adjusted. An extract from the inspection plan for 2016 is shown in Table 1.
In addition, if in the inspection plan you see an unauthorized reason for conducting it (for example, 3 years have not passed from the date state registration legal entity), then you should write a letter about this to the state labor inspectorate, attach copies of supporting documents, and then the check will not take place. As practice shows, about 10% of companies included in the inspection plan end up in it without legal grounds.
Table 1
Plan for scheduled inspections of legal entities and individual entrepreneurs for 2016 (extract)
The nature, types, grounds, timing and objectives of the inspections are given in Table 2.
table 2
GIT checks: types, grounds, timing
|
Nature of checks |
||
|
Planned |
unscheduled |
|
|
Subject of verification |
|
|
|
Grounds for holding |
Conducted after three years from the date of: 1) state registration of a legal entity; 2) completion of the last scheduled inspection legal entity; 3) commencement of entrepreneurial activities by a legal entity. |
1) Expiration of the deadline for the organization to fulfill a previously issued order to eliminate violations; 2) receipt by the labor inspectorate of an appeal and a statement about the facts of violation by employers of the requirements labor law and other regulatory legal acts, including labor protection requirements, which entailed the emergence of a threat of harm to the life and health of workers; If the federal labor inspectorate received: a) the employee’s appeal or statement about the violation by the employer of labor rights; b) an employee's request to check the conditions and labor protection at his workplace (Article 219 of the Labor Code of the Russian Federation); Issuance by the head of the labor inspectorate of an order (instruction) on instructions from the President of the Russian Federation, the Government of the Russian Federation, or on the basis of the prosecutor's request to conduct such an inspection as part of supervision over the implementation of laws on materials and appeals received by the prosecutor's office. |
|
notice period |
Not later than 3 business days before its start by any available means. |
Not later than 24 hours before its start by any available means. In the event that notification of an inspection may harm its effectiveness and make it possible to hide the fact of a violation, notification of the employer about the upcoming inspection is not allowed. |
|
The notification received from the GIT should be registered in the register for incoming correspondence in order to fix the notification period. |
||
|
Dates |
The general rule is that the period for conducting an audit should not exceed 20 working days. For small businesses, the period for a scheduled inspection is:
When conducting an unscheduled on-site inspection, as well as a documentary inspection of small businesses, the generally established rule is applied - 20 working days. If necessary, the labor inspectorate may extend the terms of the inspection, but not more than 20 working days, and in relation to small enterprises and micro-enterprises - not more than 15 hours. If the Labor Inspectorate has made a decision to extend the inspection period, then it must be brought to the attention of the employer at least 3 working days before the end of the main inspection period. For a legal entity that operates in the territories of several constituent entities of the Russian Federation at the same time, the inspection periods are set separately for each branch, separate division, representative office, but the total period may not exceed sixty working days. Extension of the period of unscheduled and documentary inspections is not allowed. |
|
|
Types of checks |
||
|
visiting |
Documentary |
|
|
Location |
On the territory of the employer. |
On the territory of the controlling authority. |
|
Pros and cons of types of checks |
pros- no need to copy, certify, staple and send a large number of documents for verification. Minuses- inspectors can request any document. Also, inspectors can check the premises occupied by the company, ask questions to the staff. |
pros- documents for verification are requested in advance, it is possible to prepare them. If the supervisory authority does not have enough submitted documents to conduct a full inspection, then a request for additional information may be sent to the employer. The employer is obliged to provide the documents or other information specified in the request within ten working days. Minuses- with a large workflow, you will have to prepare a large number of documents, draw up inventories and transfer documents according to the act. |
The Russian government has submitted bill No. 983383-6 to the State Duma, which proposes to establish special penalties for late payments wages, to increase the percentages provided for in Article 236 of the Labor Code, to increase the period for employees to apply to the court, to allow inspectors of the State Inspectorate to conduct unscheduled inspections without the consent of the prosecutor's office.
The project assumes that if late payment wages or setting wages below minimum wage GIT inspectors will receive the right to conduct unscheduled inspection employer. Now, such an audit requires the presence of complaints and the consent of the prosecutor's office.
The author of the bill is the Government of Russia, so the likelihood that the State Duma will consider and adopt this bill in the near future is very high. Thus, in the near future, the number of unscheduled inspections may increase significantly.
According to the information posted on the website of the labor inspectorate for St. Petersburg, 7153 inspections were carried out in 2015, of which only 1170 were field inspections, the remaining 5983 were documentary (see Diagram 1).
Diagram 1
According to the inspections carried out in 2015, it can be concluded that in 78% of cases of inspections of the State Inspectorate, the grounds for conducting were the appeals of citizens, and only 16% were scheduled inspections (see Diagram 2).
Diagram 2
According to the weekly reports posted on the website of the labor inspectorate for St. Petersburg for 2016, the following conclusions can be drawn:
1) in 85 cases out of 100 inspections end with the detection of offenses;
2) of the identified violations, more than half relate to labor protection at the enterprise;
3) the average amount of an administrative fine is 50,000 rubles.
The rights of the employer during the on-site inspection
At the request of the employer, inspectors are required to present service certificates.
Before the start of the inspection, the head of the organization (representative) must receive against signature a copy of the order (order) of the head of the GIT, it must be provided by the persons conducting the inspection.
The employer has the right to request from officials all information about the body that sent them for the inspection, as well as about the experts and expert organizations participating in it, Part 3 of Art. fourteen .
The head of the audited organization or his authorized person has the right to be present during the audit, as well as to give appropriate explanations of paragraph 1 of Art. 21, par. 2 p. 8 and the inspectors have no right to interfere with this.
The employer has the right to familiarize himself with all administrative regulations for control measures and the procedure for their implementation at those facilities that the legal entity uses in the conduct of its activities.
If the head of the organization (authorized representative) is absent during the inspection, an on-site inspection (scheduled, unscheduled) cannot be carried out. An exception is cases when an inspection is carried out on such grounds as: causing harm to life, health of citizens, harm to animals, plants, environment, objects of cultural heritage.
Upon completion of the inspection, the inspector must draw up an act in which the head (authorized person) puts his signature, thereby confirming that he is familiar with the results of the measures taken, Part 1 of Art. 16, par. 1 p. 61.
If the employer does not agree with the conclusions or facts set out in the act based on the results of the inspection (or in the order to eliminate the violations found), he may submit his objections to writing. Objections are submitted to the body that carried out control measures within 15 days from the date of receipt of the inspection report, Part 12, Article 16, par. 1 p. 63.
If the organization has documents that can confirm the validity of objections, then certified copies of such documents are attached to the act.
The employer has the right to appeal administratively or judicially against the actions (inaction) of officials of the body conducting the inspection, as a result of which his rights were violated, art. 254 Code of Civil Procedure of the Russian Federation.
If an administrative penalty was applied to the employer based on the results of the audit, it can also be challenged. To do this, you must submit documents, evidence or other arguments that can confirm your case.
The employer also has the right to file a claim with the court for the recovery of damages or lost profits that were caused by the actions (inaction) of officials of the state control body, and which were recognized as unlawful art. 22.
Responsibilities of the employer during the on-site inspection
The employer is obliged to provide documents for verification only if a documentary verification of Part 5 of Art. 12, par. 7 p. 8.
If the original documents are transferred, it is best to make such a transfer in writing. This can be done in the form of an acceptance certificate or an inventory.
When preparing documents, the employer must be guided by the procedure for transferring personal data of employees, which is provided for in Art. 88 of the Labor Code of the Russian Federation. Namely: the act must indicate that the transmitted data can only be used for control procedures.
The head of the audited organization is obliged to personally be present during the audit, or to ensure the presence of authorized representatives who are responsible for organizing and conducting activities to comply with all mandatory requirements in the field of labor and its protection, Part 1 of Art. 25, par. 9 p. 8.
In addition, the employer is obliged to ensure unimpeded access of inspectors to the territory of the organization, as well as to buildings, structures, and premises that are used by the organization in the implementation of its economic activity as well as equipment and vehicles.
Formulation of test results
Upon completion of the inspection, the inspector must draw up an act in two copies, the standard form of the act was approved by Order of the Ministry of Economic Development of Russia dated April 30, 2009 N 141.
One copy is handed to the head (authorized person) of the audited organization against signature. If the head refuses to put his signature, a corresponding entry is made on the act.
All legal entities and entrepreneurs must keep a log of inspections in accordance with Part 8 of Art. 16 and, in turn, the employer has the right to require the inspectors to make an entry in such a journal.
In case of detection of offenses based on the results of the audit, state labor inspectors simultaneously with the act have the right to present employers or their representatives with an order to eliminate violations of labor legislation, Part 3 of Art. 16, par. 4 p. 60.
The presented instructions are mandatory for the execution of Art. 357 of the Labor Code of the Russian Federation.
The term for appealing an order shall not exceed:
- 15 days, if the appeal is made to a higher manager or the Chief State Labor Inspector of the Russian Federation, clause 12 of Art. 16 .
- 10 days when appealing to the court h. 2 Article. 357 of the Labor Code of the Russian Federation.
The term for appeal begins to run from the date the employer receives the order attached to the inspection report.
If during the audit violations of labor legislation and the terms for bringing to responsibility, which are established by Art. 4.5 of the Code of Administrative Offenses of the Russian Federation, have not yet expired, the inspector, in addition to the act, draws up a protocol on administrative offense par. 6 item 60 of the Regulations, item 1 art. 28.5 of the Code of Administrative Offenses of the Russian Federation.
It may happen that during the inspection gross violations established requirements for the organization and conduct of inspections, then, according to Part 1 of Art. 20, its results cannot be evidence of a violation by the employer of the mandatory requirements and requirements provided for by municipal legal acts. The results of such inspections are subject to cancellation by a higher body of state control (supervision) or a court on the basis of an application from the employer.
Gross violations during inspections are (part 2 of article 20):
- lack of grounds for a scheduled inspection;
- non-compliance with the terms of notification of the inspection;
- non-compliance with the deadlines for scheduled inspections;
- involvement in the implementation of control measures not accredited in in due course legal entities and individual entrepreneurs, as well as citizens who have not passed certification;
- lack of grounds for conducting an unscheduled on-site inspection;
- disagreement with the prosecutor's office of an unscheduled on-site inspection in relation to a legal entity, an individual entrepreneur;
- violation of the terms and time of scheduled on-site inspections in relation to small businesses;
- conducting an inspection without an order or order of the head (deputy) of a state or municipal control;
- requesting documents that are not related to the subject of verification;
- exceeding the established deadlines for the inspection;
- failure to submit an inspection report;
- carrying out a scheduled inspection, not included in the annual plan;
- conducting an on-site inspection with the participation of experts and expert organizations, consisting in civil law and labor relations with legal entities and individual entrepreneurs in respect of which the audit is being carried out.
Depth of inspection
Article 357 of the Labor Code of the Russian Federation states that during inspections, state labor inspectors have the right to request from employers and receive from them free of charge documents, explanations, and information necessary to perform control functions. At the same time, the law does not limit controllers in relation to the period for coverage by an inspection. However, the employer is not required to submit documents whose retention period has expired.
All personnel documents must be kept in the organization in accordance with the established retention periods. There is a list that regulates the storage periods personnel documents, he was approved by order of the Ministry of Culture of Russia dated 08.25.2010 N 558. All organizations, regardless of the form of ownership, must comply with the deadlines specified in the List.
Pay attention to the Federal Law of 03/02/2016 N 43-ФЗ, according to which personnel documents created after 2003 must be stored for 50 years. For documents on personnel that relate to the passage of civil service (except for state civil service), this law provides for special rules.
What documents do inspectors request?
Until now, there is no legislatively fixed single list of documents that every organization must have available. An analysis of various legal acts shows that organizations should form separate local- regulations, keep certain journals, issue orders and other documents, as well as observe the terms of their storage. Each organization can draw up its own list of documents that should be in this particular company. In such a list, it is necessary to indicate not only the names of documents, but also the reasons for their maintenance, as well as document logs.
An approximate list of documents that the labor inspectorate may require during an inspection is given in table 3.
Table 3
|
No. p \ p |
Title of the document |
|
Employment contracts and supplementary agreements thereto |
|
|
Agreements on full individual liability and agreements on full collective (brigade) liability |
|
|
Student agreements |
|
|
Employment books |
|
|
The book of accounting for movement and the income and expense book for accounting for work books and inserts to them |
|
|
Personal cards of employees |
|
|
Vacation schedule and vacation notice |
|
|
Time sheet |
|
|
Pay slips and order to approve the pay slip form |
|
|
local acts. To obligatory local acts include the rules of the internal work schedule, regulation on remuneration and bonuses, regulation on personal data of employees (Article 87 of the Labor Code of the Russian Federation) and instructions on labor protection (Article 212 of the Labor Code of the Russian Federation) |
|
|
Labor protection documents |
|
|
Orders (instructions) of the employer |
|
|
Documents of military registration of citizens |
|
|
Regulations on the branch, representative office |
|
|
Regulations on certification |
|
|
Regulation on the protection of trade secrets |
|
|
shift schedule |
|
|
Results of medical examinations of employees, if necessary (Article 212 of the Labor Code of the Russian Federation) |
|
|
Other documents (should be available only in cases where any actions of the employer depend on the will of the employee or are provided for by the legislation of the Russian Federation) |
Labor inspectors have the right to exercise supervision and control over the exercise of the rights of employees to receive security under compulsory social insurance from accidents at work and occupational diseases, as well as for the appointment, calculation and payment of temporary disability benefits at the expense of employers (Article 356 of the Labor Code of the Russian Federation). In addition to documents confirming the payment of benefits, labor inspectors can check the availability of a first-aid kit, since Article 223 of the Labor Code of the Russian Federation obliges employers to create sanitary posts with first-aid kits. All organizations are required to have a first-aid kit, regardless of whether their activities are related to production or not. Inspectors can check not only the presence of a first-aid kit in the organization, but also its complete set.
The statute of limitations for liability and the amount of fines for violation of labor laws
Touching upon the topic of inspections, it is impossible to ignore information about the statute of limitations for bringing to responsibility for violations of labor laws. After this period, the employer cannot be held liable for the offense committed, regardless of the presence of guilt in the offense.
The decision in the case of an administrative offense can not be issued after 1 year from the date of the administrative offense Art. 4.5 of the Code of Administrative Offenses of the Russian Federation.
If the statute of limitations for bringing to responsibility has expired, the case of an administrative offense should be terminated, paragraph 1 of Art. 24.5 of the Code of Administrative Offenses of the Russian Federation.
The limitation period for bringing to administrative responsibility for an offense in respect of which the obligation provided for by a legal act has not been fulfilled by a certain period of time begins to expire from the moment the specified period occurs.
The amount of administrative responsibility is given in table 4.
Table 4
Responsibility for "labor" violations
|
Norm Code of Administrative Offenses of the Russian Federation |
Offense |
A responsibility |
||
|
officials |
IP |
organizations |
||
|
Part 2 Art. 5.27 |
Actual admission to work by a person not authorized by the employer, if the latter refuses to conclude an employment contract with a person admitted to work |
|||
|
Part 3 Art. 5.27 |
Registration evasion or improper registration employment contract |
5,000 - 10,000 rubles |
50,000 - 100,000 rubles |
|
|
Conclusion of a civil law contract that actually regulates labor relations |
||||
|
Part 5 Art. 5.27 |
Committing an offense under Part 2 or 3 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation by a person previously punished for a similar offense |
Disqualification for 1-3 years |
30,000 - 40,000 rubles |
100,000-200,000 rubles |
|
Part 1 Art. 5.27 |
Other violations of labor laws and regulations |
Warning or 1,000 - 5,000 rubles. |
Warning or 30,000 - 50,000 rubles. |
|
|
Part 4 Art. 5.27 |
Committing an offense under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation by a person previously punished for a similar offense |
20 000 rub. or disqualification for 1-3 years |
10,000 - 20,000 rubles |
50,000 - 70,000 rubles |
|
Part 3 Art. 5.27.1 |
Admission to work for an employee who has not passed:
|
15,000 - 25,000 rubles |
110,000 - 130,000 rubles |
|
|
Admission to work of an employee if he has medical contraindications |
||||
|
Part 4 Art. 5.27.1 |
Failure to provide employees with funds personal protection |
20,000 - 30,000 rubles |
130,000 - 150,000 rubles |
|
|
Part 1 Art. 5.27.1 |
Violation of other state regulatory requirements for labor protection |
Warning or 2,000 - 5,000 rubles. |
Warning or 50,000 - 80,000 rubles. |
|
|
Part 5 Art. 5.27.1 |
The commission of administrative offenses under Part 1 - 4 of Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation by a person previously punished for a similar offense |
30,000 - 40,000 rubles or disqualification for 1 - 3 years |
30,000 - 40,000 rubles or suspension of activities for up to 90 days |
100,000 - 200,000 rubles or suspension of activities for up to 90 days |
|
part 23 of Art. 19.5 |
Failure to comply with the deadline or improper compliance with the lawful order of the state labor inspector |
30,000 - 50,000 rubles or disqualification for 1-3 years |
30,000 - 50,000 rubles |
100,000 - 200,000 rubles |
The most frequent violations of labor legislation based on the results of inspections by the State Inspectorate for the city of St. Petersburg in 2015, the number of decisions made on the appointment of administrative responsibility and the amount of fines are shown in diagrams 3, 4 and 5.
Diagram 3
Diagram 4
Diagram 5
Bibliography
1. Labor Code Russian Federation dated December 30, 2001 N 197-FZ.
2. Federal Law of December 26, 2008 N 294-FZ “On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Implementation of State Control (Supervision) and Municipal Control”.
3. Administrative regulation performance Federal Service on labor and employment of the state function for the implementation of federal state supervision over compliance with labor laws and other regulatory legal acts containing norms labor law, approved by Order of the Ministry of Labor of Russia dated October 30, 2012 N 354n.
4. Guidelines on planning by state labor inspectorates in the constituent entities of the Russian Federation measures to implement federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms approved by Order of Rostrud of October 28, 2010 N 455
5. Decree of the Government of the Russian Federation of November 23, 2009 N 944 “On approval of the list of activities in the field of healthcare, education and social sphere carried out by legal entities and individual entrepreneurs, in respect of which scheduled inspections are carried out at regular intervals”.
6. Decree of the Government of the Russian Federation of September 1, 2012 N 875 “On Approval of the Regulations on Federal State Supervision of Compliance with Labor Legislation and Other Regulatory Legal Acts Containing Labor Law Norms”.
7. Convention N 81 of the International Labor Organization "On Labor Inspection in Industry and Trade". Concluded in Geneva on 07/11/1947.
8. Decree of the Government of the Russian Federation of June 30, 2010 N 489 “On approval of the Rules for the preparation by state control (supervision) bodies and municipal control bodies of annual plans for scheduled inspections of legal entities and individual entrepreneurs”.
9. Order of the Ministry of Economic Development of the Russian Federation of April 30, 2009 N 141 “On the implementation of the provisions federal law"On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control."
10. Civil Procedure Code of the Russian Federation No. 138-FZ dated November 14, 2002.
11. Decree of the State Standard of the Russian Federation of 03.03.2003 N 65-st “On the adoption and implementation of the state standard of the Russian Federation (together with “GOST R 6.30-2003. State standard of the Russian Federation. Unified documentation systems. Unified system of organizational and administrative documentation. Documentation Requirements).
12. Code of the Russian Federation on Administrative Offenses of December 30, 2001 N 195-FZ.
13. Decree of the Plenum of the Supreme Court of the Russian Federation of 24.03.2005 N 5 “On some issues arising from the courts when applying the Code of the Russian Federation on Administrative Offenses”.
14. Order of the Ministry of Health and Social Development of the Russian Federation dated 05.03.2011 N 169n “On approval of requirements for completing products medical purpose first aid kits for employees.
15. Draft Federal Law N 983383-6 “On Amendments to Certain Legislative Acts of the Russian Federation on Increasing the Responsibility of Employers for Violations of the Legislation in Part Relating to Wages” (as amended in the State Duma of the Federal Assembly of the Russian Federation, text as of 27.01. 2016).
16. Order of the Ministry of Culture of Russia dated August 25, 2010 N 558 “On approval of the “List of typical managerial archival documents generated in the course of activities government agencies, local authorities and organizations, indicating the terms of storage "
17. Federal Law No. 43-FZ of March 2, 2016 “On Amendments to the Federal Law “On Archiving in the Russian Federation”.
Inspectors can come to visit you in three cases: as part of a scheduled, unscheduled inspection (for example, after an employee complains about the employer), as well as during the investigation of an accident with a company employee. The date of the scheduled inspection can be found on the websites of the relevant supervisory authorities (GIT of the corresponding region, the Prosecutor General's Office of the Russian Federation).
If you look at it step by step, the check takes place according to the following algorithm: the organization receives a notification from the GIT about the provision of documents, then the check itself, after it an act and instructions are drawn up based on its results, and administrative responsibility is brought to bear in case of violations.
In what cases will the GIT refuse to consider an employee's complaint? Find out the answer of experts by phone by connecting New Product "Expert advice. Checks, taxes, law" .
Of course, at each stage there may be subtleties. For example, the list of requested documents will certainly be expanded: inspectors visiting you will in any case ask you to show something extra. And you have to be ready for this. On the other hand, when you see the date of a visit to your company on the calendar, you should not immediately become discouraged. If on the appointed day of the company, for objective reasons, it is not possible to receive "guests", it is definitely worth discussing the possibility of rescheduling with the GIT. Another point is connected with the date, which is important after the completion of the check. An appeal against an act and an order in court is possible only within 10 calendar days from the date of delivery or receipt of a copy of the document. Do not forget about this if the GIT visit to the company is scheduled on the eve of the holidays.
What topics and documents are of primary interest to inspectors?
I'll start with the main face of the company - CEO. As you know, in case of violations, responsibility can be assigned to the organization and separately to executive who is the head of the company. In this regard, an expatriate director is particularly at risk. In accordance with Art. 26 of the Federal Law of August 15, 1996 No. 114-FZ "" after two administrative fines, he may simply not be allowed into the territory of Russia. In this regard, I recommend documenting the transfer of responsibility from the CEO to the HR manager or functional manager. To do this, it will be necessary to issue an order imposing on him the responsibility for maintaining personnel records management and responsibility for violations, make appropriate changes to the employment contract and job description, as well as issue him a power of attorney to represent interests, to sign on personnel matters.
Equally interesting is the employment contract of the head of the GIT. BLS practice shows that there are always errors in this document: functionality and responsibility are not indicated, the place of work, working conditions and other conditions, including mandatory ones (), are incorrectly indicated.
I advise you to prepare founding documents company (as a rule, GIT requests copies certified by a notary public or company seal).
During the audit, the staffing of the company will be studied. It is in it that you can see different salaries in the same positions, which, in accordance with the law, is a violation (). Simply put, the same positions should have the same salary. If this is not the case for you, be prepared that, in addition to the actual fine for violation in accordance with, you will have to pay extra for those who had a lower salary (for at least three years (the statute of limitations), and possibly for the entire period, if so the inspector of the GIT will decide). There is a way out of this situation, for example, in the introduction of unique positions with the division of functionality and unique job descriptions. But this needs to be done right now, without waiting for a scheduled or, worse, an unscheduled inspection, since this project is quite voluminous and labor-intensive.
Of equal interest to inspectors will be documents relating to wages: settlement and payrolls, certificates of various payments, etc. I would like to draw your attention to the fact that in the documents the dates of payments must be exact, and not floating "until such and such a date." Naturally, it is necessary to pay salaries on the same day: neither earlier nor later, with the exception of weekends, in which case the salary is paid the day before ().
Wage indexation deserves special attention. It must be (). Therefore, you will be asked for a separate local regulation governing its implementation. The procedure for its implementation, as a rule, is prescribed in the Regulation on remuneration or the Internal Labor Regulations. If it doesn’t exist yet, I recommend starting developing it right now. Let me remind you that indexation is carried out by the same amount and in relation to absolutely all employees. If your LNA indicates 2% per year, then it is at this level that each employee's salary is indexed.
Another subject of analysis is the time sheet. This document is the main source of information on labor protection. Imagine that you have indicated: the briefing has been carried out and there are signatures of all employees, and the time sheet will show that one of the employees was on vacation, two more were on a business trip, etc. But it is labor protection that poses the greatest risks to business. Failure to conduct introductory briefing, periodic briefings, medical examinations (for mandatory cases) and much more - all this is fraught with huge risks. Let me just say that if an organization does not have a labor protection system, the total fine for violations per employee can reach 600 thousand rubles.
Here I will add one more risk: it is connected with special assessment working conditions. The law requires posting its results on the corporate website (clause 6, article 15 of the Federal Law of December 28, 2013 No. 426-FZ ""). Someone, even today, may not have it, foreign missions may not be able to access the corporate site. I am sure that it is easier and cheaper to make a separate simple website than to prove in court later that you did not have the opportunity to publish this information. In addition, a special assessment should be carried out not only in relation to newly created jobs, but also in case of renaming of posts. Not everyone remembers this.
The vacation system poses serious risks to business. GIT during each scheduled inspection checks the vacation schedule. The very absence of a schedule entails a fine of up to 50 thousand rubles. (), but failure to provide leave threatens with the same fine, but for each case, that is, for each employee. In addition, there is an even more serious danger due to unused vacations. According to the results of one of the recent inspections, the capital's GIT announced a new "interpretation" of the violation. The inspectors saw signs ("Use of slave labor"). Possible punishment for this is up to imprisonment for a term of 3 to 10 years.
Pay very close attention to the theme of the corporate fleet: issuing official cars or compensation for the use of a personal car. GIT is aggressively trying to recognize all employees using company vehicles as drivers. Even if it is, for example, a regional sales manager who does not act as a driver, but only moves between clients. If this topic affects you, be prepared to provide as many documents as possible: from certificates of medical examinations to documents confirming the technical integrity of the transport.
Of course, this is not the whole list of requests and documents of interest to the GIT. But all of them are directly related to compliance with the law, which means that it is in your power to analyze it in a timely and thorough manner, monitor changes and judicial practice.
GIT has already formed an inspection plan for 2019. You can also see your organization among the companies being checked. What does a personnel officer need to know about scheduled inspections of the GIT? Download the plan for your county.
In the article:
Download related documents:
How to determine the frequency of scheduled inspections for your company
The introduction of a risk-based approach allows employers to independently calculate how often they will be tested in a planned manner. The “Regulations on Federal State Supervision of Compliance with Labor Legislation and Other Regulatory Legal Acts Containing Labor Law Regulations” (approved by Decree of the Government of the Russian Federation of September 1, 2012 No. 875, as amended in 2017) will help us with this.
The Regulation defines the criteria by which all employers are assigned a category of risk of violation of labor rights. Three criteria:
- Sustainability of good employer behavior. If the GIT has no information about violations in your company, then this indicator is zero. It increases if the organization delayed wages, there were cases of injuries in the previous year, or a decision on administrative punishment (fines or warnings) in the previous three years.
- Potential Harm. The employer cannot influence this indicator. It depends on the number of affected workers in the industry as a whole and is calculated statistically by Rostrud. This figure is reviewed every three years.
- Distribution scale negative consequences . This figure depends on the size of the company. The larger the number of employees, the higher the specified coefficient.
The frequency of scheduled inspections directly depends on the assigned category:
|
Frequency of scheduled inspections of the GIT for 2019 |
||
|
high risk |
1 time in 2 years |
Chief Inspector of the State Inspectorate of the Russian Federation |
|
Significant Risk |
1 time in 3 years |
Chief Inspector of the State Inspectorate in a constituent entity of the Russian Federation |
|
Medium Risk |
1 time in 5 years |
|
|
moderate risk |
1 time in 6 years |
|
|
low risk |
Checks are not carried out |
If you are unsure of your knowledge, take a course in high school HR:
Download the GIT inspection plan for 2019 in your region
On the websites of the territorial GIT, plans for inspections of legal entities and individual entrepreneurs are published in the public domain. In order not to search for your region on the site, use the summary table from the editors.
If your organization was illegally included in the inspection plan, the employer has the right to write an application for exclusion from the inspection register.
One statement is not enough. If the employer believes that he was unreasonably included in the annual GIT inspection plan for 2019, he needs to collect a whole package of documents. The expert of "System Kadra" will tell, what papers are needed and what to do after submitting documents
If you do not agree with the assigned risk category, you can apply to change the category. Moreover, if in the current year your company was not punished for violations of the Labor Code of the Russian Federation, then you can apply for a reduction in the risk group by one category.
Scheduled Check Characteristics
The first scheduled inspection can occur no earlier than three years after the registration of a legal entity or individual entrepreneur (or three years after notification of the start of a new activity).
A scheduled inspection of the GIT in 2019 can be on-site, when the inspector arrives at the company's office, or a documentary one, when you bring it to the GIT Required documents. The second option is more gentle.
|
Characteristics of a scheduled inspection |
Documentary verification |
Field check |
|
Location |
Location of GIT |
At the location of the organization or the place of actual implementation of activities |
|
Deadline |
General rule: No more than 20 working days The inspection period for each branch, representative office or separate division of the organization is set separately, but not more than 60 working days |
|
|
For a small business - no more than 50 hours per year For a micro-enterprise - no more than 15 hours per year |
||
|
Documents - the grounds for verification, which are presented by the inspector |
Request for submission of documents for verification |
Inspector's license Certified copy of the inspection order The procedure for carrying out control measures (at the request of the person being checked) |
In the "Personnel System" you will find a list of checklists, and a description of all the important points - from periodicity to mandatory documents. Look into the material to prepare for audits in 2019.
How to find out about the start of the test?
The GIT review plan for 2019 does not specify specific dates for the review. Only the month for which the check is scheduled is defined. How to find out the exact date?
The GIT must notify the employer of the exact day of the inspection three days before the start of the inspection activities by sending an order to the organization to conduct a scheduled inspection.
Usually a copy of the order is sent by mail with acknowledgment of receipt. And here the trick “if I don’t receive a letter, I will avoid verification” does not work. Because "... persons who refused to receive the sent materials or did not appear to receive them, despite the postal notice, in judicial practice are recognized as duly notified."
The direction is also considered to be a proper notice. electronic document signed by enhanced qualified electronic signature if the address Email the person being checked is contained in the Unified State Register of Legal Entities (EGRIP).
Clause 12 of Article 9 of Federal Law No. 294-FZ allows other available ways notifications. As such methods, delivery of a copy of the order directly to the representative of the organization with receipt of a receipt, as well as sending a letter by fax can be considered.
It happens that the git check in 2019 is carried out later than indicated in the plan. If it happens in the same year, and the notification came on time, then such a check is legal.
Unfortunately, the answer is wrong. Look for clues in the ready-made solution How the labor inspectorate conducts a scheduled inspection.
The list of documents that the GIT sends before checking is very large, there are more than 70 items in it. They can be divided into blocks by topic:
1. Statutory documents
2. Payroll documents
3. According to personnel records:
- employment contracts and agreements;
- and changes to it;
- orders - admission, dismissals, transfers, vacations;
- work books and ;
- local regulations (LNA).
4. On labor protection (OT):
- regulatory documents - orders, LNA, job descriptions;
- documents on medical examinations, training;
- and etc.
5. Documents for foreign workers.
The list can be expanded during the course of the review if additional information is required.
Stage 2. The most important directions
The volume of areas of work being checked can make even experienced professionals worry. What in the listed list will pay attention first of all? The most checked points are:
- Salary arrears - presence or absence.
- Timely payment of wages and vacation pay, as well as benefits.
- Availability and content of employment contracts.
- Availability of a vacation schedule and its implementation.
- Correctness of registration of dismissals and calculation.
- Employment books - availability and correctness of execution.
- and LNA related to wages.
- Documents for (if any).
- Everything related to labor protection. The list depends on the presence / absence, industrial injuries etc.
Stage 3. Employment contracts
First you need to make sure that all employees have them. Then check the content of the contracts, namely, the presence of all the main conditions in them. For this, we turn to Art. 57 of the Labor Code of the Russian Federation. The main conditions include:
- Place of work.
- labor function.
- Payment amount and payment date.
- Work start date.
- The nature of the work.
- Working conditions in the workplace.
- Compensation and benefits, if any.
If any of these items is missing, you need to draw up additional agreements and enter the missing information.
Another step at this stage is to check additional agreements. Determine what changes have occurred during the work of employees and whether all additional equipment is available. agreements. Changes in wages, positions, working conditions are especially important.
Stage 4. Staffing and LNA
Staffing should be in any organization. Usually request the current revision of the document and last changes to him. Check if your full-time “forks” of salaries and whether the salary is the same for the same positions. In other words, there cannot be different salaries for the position of "manager" in the same department, just as there cannot be the number "20,000 - 25,000". It is also important that the size of payments correspond to the regional minimum wage for the current year.
Mandatory LNA - Internal Labor Regulations (PVTR) and Regulations on remuneration (bonuses). PVTR should contain sections:
- The procedure for admission, transfer and dismissal.
- Rights and obligations of the employee and the employer.
- Schedule, working time and rest time.
- Pay and incentives.
- Responsibility of the parties.
There should be a provision on bonuses if there are bonuses in the organization. If there is another system of payment, the "Regulation on remuneration" or another LNA must answer all questions of the inspectors about the basis for payments to employees.
The rest of the LNA are of interest to the GIT if they are related to benefits, compensation and other cash receipts. The Travel Regulations, for example, may be requested to be reviewed if your organization has increased per diem allowances. And here is the regulation appearance specialist”, “Regulations on document flow”, etc. are unlikely to receive the attention of inspectors.
Stage 5. Vacation schedule
Vacation schedules have a short shelf life - 1 year, so efforts should be directed to the current and past years. The law does not provide for acquainting employees with the schedule, but it does provide that the employee must be notified of the upcoming vacation two weeks in advance. The inspectorate loves to check the timing of notifications. If it is customary in your organization to divide vacation into parts, this should be spelled out in the PVTR or in the Vacation Regulations. The fact that an agreement with the employee on the division of vacation has been reached may be indicated by statements asking to schedule several parts of the vacation.
Check if the schedule matches the actual vacation if you know that it is sometimes not followed. In each case of transferring vacation, you need to issue an employee application for transfer and an order. If there are several transfers in a month, the order can be one for all changes.
In the schedule, you need to enter the dates of actually granted vacations and the reasons for their transfer - an application, an order.
And, of course, the schedule itself must be approved no later than 15 days before the beginning of the year for which it was drawn up.
Stage 6. Personal cards and orders
T-2 personal cards must contain the maximum of the requested information. Check for records of transfers, salary changes, and vacations granted. Data can be entered both manually and in printed form. Be sure to take the signatures of the employee in the column "Reception and transfers" opposite each entered order.
Hiring and dismissal orders have a shelf life of 75 years, so it makes sense to keep them accurate, regardless of the checks. Each order must have a basis - a statement, an employment contract, an agreement of the parties, etc. Timely familiarization with the order of the employee is mandatory. It is unacceptable to draw up a document "backdated". The date of employment must coincide with the date of the order or be later.
Vacation orders must be checked for availability and compliance with the vacation schedule. It is also important to take the signatures of employees in orders before the vacation, preferably 2 weeks in advance if you do not have a practice of writing notice of the upcoming vacation.
Stage 7. Labor protection
This direction is one of the most checked, it is necessary to approach it as seriously as possible. Regardless of the specifics of the enterprise, the organization must have:
- Occupational safety specialist (OT), if the company has more than 50 people, or the person who is assigned the relevant duties, if the number is less than 50 people.
- Documents confirming .
- Labor protection instructions.
- Documents for (SUT)
In organizations where there are harmful conditions work, the list is significantly expanding, it is also supplemented by primary and periodic briefing and magazines on it, additional instructions, documents on medical examinations.
If the SOUT has not yet been carried out, but there is already an order to conduct it, as well as, the inspectors will not be punished for the lack of special. estimates. Otherwise, you may face a fine.
In general, for labor protection, it is worth checking the presence of all signatures in the journals, the correspondence of the dates of admission and instruction, and if gaps are found, restore to the maximum.
Stage 8. "Special" employees
GIT pays close attention to the following categories of employees:
For these employees, all the papers drawn up for them are checked: contracts, orders, provisions on guarantees and compensations. It is important to check the content of the contract for each such employee: is there information about a reduced day for disabled people or about the grounds for a fixed-term contract with a foreigner. If the day is shortened, this is reflected in the report card, you need to check it too.
In conclusion, I would like to remind you that 10 days are given for the preparation of documents during a scheduled inspection, so even during this period you can do a lot. And one more thing - do not rush to sign the inspection report, carefully read all the comments, sometimes employers manage to prove their case even before orders and fines. In case of disagreement with the results, do not rush to pay the fine, you have the right to go to court, and only after its decision it will be clear whether the decision of the labor inspectorate remains in force.
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Hello! Today we will discuss what is a check labor inspectorate what it reveals violations, and what threatens the employer who violates the law. Check from tax office the second most popular after the tax audit.
If you have at least one hired employee - be prepared that you will be checked for compliance with labor laws and labor protection standards. But, as they say, forewarned is forearmed. Undesirable consequences can be avoided if you know when, how they will be tested, and how you can prepare.
The procedure for conducting an inspection by the labor inspectorate
The entire verification process consists of several stages:
- Alert. The inspectorate notifies the employer of a scheduled on-site or documentary inspection no later than three days in advance by sending him a copy of the order to conduct the inspection against signature. For its part, the person being checked has the right to request complete information about the bodies and their employees who will carry out the check, and a regulation with a detailed procedure for control measures. Even about an unscheduled inspection, the entrepreneur must be warned by letter a day before it starts.
- Verification of documents, on-site verification by the labor inspectorate. Usually, the check begins with a request for copies of the documents of interest to the inspection, but it happens that the first check is carried out on site. The inspector must begin work by presenting an individual certificate and an inspection order that you received earlier as a notification. Only the inspection carried out by the person specified in the inspection order will be legal.
Maximum scan duration:
- Based on the results of the inspection, two copies of the act are drawn up.. In rare cases, the act is drawn up immediately with the employer, most often the person being checked is called to the inspection to draw up documents.
- If the inspector finds violations(however sad, but this happens in most cases), then he will issue an order containing:
- Description of the violation and the date it was committed;
- Link to relevant law;
- Deadlines for elimination of violations. If a re-inspection shows that the violations have not been eliminated, the company faces administrative liability.
According to the law, the results of the audit can be appealed.
The boundaries of what is permitted
What do labor inspectors have the right to do, and what actions are outside the scope of their job descriptions?
The powers are detailed in Government Decree No. 875, but here are the main ones:
- Check the employer at any time of the day. However prerequisite is the presence of a certificate and an order;
- Receive papers and data for verification, both from the employers themselves and from federal or territorial authorities;
- Take samples of substances for analysis. Only if an appropriate act is drawn up;
- Carry out investigation of accidents, the cause of which could be a violation of labor protection standards;
- Submit instructions to eliminate violations. Even about the removal from work of certain persons. The employer has no right to refuse their execution;
- In extreme cases, send a request to the court to terminate the activities of the company;
- Participate in litigation as an expert.
Please note that in 2019 inspections will be held in a new format, which was established by Government Decree No. 1080 of 09/08/2017. The powers and procedures of the inspectors remained the same. The changes affected the results of the check. Now they will be entered into checklists, which are grouped by topic. One sheet - one topic.
Take, for example, an employment contract. The inspector has the right to ask the employee whether he has concluded an employment contract with the company. If it turns out that it is not, and this will be confirmed by the course of the audit - the contract was not presented by the company's management upon request, a violation is entered on the checklist. All identified violations must be documented so that later there are no disputes - disagreements with the results of the audit.
In fact, the checklists are a kind of questionnaire - a guide, according to which the inspector asks questions within the framework of a certain topic of the checklist, and when receiving answers, requires documenting them. A total of 132 checklists have been approved, but this does not mean that they will all be completed. In each case, the inspector, based on the activities of the company, decides on his own which sheets to use and which not. Remarkably, he is not entitled to check more than indicated in the checklists.
Inspectors cannot:
- Request information, samples that are not related to the object of verification;
- Seize the originals of any documents.
Grounds for verification by the labor inspectorate
Inspections by the labor inspectorate, like most other inspections, can be scheduled or unscheduled.
Any organization can fall under a scheduled inspection by the labor inspectorate; for an unscheduled inspection, more compelling reasons are needed.
So, the reason for the inspection can be:
- A scheduled check may be based on one of the reasons:
- The employer has registered or started to conduct entrepreneurial activity 3 years ago;
- The previous audit ended 3 years ago.
According to the moratorium on inspections of small businesses in Russia, until the end of 2018, enterprises falling under the law were exempted from scheduled inspections by the labor inspectorate. Currently, the Ministry of Economic Development and the Prosecutor General, on behalf of the Government, are developing amendments to the legislation providing for the extension of this moratorium until 2022.
The schedule of inspections for 2019 is already presented on the website of the Prosecutor General's Office.
- The impetus for an unscheduled inspection (the law does not provide for restrictions on the frequency of such inspections) can be:
- The expiration of the term for the execution of the order from the last audit;
- Issuance of an order on the basis of an order from the prosecutor's office;
- Delay by the employer of wages, as well as its issuance not in full;
- Payroll is lower statutory minimum;
- Violation Labor Code RF, which caused a threat to the health of employees;
- Receipt of complaints from employees about violation of their rights specified in the Labor Code of the Russian Federation or a request to check working conditions (the inspection does not consider anonymous appeals, but it must act confidentially, without advertising on whose complaint the check is organized).
What does the labor inspectorate check?
Compliance with any norms of labor legislation at the enterprise is subject to verification.
The labor inspector may request (and you will be required to provide) the following documents:
- Employment contracts, personal cards of employees and other data about them;
- Employment books of employees at the enterprise and their accounting journal;
- Work schedule and time sheet;
- Sick leave certificates, documents on medical examinations of employees;
- Vacation schedule, as well as other related documents (employee statements);
- Settlement sheets;
- Accounting statements, individual employee accounts and other details of employee benefits;
- The charter of the company and internal regulations;
- Registration of work with citizens of other states and beneficiaries;
- Regulations on wages, bonuses, personal data of employees;
- Evidence (personal signatures) that all employees are familiar with the above documents.
The exact list of documents to be checked by the labor inspectorate depends on the basis for its conduct.
How to Prepare for a Labor Inspection Check
The most frequent violation, entailing a fine to the employer, is the lack of all necessary documents.
Local acts are obligatory for each, even the smallest organization with employees. For example, this is a set of internal regulations, a regulation on the personal data of employees.
It is also mandatory to issue pay slip(payment via bank transfer is no exception) - they do not have to be issued against signature, but employees should be aware of their right to know the monthly payment made. If desired, the employer has a way to insure himself by keeping a journal of issuing pay slips.
The employer must keep the employment records for all employees in a safe.
Often, employers make inaccuracies in the preparation of basic documents. For example:
- The rate of remuneration is not prescribed;
- The copy of the employment contract (any other document) owned by the employer is not signed by the employee;
- The vacation schedule is signed later than 14 days before the beginning of the calendar year.
In addition to documents, it is worth taking care of compliance with all labor laws. Timely certification and safety of employees at their workplace are very important. Are special clothing for workers or accessories, protective masks or gloves, and much more depends on the type of work they carry out.
Other common mistakes:
- The annual leave is divided into small parts, and none of them reaches 14 days;
- Wages below the minimum wage;
- The amount of wages is not indicated in Russian rubles;
- Wages are issued less than once every 15 days, while there is no written consent of the employee for such a payment schedule;
- Hiring foreign citizens fixed-term contract before the expiration of the work permit. To avoid administrative liability with foreign citizens, it is better to conclude standard open-ended contracts.
Penalties from the labor inspectorate
If the labor inspector reveals violations, then first of all the employer will be presented with an order. Failure to comply with all points of the order may result in suspension of activities or a fine.
Depending on the violation, a fine may be brought against the company itself, its manager, individual entrepreneur, or responsible persons (this may be the head personnel department or Chief Accountant), if it is provided by the rules of the company.
The most common penaltiesissued by the labor inspectoratein2018 year:
|
Violation |
Official fine | Penalty for IP |
Penalty for a legal entity |
|
|
Violation of labor law |
1,000 - 5,000 rubles |
30,000 - 50,000 rubles |
||
| Repeated violation of labor law | 10,000 - 20,000 rubles or disqualification for up to three years | 5,000 - 10,000 rubles |
50,000 - 100,000 rubles |
|
|
Admission to work of an employee who does not have the right to do so (for example, without a permit book), while the employee denies this. |
10,000 - 20,000 rubles for an employer and 3,000 - 5,000 for an employee |
|||
|
Evasion of concluding an employment contract with an employee or its incorrect execution |
10,000 - 20,000 rubles | 5,000 - 10,000 rubles |
50,000 - 100,000 rubles |
|
|
Repeated evasion of concluding an employment contract, deliberately incorrect execution of it or re-admission to work of an employee who does not have the right to do so |
Disqualification for up to three years | 30,000 - 40,000 rubles |
100,000 - 200,000 rubles |
|
|
Violation of labor protection requirements |
2,000 - 5,000 rubles |
50,000 - 80,000 rubles |
||
|
Repeated violation of labor protection |
30,000 - 40,000 rubles or disqualification up to three years |
100,000 - 200,000 rubles or termination of activities for up to three months |
||
|
Violation of the requirements for conducting a special inspection |
5,000 - 10,000 rubles |
60,000 - 80,000 rubles |
||
|
Admission to work for an employee who has not been instructed in labor protection |
15,000 - 25,000 rubles |
60,000 - 80,000 rubles |
||
|
Failure to provide employees with personal protective equipment (when required) |
25,000 - 30,000 rubles | 130,000 - 150,000 rubles | ||
Administrative investigation by the labor inspectorate
The labor inspectorate visits the enterprise with an inspection in order to monitor compliance with the law, but if the inspector works to establish and record the fact of violations by the employer and bring the violator to justice in accordance with the RF Code of Administrative Violations, then we are talking about an administrative investigation.
The decision to start an investigation is made by the employee of Rostrud or an employee of the state labor inspectorate.
An investigation is initiated in the following cases:
- As a result of the check that revealed violations. But before proceeding with the investigation, the inspector is obliged to obtain explanations from the suspected violation, testimony from witnesses and victims (if any), then formally request information to resolve the case;
- As a result of a complaint against the employer or a message containing enough data to suspect the employer of an administrative violation.
The document on the initiation of an investigation is called a determination. Within 24 hours after its preparation, a copy of the document against receipt is provided to the employer and the victim.
The definition text contains:
- Date and place of its compilation;
- Full name, position of the compiler;
- The reason for initiating an administrative case;
- Testimony of witnesses and other possible evidence of the offense;
- The relevant article of the Code of the Russian Federation on Administrative Offenses;
- A record about explaining to the participants in the investigation their rights and obligations.
The investigation lasts no more than a month from the date of initiation of the case, it can be conducted both by the inspector who conducted the earlier inspection, and by another state inspector labor.
Further development of events depends on the results of the investigation.
If the violation is not confirmed- The inspector issues a decision to dismiss the case.
If a violation has been proven- the inspector forms a protocol on an administrative offense. Within 15 days, the case will be considered by the state labor inspectorate, in rare cases (as a rule, if the violation was repeated), the inspector takes the case to court.
The completion of the investigation will be the issuance by the inspectorate or the court of a decision to impose an administrative penalty or to dismiss the case.