The employer has the right to conclude an employment contract. What to do if the employer has not concluded an employment contract with the employee? The initial stage of approval and familiarization

If we analyze labor legislation, then we can distinguish three components of the stage in the emergence of labor relations based on the conclusion. Although in practice they can occur almost simultaneously.

The first stage is an introductory

At this stage, the parties of the future not only get to know each other visually, but must fulfill certain obligations if their intentions are really aimed at the emergence of an employment relationship.

The employee, in accordance with Art. 65 of the Labor Code of the Russian Federation, must present to the employer the documents required for employment, these are:

• passport or other identity document;
• employment history;
• insurance certificate of state pension insurance;
• a military ID or other document of military registration (administrative responsibility is established for hiring persons liable for military service without military registration);
• a document on education or the presence of a specialty, profession.

If the work requires the employee to have certain special knowledge, special training, then the presentation of documents on education, qualifications or the presence of special knowledge is mandatory.

Tax legislation provides for the need to present a certificate of assignment of a TIN (individual taxpayer number).

The legislation on compulsory health insurance provides for the presentation of a policy of compulsory health insurance.

Of course, if a person goes to work for the first time, then he does not have a work book, an insurance certificate of state pension insurance, TIN, and a health insurance policy! and the employer must provide assistance, and in some cases, draw up Required documents(for example, must have work book if the employee who first came to work worked for more than five days (Article 66 of the Labor Code of the Russian Federation).

If an employee gets a part-time job, then instead of a work book, he presents a certificate from the main place of work or a copy of the work book.

It should also be noted that Art. 65 of the Labor Code of the Russian Federation does not provide for the filing of an application for employment, although in practice this procedure has been preserved in many organizations. The application itself does not entail any legal consequences Therefore, in this matter, one should proceed from the established practice in the organization.

The employer is not entitled to demand other documents not provided for by law. He can only in the prescribed manner (Chapter 14 of the Labor Code of the Russian Federation) receive from an employee or other persons personal information(personal data of the employee).

At the introductory stage, not only the employee has responsibilities, but also the employer. Yes, Art. 68 Labor Code The Russian Federation provides that when hiring (before signing employment contract) the employer is obliged to familiarize the employee against signature with the rules of internal work schedule, other local regulations directly related to the work activity of the employee, the collective agreement.

The second stage is the preparation and signing of an employment contract

Speaking about the drafting of an employment contract, the provisions of Art. 57 of the Labor Code of the Russian Federation, which determines that the following are indicated:

• surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract;
• information about the documents proving the identity of the employee and the employer - an individual;
• taxpayer identification number (for employers, except for employers who are individuals who are not individual entrepreneurs);
• information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority;
• place and date of conclusion of the employment contract.

The following conditions are mandatory for inclusion in an employment contract:

• place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit an organization located in another locality - a place of work indicating a separate structural division and its location;
• labor function(work according to position in accordance with staffing, professions, specialties indicating qualifications; specific type of work assigned to the employee);
• the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the period of validity and the circumstances (reasons) that served as the basis for its conclusion;
• conditions of remuneration (including the size of the tariff rate or salary ( official salary) employee, additional payments, allowances and incentive payments);
• working time and rest time (if for this employee it differs from the general rules in force for this employer);
• compensation for hard work and work with harmful and (or) hazardous conditions labor, if the employee is hired under appropriate conditions, indicating the characteristics of working conditions at the workplace;
• conditions governing in necessary cases nature of work (mobile, traveling, on the road, other nature of work);
• a condition on compulsory social insurance of an employee in accordance with the Labor Code of the Russian Federation and other federal laws;
• other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.

If, when concluding an employment contract, any information or conditions were not included in it, then this is not a basis for recognizing the employment contract as not concluded or terminating it. The employment contract must be supplemented with missing information or conditions. At the same time, the missing information is entered directly into the text of the employment contract (and the consent of the parties, in fact, is not required, since they are informational in nature), and the missing conditions are determined by an appendix to the employment contract or a separate agreement of the parties concluded in writing which are an integral part of the employment contract.

The employment contract may provide for additional conditions that do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, in particular:

• on the specification of the place of work (indicating the structural unit and its location) or on the workplace;
• about the test;
• on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;
• on the types and conditions of additional employee insurance;
• and others.

Failure to include in the employment contract any of the specified rights and (or) obligations of the employee and the employer cannot be considered as a refusal to exercise these rights or fulfill these obligations. They will act in accordance with labor laws.

The terms of the employment contract can only be changed by agreement of the parties in writing or in the manner prescribed by Art. 74 of the Labor Code of the Russian Federation.

The employment contract may contain conditions for non-disclosure by the employee of information constituting an official or commercial secret, which became known to the employee in connection with the performance of his official duties.

The legal basis for the inclusion in an employment contract of conditions on non-disclosure of commercial or official secrets by an employee can be both federal laws and other regulatory legal acts, but only at the federal level. In accordance with Art. 139 of the Civil Code of the Russian Federation, information constitutes a commercial secret in the case when this information has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis, and the owner of such information takes measures to protect its confidentiality.

To date, the list of information constituting a trade secret of an organization is determined by the organization itself, but taking into account the law on trade secrets.

The employment contract may establish conditions on non-disclosure of state secrets, they are established in accordance with the law on state secrets.

It should be emphasized that an employment contract with a person admitted to state secrets is concluded only after the completion of its verification by the relevant competent authorities. Citizens admitted to state secrets must necessarily assume the obligation to the state not to disseminate information entrusted to them, constituting state secrets.

In addition to the obligation to maintain state and commercial secrets, the employment contract may also include conditions for the preservation of confidential information entrusted to the employee in connection with the performance of labor duties. The list of confidential information was approved by Decree of the President of the Russian Federation of 0603.1997 No. 188. If the employment contract contains information that does not relate to confidential information, then the employee will not be liable for disclosure of such information.

In order to check the professional suitability of an employee, when concluding an employment contract, by agreement of the parties, it may provide for a condition on testing the employee (Article 70 of the Labor Code of the Russian Federation).

The absence of a test clause in the employment contract means that the employee is hired without a test. In the case when the employee is actually allowed to work without drawing up an employment contract (part two of article 67 of the Labor Code of the Russian Federation), the test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work.

The probationary period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural subdivisions of organizations - six months, unless otherwise established by federal law (in the state civil service, the probationary period is set from three months to a year, in law enforcement agencies up to six months, and a significantly smaller number of certain categories of workers have exemption from the test).

During the probation period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreement, agreements, local regulations.

No test for employment for:

• persons elected by competition to fill the relevant position, held in the manner prescribed by the labor
• legislation and other normative legal acts containing labor law norms;
• pregnant women and women with children under the age of one and a half years;
• persons under the age of eighteen;
• persons graduating with state accreditation educational institutions primary, secondary and higher vocational education and for the first time coming to work in the received specialty within one year from the date of graduation from an educational institution;
• persons elected to elective office for paid work;
• persons invited to work in the order of transfer from another employer as agreed between employers;
• persons concluding an employment contract for a period of up to two months;
• other persons in cases provided for by the Labor Code of the Russian Federation (for example, for students who have successfully completed apprenticeship - Article 207 of the Labor Code of the Russian Federation), others federal laws, collective agreement.

In case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee has the right to appeal against the decision of the employer in court.

If the test result is unsatisfactory, the termination of the employment contract is made without taking into account the opinion of the relevant trade union body and without paying severance pay.

If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation and the subsequent termination of the employment contract is allowed only on general grounds.

If during the trial period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance.

According to Art. 67 of the Labor Code of the Russian Federation, an employment contract must be concluded in writing and drawn up in two copies, each of which is signed by both parties. In this case, one copy is transferred to the employee, and the second remains with the employer. The copy of the employer must be signed by the employee, confirming that he received his copy.

Employment is formalized by the order of the employer, issued on the basis of the concluded employment contract. The content of the employer's order must comply with the terms of the concluded employment contract.

The order of the employer on employment is announced to the employee against signature within three days from the date of the actual start of work. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order.

The third stage - the beginning of labor relations

After amendments were made to the Labor Code of the Russian Federation in 2006, Federal Law No. 90-FZ Art. 61 of the Labor Code of the Russian Federation has undergone changes and, in fact, the stage of the beginning of labor relations has been separated from the stage of drawing up and signing an employment contract.

The current version of the law provides that an employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

The employee is obliged to start performing labor duties from the day specified in the employment contract. If the employment contract does not specify the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract.

If the employee does not start work on the day of commencement of work specified in the law or the contract, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded.

Thus, we conclude that de jure labor relations, according to the legislator's intention, begin with the signing of the contract, and de facto labor relations can be considered to have begun only from the moment the actual commencement of the performance of labor duties. In the previous version of Art. 61 of the Labor Code of the Russian Federation, the employer could not cancel the contract without finding out the reasons for the absence, and had the right to cancel the employment contract only in the absence good reasons absence of an employee.

An unreasonable refusal to conclude an employment contract is prohibited.

Any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, social and official position, age, place of residence (including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to business qualities employees, is not allowed, except in cases provided for by federal law.

It is forbidden to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children.

It is forbidden to refuse to conclude an employment contract for employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work.

At the request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing.

Refusal to conclude an employment contract may be appealed in court.

Very often, both employers and employees do not take the conclusion of employment contracts seriously enough, they approach this issue formally. As a result - errors even in the most elementary things. And in the future, upon termination of the contract or - in the most extreme case! - when considering a dispute between a company and an employee in court, a lot of unpleasant situations can arise.

You should not sign a "template" version of an employment contract without hesitation. There are a number of points that both employees and the employer need to pay attention to. Special attention at its conclusion. Naturally, to each - in the light of their interests.

Moment 1. The order for employment and the employment contract should ideally be fully consistent with each other.

It often happens that the employment contract does not contain important clauses that the employer prescribes in the order for employment. However, the employment contract is primary, so all disputes will be resolved on its basis. This rule also applies to the case when the order is contrary to the contract.

Please note: in principle, if the employer does not want to write long orders, then the terms of the contract in them may well be abbreviated or incomplete. The most important thing is not to prescribe in the order provisions that contradict the contract or are not specified in it at all. Indeed, in this case, they will not have any legal force.

Moment 2. The contract must specify a certain probationary period.

If the employment contract does not expressly state the condition of probationary period, then the employee is considered hired without him at all! And it becomes impossible to dismiss such an employee as having not passed the test.

Please note: as a general rule, the probationary period cannot exceed 3 months. But for the heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices and other separate structural divisions of organizations - 6 months. At the same time, the period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.

Moment 3. The Labor Code of the Russian Federation (Article 59) establishes an exhaustive and fairly large list of cases in which a fixed-term employment contract can be concluded with an employee, which should be guided by.

The conclusion of a fixed-term employment contract without sufficient grounds is illegal. Article 58 of the Labor Code of the Russian Federation expressly provides for a ban on the conclusion of fixed-term employment contracts in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

Moment 4. If the term of the contract concluded for a certain period has expired, and the employee continues to work at the enterprise, it is considered that the contract "turned" into an open-ended one.

If the term of the employment contract concluded, for example, for 1 year, has expired, the employer must issue orders for the dismissal of the employee and his hiring again.

Please note: only after the issuance of such orders, the employer can conclude another fixed-term employment contract with the employee for a certain period. Otherwise, a fixed-term employment contract may be transformed into one concluded for an indefinite period on the grounds that none of the parties demanded its termination due to the expiration of the term.

Moment 5. The employment contract must necessarily indicate the place of work of the employee, indicating the structural unit.

If the employee’s place of work is not clearly and specifically indicated in the contract, then, for example, it becomes very difficult to dismiss him for absenteeism. The court can reinstate the dismissed person and oblige the employer to pay him lost earnings for forced absenteeism.

Please note: according to the explanations of the Plenum of the Supreme Court, a structural subdivision should be understood as branches, representative offices, as well as departments, workshops, sections, etc. Therefore, when the place of work is specified in detail and clearly, the absence of an employee there for more than 4 hours will be considered absenteeism .

Moment 6. The duties of the employee in the employment contract must be spelled out clearly and specifically.

It often happens that in the contract the duties of an employee are spelled out very briefly or very vaguely. But the employer has no right to demand the performance of work not stipulated by the employment contract. Therefore, the statement of a subordinate - "this is not part of my duties!" - it will be very difficult for him to oppose anything. And dismissing an employee as not coping with his duties is almost impossible. Moreover, such a situation is "not good" for the employee either, since he can be entrusted with a lot of additional responsibilities not specified at the time of hiring.

Please note: the lack of job descriptions greatly complicates the situation. Of course, private firms are not required to compile them for their employees. This obligation is limited to public institutions. But the presence of these very instructions can make life much easier for both employees and management.

Moment 7. The employee must receive a copy of his job description against signature (if any!).

Very often, in an employment contract, the employer indicates that the employee must perform duties "in accordance with the job description." But there are no instructions attached to the contract. Moreover, even the employee is not familiar with the instruction, located in the personnel department. As a result, the same uncertainty arises as in the previous case. Therefore, the employee must sign the original instructions. His signature indicates that he is familiar with his exact duties and agrees.

Please note: there is a second option - in the contract itself, you can specify that job description is "an integral part of the contract" But in this case it must be attached to the contract and provided to the employee.

Moment 8. Size wages.

Here the interests of employees and employers diverge sharply.

For the employer: it is beneficial to indicate the minimum salary in the contract. And everything else is paid in the form of various "surcharges". After all, if you set the maximum wage in the contract, then it is impossible to lower it. Such actions are illegal and can be challenged in court.

According to the Labor Code of the Russian Federation, an employee must be warned about such a change two months in advance, and in writing. And he must put a receipt indicating familiarization.

For an employee: it is necessary to require that the maximum wage is specified in the contract.

Moment 9. Description of the work and rest regime of the employee.

AT this case The interests of employees and employers also diverge sharply.

For the employer: it is unprofitable to describe in detail the mode of work and rest. Indeed, in this case, in order to change it, it will be necessary to carry out a complex procedure for changing the employment contract in accordance with Article 73 of the Labor Code of the Russian Federation. Therefore, employers very often indicate in the contract only the duration of the employee's working week. And then they change the regime at their own discretion unilaterally: for example, if necessary, they make a six-day week from a five-day period, changing the time of daily work.

For an employee: you need to demand detailed description mode of work and rest. After all, if the regime of work and rest is not prescribed in the employment contract, the employer does not need to negotiate with the employee to change these working conditions. The manager will not need to look for reasons related to changes in organizational or technological working conditions in order to justify changing this document. After all, the conditions that determine the mode of work and rest of this particular employee are simply not in the contract.

Moment 10. The employee must receive his version of the employment contract against receipt (original!)

Very often, employers do not give the employee a second copy of the contract or give it, but do not take a receipt from him about it. In both cases, the employee can claim that the contract was not provided to him. And the employer - to make changes to the contract without the knowledge of the employee. Therefore, the employer is obliged to conclude an employment contract in two copies. One remains in the personnel department, the other is with the employee. Moreover, a note should be made on the copy of the employer that the second copy was transferred to the employee. Then there will be no claims to each other.

An employment contract can certainly be called the most important document capable of constantly regulating the relations that arise between modern employers and their subordinates. It is on the basis of this document that such an important procedure as employment is carried out.

The obligation of each employer in relation to signing an agreement with its employee is fixed at the official level, in the relevant provisions of the Labor Code of the Russian Federation. It says there that this document absolutely every employee must have, regardless of their position, salary, and other additional factors.

Before the onset of 1992, there was an official possibility of initiating labor relations orally, that is, without signing an appropriate agreement. Thus, the performance by employees of their professional duties was carried out according to the following scheme: at the time of the beginning and termination of official relations, the employer simply made the appropriate entries in the work books of subordinates. Nowhere else was the fact of employment and dismissal recorded.

In 1992, the situation changed dramatically. The authorized body issued an official resolution, which now obliges each employer to draw up and sign labor contracts with employees. Later, all these changes were made to the provisions of the Labor Code of the Russian Federation, namely, to Article 67.

Now the work of an employee in the absence of an officially concluded employment contract is actually a serious violation of established norms and rules. Of course, for the employer in this mode of work there are certain advantages, in particular:

1. The ability to ignore their own responsibilities in relation to providing the employee with normal working conditions. If the subordinate does not have a formal contract, accordingly, the current norms of modern labor legislation will not apply to him.
2. No need for regular tax deductions. As you know, absolutely every employer who hires employees is obliged to regularly make tax deductions, the amount of which is also established by the norms of modern law. The absence of the need for such deductions, of course, favorably affects the income of the boss.
3. The possibility of parting with an employee at any time. It should be noted that this possibility dishonest employers are used quite often. Moreover, in most cases, they do not even need to think about the actual reasons for the termination of professional relations. After all, in fact, the employee was not employed at all in this organization. Therefore, the employer can part with him absolutely at any time, if he has such a desire.
4. The employer has no obligation to pay wages on time. As you know, the exact dates of accrual Money must be specified in the contract. Consequently, the very fact of the absence of such an agreement automatically removes all financial obligations from the employer.

general information

The procedure for concluding an employment contract can pursue several goals:

As you can see, most of the advantages in the procedure for concluding an employment contract apply specifically to employees. Therefore, not entirely conscientious employers often try to evade this procedure by various methods.

However, every modern boss should remember that for the work of employees without previously concluded labor contracts, he may be subject to the measures of responsibility provided for by law. They can be expressed as follows:

1. tax liability. As mentioned above, it is the responsibility of every manager, including individual entrepreneurs, to regularly transfer tax contributions for their employees. The main purpose of such contributions is to provide employees with additional insurance in the event of, for example, temporary disability or getting into other difficult situations. Consequently, the very fact of the absence of an officially concluded employment contract actually cancels the employer's obligations regarding the transfer of insurance premiums. For such a violation, the authorized body will establish obligations in the field of payment of all missed payments. Moreover, an additional fine will also be set for the current amount of the debt, as a punishment for the detected violation.
2. Administrative responsibility. This type responsibility is also expressed in the establishment of a monetary fine. Such powers are available to a special organization - the labor inspectorate. In accordance with the established requirements, its representatives have the right to arrange both planned and unscheduled checks, paying special attention to the study of the activities of a particular employer. At the end of such events, an authorized person always draws up an official act, which records all detected violations. In the future, it is on the basis of this document that administrative responsibility can be established in relation to the perpetrators. It should be noted that such a person can be not only the immediate head of the enterprise, but also, for example, the head of the personnel department, the head of the security service, accounting staff, etc.
3. Criminal liability. This type of punishment, although rare, is also applied to employers. The decision to establish it can be taken exclusively in a judicial proceeding.

When is the oral form allowed?

The performance by an employee of the professional duties assigned to him without a previously concluded employment contract will indeed be possible, but with certain reservations. In particular, a citizen will really be able to start his work by oral agreement with employers. However, in this case, an official employment contract must be concluded within the next 3 days after the start of work. If the employer does not do this, such inaction will be a serious violation of existing legal norms on his part.

The above rule will also apply to those situations in which the parties first concluded a civil law contract, but then it became necessary to recognize these relations as labor relations. In this case, the official contract must also be drawn up and signed by the employer within the next three days.

As can be seen from the foregoing, the work of an employee without an employment contract will be possible only for a very short period of time. In most cases, this period should not exceed 3 days. As for working under such a scheme on an ongoing basis, here the rules clearly state that this type of activity will be flagrant violation existing rules.

If we talk about the main differences that exist between an officially concluded employment contract and a signed civil law transaction, these include the following:

1. The main parties to a civil law transaction are always the contractor and the customer; only the employee and his employer can be present in the employment contract.
2. A civil law transaction must always have a clearly defined time limit. As for the employment contract - it can be concluded in an open-ended form.
3. The main goal of any civil transaction is to obtain a certain result, which is accurately described in the relevant documents. As for labor relations, everything will be much more complicated here. The employee must take care not only of the results achieved, but also of the constant observance of the established rules, including the provisions of the job description.
4. AT labor relations it will be the responsibility of the employer to provide employees with all the necessary devices and fixtures, if any, are required for the performance of its professional functions. As for civil transactions - here the performer himself must take care of the acquisition necessary equipment or materials.

Lack of a written employment contract

As mentioned above, the performance by an employee of his duties in the absence of a written employment contract is a serious violation of established legislative rules. Moreover, it should be noted that the violation will be considered by the employer. That is, possible measures of responsibility will be assigned only to the chief.

If an employee is faced with a situation in which he has already worked in the organization for some time, but the employer still refuses to conclude an employment contract with him, the best solution in this case may be to contact the authorized body. However, at first it is still advisable to try to resolve the dispute that has arisen on your own. To do this, you must contact the manager with a request for an urgent signing of an employment contract. It is advisable to make your requirements in writing.

If attempts to independently resolve the dispute did not lead to the expected results, it is necessary not to waste time and contact the authorized body. Such an entity could be, for example, Labour Inspectorate. An appeal there can be carried out by absolutely any interested person, with a preliminary preparation of a written application. In it, it is necessary to indicate in detail all the important details of the current situation, as well as present the existing requirements.

It should be noted that any employee will also have a legal right to apply to the court. For this interested person first, it will be necessary to prepare a competent statement of claim. After considering the information provided, the court, in the presence of all necessary evidence, will definitely make a decision in favor of the plaintiff. This means that direct obligations will be established in relation to the employer regarding the urgent conclusion of a formal contract with his subordinate.

Results

Thus, work in the absence of an employment contract can be carried out by an employee, but only if certain conditions, in particular:

1. This is allowed at the time of employment of the subordinate. He can start his labor activity immediately, even in the absence of an officially signed contract. However, in this case, the employer will be obliged to submit this document to the subordinate for review no later than within 3 days after the start of the performance of labor functions.
2. If the employer refuses to sign an employment contract with his employee, the best solution may be to report this violation to the authorized body.
3. You can contact the prosecutor's office, the judicial institution or the labor inspectorate.
4. Appeal to the above authorities occurs on the basis of a preliminary written application. There it is necessary to indicate the essence of the problem that has arisen, as well as present the corresponding requirements.
5. An employment contract concluded by an employer with an employee must always be drawn up in two identical copies. At the same time, one document remains in the hands of the boss and is transferred to the personnel department, while the second is always issued to the subordinate. The document must be signed by the parties, as well as the seal of the organization.

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Conditions and procedure for conclusion

You can not sign an employment contract and work on your word of honor.

Anastasia Kornilova

But what it is and how to draw it up correctly, every self-respecting worker must know.

In this article, we will tell you why you need an employment contract, why you should not work without it, and what points it is important to pay attention to.

What will you learn

What is an employment contract and why is it needed

An employment contract is an agreement between an employer and an employee, according to which the employer provides the employee with work and pays a salary for it. In return, the employee undertakes to work efficiently and comply with the rules of the work schedule, work personally and not shift his duties to other people.

An employment contract is necessary so that there is stability and security in the relationship between the employee and the employer. The employer can be sure that while the contract is in effect, there will be someone working at his enterprise. Moreover, this person has the education, qualifications and skills that are needed for work. An employee can be sure that he will consistently receive the agreed salary, work and rest in accordance with the norms of the law, that tax deductions will be made for him, so that later, maybe someday, he will receive a pension, unemployment benefit or tax deduction .

The employment contract is usually not remembered until the employee regularly goes to work and receives a salary. An employment contract becomes relevant when trouble happens: sick leave, vacation or salary delays.

Employer and employee: who are they?

The parties to an employment contract are always the employer and the employee. The employer may be an individual, a legal entity or individual entrepreneur and the employee is only an individual.

The employer is an individual. A person who is not engaged in business and is not registered as an individual entrepreneur may enter into an employment contract with another person if he needs help with housework, child care or personal service.

For example, a paralyzed person needs an assistant to watch over them, prepare meals, clean the house, go to the grocery store and to the pharmacy for medicines. The writer may need a person who will write down the text for him from dictation. In such cases, two individuals can conclude an employment contract.

A worker can also be hired by an incompetent person - a minor or suffering from a mental disorder. If he has money to pay for the work of an employee, he can conclude an employment contract. But the guardian must sign the contract for him.

If the employer is a legal entity, the employment contract is signed by the director or the person he authorized to sign the contract. The director signs on the basis of the charter, other persons - on the basis of an order, order or power of attorney from the director. It is enough to indicate the details of this document in the employment contract. Otherwise, the contract may be terminated.

The age of the worker. A person can be hired from the age of 16. But there are places where only adults are taken, for example, if it is part-time work or work in a religious organization. To work associated with harmful or dangerous working conditions or with admission to civil and municipal service Persons under the age of 18 will also not be accepted.

If a person has received general education and is at least 15 years old, he/she may enter into an employment contract to perform light labor which is not harmful to his health. With the consent of the parents and guardianship and guardianship authorities, an employment contract can also be concluded with a 14-year-old. In this case, work should also be easy and not hazardous to health.

Even children under the age of 14 can work: on film sets, on the stage of a theater or in a circus, if there is the consent of a parent or guardian, as well as permission from the guardianship and guardianship authorities.

Indefinite and fixed-term employment contract

An employment contract may be concluded for an indefinite period or for a period not exceeding five years.

An open-ended contract better protects the interests of employees, so the law gives preference to it.

A fixed-term contract can be signed only in exceptional cases, for example: to perform strictly defined work, seasonal work, while undergoing alternative civilian service, or to replace a temporarily absent employee.

The Labor Code also allows to conclude fixed-term employment contracts with students and pensioners. And small enterprises (the staff is not more than 35 people for trade and not more than 20 for consumer services) can sign them with everyone. Unless, of course, the candidate agrees to find a job on their terms.

The duration of the fixed-term contract. By law, the maximum duration of a fixed-term employment contract is 5 years. The minimum period is not set, so theoretically it can even be one day. Usually the term depends on the reason for drawing up the contract.

For example, accountant Maria gave birth to a son and went on parental leave until she was 1.5 years old. An agreement will be concluded with Anna, who took her place, until the moment Mary returns.

Engineer Ivan Kotov gets a job on a gas pipe laying project, the term of his contract will coincide with the term of the project. If the pipe is going to be laid in 2 years, the contract will be valid for the same period.

For example, a pipe was laid for 2 years, but it was never completely laid. The project can be extended and the fixed-term contract of engineer Kotov too - for the duration of the project.

A fixed-term contract can turn into an indefinite one if, after its termination, the employee continues to work, and the employer does not mind. A fixed-term contract can also become open-ended by a court decision: if the contract has been extended several times or if the court decides that there were no grounds for signing a fixed-term contract in principle.

For example, in one case, the Judicial Collegium for Civil Cases of the Kamchatka Regional Court considered it unreasonable to conclude a fixed-term employment contract with a boiler operator. The company hired a man for the position of a machinist under a fixed-term contract, but the court found that there were no grounds for urgency. Moreover, after the termination of the contract with the plaintiff, the management took another person in his place. So, the work that he performed is permanent. Having considered the case, the board determined that the contract with the employee should be recognized as open-ended, the driver should be reinstated at work and compensated for forced absenteeism.

Some employers prefer fixed-term contracts, because it is easier to fire an employee for them: the term has ended - and you can part with the employee if he is no longer as fresh and diligent as in the first days of the employment relationship. No compensation needs to be paid. In the case of an indefinite contract, you will have to reduce the staff and compensate the employee for forced dismissal or come up with ways to terminate the contract.

What does an employment contract consist of: mandatory and additional conditions

The employment contract is divided into three parts: the preamble, the main part and the conclusion. In the preamble, they write the date and place of signing the contract, the full name of the employee, as well as the name or full name of the employer. For an entrepreneur, they also indicate TIN, and for a legal entity, a document on the basis of which a company representative signed an agreement.

Mandatory conditions of the employment contract: place of work, labor function, date of commencement of work, payment, working conditions, work and rest schedule, guarantees and compensations. If any of these conditions is missing, the contract will still be valid, but by law it must be supplemented with the missing information.

Features of drawing up a fixed-term employment contract

If the employment contract is concluded for a certain period, it must be prescribed for which one. In a fixed-term employment contract, it is also necessary to indicate the basis - because of which such an agreement is signed, and not an indefinite one. For example, you need to write that the contract with the watchman Viktor Petrovich is signed for 3 years, because he is a pensioner by age.

Place of work. The employee must know exactly where he will work. For example, the parent organization of the employer's company is located in Moscow, separate subdivision- in Syzran, and a branch - in Tambov. The employee must know that by the beginning of each working day he must come to the Moscow office.

labor function. This is a description of a specific position, for example: a locksmith of the fourth category, a lead legal adviser, or a deputy director. For some positions, professions and specialties, compensation and benefits are provided. In order for the employee to receive them, the position must be entered into the employment contract in the same form in which it is indicated in the qualification directory.

Some positions, professions or specialties give the right to early retirement. If you call them differently, then there will be problems with the pension fund. Suppose, instead of a feller who is entitled to an early old-age pension, some lumberjack will be entered in the work book. And there is no such profession in the lists.

In addition, employees of harmful professions are entitled to various additional payments. If you name a person in an employment contract incorrectly, the tax office may not allow payments to be taken into account in expenses.

Work start date. A person must start work on the day specified in the contract. Most often, the days of signing the contract and the start of work coincide, but sometimes these can be different dates. The employee and the employer can sign the contract on April 13, and indicate in the conditions that the start date of work will be June 15.

Salary. All the money that the employee must receive for his work must be indicated in the contract: salary, allowances, bonuses, incentives. Records any payments made to the employee by law or by local acts companies - the regulation on remuneration or the provision on bonuses. For example, that the bonus for the previous year is paid in May and is calculated according to a formula depending on the time worked and the nature of the projects.

If you do not want to prescribe such details in the contract, you must definitely make a reference to the provision on bonuses or other local act that regulates such payments.

Mode of work and rest. In law work week cannot be more than 40 hours. There are exceptions, for example: workers under 16 years of age must work no more than 24 hours a week, and disabled people of groups I or II - no more than 35 hours a week.

You can distribute these hours by day in different ways. Therefore, the contract prescribes when a person should work and when to rest, for example: work from Monday to Friday from 9 am to 6 pm from lunch break from one to two, and on Saturday and Sunday to rest.

Sometimes it is more convenient when work is built on a rotational basis, for example, for workers in the Far North. A shift work schedule is established, which describes how much employees work, how much they rest, how much they get to the place of shift. Shift workers do not work for the usual 8 hours a day, but for weeks or months, because the shift includes both time for rest between shifts and the way to work.

Sometimes employers write that the mode of work and rest is established by the internal labor regulations. This is normal, but on condition that the person was familiarized with the PWTR against signature before concluding an employment contract.

Guarantees and compensation for work with harmful and dangerous working conditions. All compensations that are provided for workers in difficult and unhealthy professions must be specified in the contract. For example, workers in the mining, metallurgy, or electric power industries are entitled to an additional seven days' paid leave.

Conditions that determine the nature of the work. If necessary, the contract indicates the nature of the work: on the road, traveling or mobile.

For example, a pizzeria can hire a courier to deliver pizza. The nature of his work is traveling, that is, the employee will perform his duties not in the place where the employer is located.

A large corporation can hire a lawyer who will constantly travel to branches and solve problems that arise on the ground. His employment contract will reflect that the nature of the work is traveling.

Working conditions in the workplace. By law, the employer must order an assessment of working conditions from a special organization. They are optimal, acceptable, harmful and dangerous. This information must be included in the contract. The class of working conditions affects the guarantees and compensations for workers in hazardous and hazardous production.

The condition on the mandatory social insurance of the employee. The employer must indicate in the employment contract that the employee has the right to compulsory social insurance in cases stipulated by federal laws.

Additional terms. The employer can enter additional conditions into the contract, for example: information on the probationary period, on non-disclosure of trade secrets, or on the conditions for additional insurance for the employee - the VHI policy. According to the law, additional terms of the employment contract should not worsen the position of the employee.

How to draw up an employment contract

An employment contract can only be concluded in writing. Two identical documents are drawn up, the parties keep a signed copy each.

It happens that an employee begins to work, and the employer is in no hurry to offer him a contract for signing. In this case, the contract is still considered concluded, because in fact the working relationship has begun. The employer is obliged not later than 3 days from the moment the employee started working for him to sign an agreement with him. But even if the contract is never formalized, legally it has already been concluded anyway. Such is the magic.

To draw up an employment contract, the employee must bring:

1. Passport or other identification document.
2. Labor book.
3. SNILS.
4. Military records.
5. Diploma.

Also for admission to certain positions, such as a judge or a member of the board of directors Central Bank Russian Federation must provide income information. There is a set list of such positions.

The employer has no right to demand additional documents from the employee. In Art. 65 of the Labor Code provides an exhaustive list, which cannot be expanded. And if a person gets a job for the first time, then the employer cannot demand a work book from him, but he himself must issue it to a new employee.

A copy of the employment contract. If the employee needs a copy of the contract, he can certify it with the employer or at the notary's office. The employer certifies the employment contract with the signature of the manager and the seal, if the company uses it in its activities, and the notary puts a certification inscription that confirms that the copy is correct.

Errors when concluding an employment contract

These errors will not invalidate the contract, but they can make life difficult for the employee and the employer.

There is no salary. The most common mistake is when the employer does not indicate a specific salary, but refers in the text of the contract to his internal document, for example, on the provision of wages. So that in the future there are no questions and discrepancies, you need to enter a specific amount in the employment contract.

No address. Another mistake is the absence of the name of the locality in the description of the place of work.

When an organization has several branches located in different cities, without a reference to the locality, it may not be clear where the employee should come to work. And the employer may be tempted to tell the employee that his workplace now in another city, if you want to get rid of a person and force him to write a statement of his own free will.

There is no information about working conditions. Working conditions at the workplace with a description of the characteristics are required. You can write in detail or limit yourself to the entry “Working conditions are acceptable in terms of the degree of harmfulness and danger ( 2nd class)”. But at least some characteristic must be entered.

No employee signature. The contract is drawn up in two copies and on the copy of the employer, the employee must sign the receipt of the contract. If there is no such signature, the company's management can be fined from 10 to 20 thousand rubles, individual entrepreneurs - from 5 to 10 thousand. Penalty for legal entities may amount to 100 thousand rubles.

There are no grounds for a fixed-term contract. In a fixed-term employment contract, it is often forgotten to indicate the grounds for its conclusion. Such a mistake can cost the employer up to 100 thousand rubles, and the employee will be allowed to recognize the contract as open-ended and receive all guarantees.

Contract jurisdiction. It happens that the employer includes in the employment contract a condition for the consideration of disputes on it in a particular court. But according to the law, the right to choose a court belongs to the employee - the employer cannot restrict him in this. Such a condition of the employment contract is void.

How to terminate an employment contract

The general grounds for terminating an employment contract are listed in Art. 77 of the labor code.

At the initiative of the worker. The employee may terminate the employment contract at his own request. To do this, it is enough to write an application and submit it to the employer no later than two weeks before the last working day.

In this case, the employer pays him a salary for all hours worked and compensation for unused vacation. All payments must be made on the day of dismissal.

For example, in some cases, in order not to dismiss an employee under the article for a disciplinary offense, the employer may meet him halfway and terminate the contract by agreement of the parties.

There are cases when an employer does not want to officially carry out a reduction in staff and offers employees who fall under the reduction to quit by agreement of the parties. If the employer honestly pays all due compensation, the employee may agree to this option.

Then on the day of dismissal, the employee is paid severance pay in the amount of the average monthly salary. If within two months after the layoff, the dismissed person does not find a job, he can turn to his former employer for another average monthly salary. If he stays unemployed for another month, he can again demand an average salary from the employer - if this person has a disability and other people are dependent on him or there are some other unfavorable conditions. But this is the last payment - nothing else can be received from the employer.

Therefore, if you are offered much less, you should not agree.

At the end of the term. A fixed-term employment contract is terminated after the period specified in it expires or the replaced employee returns to work.

Transfer to another place. The contract may be terminated if the employee decides to move to another employer, take an elective position or work for the same employer, but in a different location or structural unit.

Change of conditions. The employment contract can be terminated if the working conditions have changed. Any employee who does not like the new working conditions can take the initiative and terminate the contract. For example, if a person worked remotely, and now must come to the office every day. Or if his salary was reduced. Or in case of a change in work schedule: he worked 5 days a week with two days off, and now he will work 2 in 2 days.

If an employee has committed a disciplinary offense: skipped work or was late several times, he can be fired as a punishment. In this case, it will be difficult to get a good position later: dismissal under the article is a strong blow to reputation.

Refusal to move after the company. The grounds for termination of the contract may be the refusal of the employee to move to another locality or transfer to another position if he can no longer work at the same place due to health problems.

Circumstances beyond the control of the parties. The employment contract is terminated if the employee is deprived of the right to hold managerial positions, becomes disabled due to health problems or dies. Such grounds arise on their own, neither the employee nor the employer can influence them.

An unrecoverable error in the conclusion of the contract. If the errors that were made when signing the contract cannot be corrected, it ceases to be valid.

For example, for an offense committed in 2017, the court banned Korzhikov A.P. from holding leadership positions for 3 years. And in 2018, he got a job at Kovrizhka LLC CEO by hiding the court decision from the founders. This is an unremovable obstacle: the court decision has entered into force, and Korzhikov A.P. will be able to become a director only after 2020. Therefore, the contract will be terminated.

Disputes under the contract: where to go if rights are violated

When a dispute arises between an employee and an employer and they cannot agree peacefully, the disputed situation is examined by a commission on labor disputes or court.

In some cases, a person may apply for protection of violated rights to the labor inspectorate - for example, if they do not pay wages or do not give leave.

Commission on labor disputes. It is convened at the initiative of the employee or employer. It includes an equal number of representatives of the parties. Not all companies have such a commission, and at the first request of an employee who has a claim, it will not be convened. Therefore, most often employees immediately go to court to protect their rights.

As a general rule, a claim is brought to the court at the place of residence of the defendant, if the defendant is an individual entrepreneur or an individual, or at the location of the organization, if the defendant is a legal entity. If the employee works in a branch or representative office of the company, he can choose the court at the location of his workplace.

When a claim concerns a contract, it can also be filed with the court at the place of performance of the contract. For example, an employment contract may be signed in Moscow, but it says that the employee will perform his duties in Tver. If a dispute arises between the parties under such an agreement, it can be considered both in Moscow and in Tver.

How else can you arrange an employment relationship

The employment contract is not the only way formalize the relationship associated with the performance of work.

The difference between a civil law contract and a labor contract. Sometimes an employer needs to get a one-time service or job. In this case, he can conclude with a person not labor, but civil contract: a contract for the performance of services, a contract for work or work.

The difference between a civil law and an employment contract is in the subject matter, rights and obligations of the parties. Under an employment contract, the employer hires a person who must do this and that and receive a salary for this, as well as sick leave and vacation pay.

The civil law contract defines specific task, which a person must do in a certain time for a reward. And vacation pay with sick leave is not allowed to the performer. So the employment contract imposes on the employer more obligations and responsibilities to the person hired.

The contract and its difference from the employment contract. The contract is signed with people entering the civil service to government agencies. There is no concept of “contract” in the labor code; it was removed in 2002.

On the basis of the contract, a person is given the opportunity to fill a position for public service, for example, as an employee of the Administration of the President of the Russian Federation or a judge of the Moscow District.

For service, instead of a salary, they pay a monetary allowance and provide state social guarantees. A person entering the civil service is obliged to perform duties in accordance with official regulations and comply with the official regulations of a particular state structure.

The difference between a patent for work and an employment contract. A work patent confirms the right of a foreigner who does not need a visa to enter Russia to temporary employment in the Russian Federation.

That is, a patent is a document on the basis of which some foreigners get the opportunity to conclude an employment contract. It is required, for example, by citizens of Abkhazia, Azerbaijan, Uzbekistan and Ukraine. Citizens of Belarus, Kazakhstan, Armenia and Kyrgyzstan do not need a patent, because these countries are members of the Eurasian Economic Union.

A patent is issued for a period of 1 to 12 months. It can be extended for a period of not less than a month, but the total duration of the patent, taking into account extensions, cannot be more than a year from the date of issue.

A foreigner can get a job only in the subject of the Russian Federation, which is inscribed in his patent. That is, a foreigner cannot work in Moscow and the Moscow region on the same patent, because these are two different entities.

When a foreign citizen enters into an employment contract, mandatory conditions all information about the patent is entered. An employer can sign an employment contract with a foreigner only for those jobs that the regional authorities allowed when granting a patent to a foreigner, for example: a car driver, a road worker, an asphalt concrete worker, a bricklayer, etc.

Remember

1. If you are applying for a job, be sure to sign an employment contract.
2. Check that it indicates the place of work with a specific locality, the amount of salary, the duration of the contract, labor obligations, date of commencement of work, working conditions and mode of work and rest.
3. The employment contract is drawn up only in writing, one copy must be left with you.
4. You can terminate the contract at will, by agreement of the parties, or transfer to another employer.
5. In case of disputes, you need to apply to the labor inspectorate, the commission on labor disputes or to the court.
6. In addition to the employment contract, there is a contract and a patent. The contract is for civil servants, and the patent is for foreigners.
7. If you are hired to perform one-time work, you can conclude a fixed-term employment contract or a civil law contract - a contract or the provision of services.

In accordance with Art. 67 of the Labor Code of the Russian Federation, the employer must draw up an employment contract in writing within 3 working days from the day when he actually allowed the employee to work. The contract is drawn up in two copies, one of which must be given to the employee. For failure to comply with this obligation, the employer may be held administratively liable (part 4 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

If the employee is actually allowed to work without drawing up an employment contract, then the test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work (Article 70 of the Labor Code of the Russian Federation).

In the event that the employee started work without drawing up an employment contract, and the employer refuses to draw up this contract, there are several options for resolving this situation.

1. The employee can and should insist that the employer draw up an employment contract. The employer must be informed (in writing or orally) about his obligation to draw up an employment contract when actual admission to work with reference to Art. 67 of the Labor Code of the Russian Federation, clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. It is necessary to demand that you familiarize yourself with the order for employment and make an entry about employment in the work book (Articles 66, 68 of the Labor Code of the Russian Federation).

2. The employee needs to collect evidence of the existence of an employment relationship for the subsequent protection of rights in the labor inspectorate or in court.

To recognize the existence of an employment relationship in the absence of a written employment contract, it is necessary to prove the fact of the work itself, as well as the fact of admission to it by the employer or his authorized representative (determination of the Supreme Court of 01.24.2014 No. 18-KG13-145). Characteristic features labor relations are, in particular: the personal performance of work in a certain specialty, indicating qualifications or positions, compliance with the rules of the internal labor regulations, receiving a salary, the availability of incentives, disciplinary actions, holidays, sick leave (Articles 15, 56 of the Labor Code of the Russian Federation).

An employee can submit an application to the employer by requesting work-related documents. For example, a certificate on the amount of salary, on accrued and actually paid insurance premiums, on the period of work in the organization, and other documents. In the application, you can indicate any reasons why these documents were required, for example, to apply for a loan at a bank.

The employer is obliged, no later than three working days from the date of application, to issue certificates and copies of documents, duly certifying them (Article 62 of the Labor Code of the Russian Federation). If the employer fulfills its obligations, then the employee will have evidence of actual employment in the organization.

Other evidence of employment can be audio and video materials that confirm the relevant facts. It is also desirable to find people who could testify in favor of the employee in court, for example, colleagues or clients of the company (Article 55 of the Code of Civil Procedure of the Russian Federation).

You can collect any documents that can confirm that the employee is in an employment relationship (orders, written assignments, copies of work reports). Evidence may also be the presence of a pass to the organization, uniform, access to corporate e-mail etc.

The employee may, at his discretion, protect his labor rights and freedom for all legal means, including through the state labor inspectorate or in court (Article 352 of the Labor Code of the Russian Federation).

If it is proved that the employee was allowed to work, then even in the absence of an employment contract with a fixed wage, the burden of proving in court the amount of wages and the absence of wage arrears to the employee lies with the employer.

Prosecutor of the city of Sosnovy Bor

Senior Counselor of Justice V.V. Kovalev