The Labor Code aims to streamline the relationship between labor parties, therefore the positions enshrined in it have legal consequences. This also applies to the grounds for the emergence of these relationships, one of which is the actual admission to work.
Let's analyze how this can manifest itself in practice, what it brings to the employee and employers, and what it can be fraught with in case of dishonest performance of one's legal duties.
What does "permitted to work after the fact" mean?
The law requires the employer to properly formalize the relationship arising with the employee, that is, to sign labor contract. Not all employers are scrupulous in legislative requirements: many prefer to use the labor of employees without burdening themselves with written obligations. In such cases, the work agreement is concluded verbally and the employee, on behalf of the head or his representative, begins to perform the work entrusted to him. This means that he actually admitted to it.
IMPORTANT! From point of view Labor Code such a formalization of labor relations is improper.
Getting to work without drawing up a document on mutual obligations, the employee does not get acquainted and does not sign a number of other mandatory documentation:
- inner order rules;
- employment order;
- collective agreement;
- job description;
- safety requirements, etc.
An employee who does not know his rights may think that the other party has complete power over his working hours, wages and working conditions. The Labor Code of the Russian Federation protects more than weak side labor relations and legally equates the actual admission to work to the full conclusion of an employment contract, even if it is not properly executed.
Lines from the Labor Code of the Russian Federation
The equalization of the rights of actual admission to work and an employment contract was still in effect in Soviet labor legislation (Article 18 of the Labor Code of the RSFSR). In the Labor Code of the Russian Federation legal regulation this problem is significantly expanded:
- in Art. 16 states that the proper and timely execution of an employment contract does not matter: if an employee has started work, then he has entered into labor Relations with all legal implications;
- Art. 20 defines an employee as an individual who has entered into an employment relationship with another party;
- Art. 61 clarifies the moment the employment relationship enters into force - this is the day the employment contract was signed or the actual admission to work, which was authorized by the representative of the employer or simply knew about it;
- Art. 67 requires the employer to duly execute a written employment contract with the employee who has started work within three days, and gives the employee the opportunity to reasonably demand this;
- Art. 91 indicates the conditions of remuneration, in particular, that labor remuneration is accrued from the first day of work, that is, the actual admission to it.
Employment contract = actual admission
The legal equality of these two ways of starting an employment relationship lies in their legal consequences. It is considered that the employee who has started work has already concluded an employment contract orally, and its written execution cannot be delayed for a period exceeding three working days.
Will an employment contract drawn up with such a delay somehow differ from a standard one? Differences:
- Date difference. The contract is not signed "retroactively", therefore, it will contain a later date than the one when the employee actually started work (the day the work began is indicated separately in the text of the contract).
- Entry into force. This contract will come into force from the day of admission to work, and not the moment of conclusion, as is the case in the usual manner.
Thus, the actual admission to work is not an exemption from the execution of an employment contract, but only a slight delay, a permissible exception to general rule employment, when the contract is first signed, and then the employee starts working.
How is the actual work permit issued?
The law does not provide a regulation according to which the employer establishes the right of the employee to start work on his behalf and with his knowledge. This order can be written in the internal regulations organizations. It could be:
- oral agreement;
- writing an application for admission to work by an employee;
- order or order for admission;
- service (report) note, fixing the fact of the start of work at a new workplace.
It is of fundamental importance that only a representative of the employer endowed with these powers can allow work. These powers must be specified in local acts or founding documents organizations.
NOTE! In practice, workers, starting work, cannot check whether the person who allowed them has such authority. Therefore, a rule has been adopted according to which such doubts are interpreted in the courts in favor of the employee, unless the employer proves that he purposefully familiarized the applicant with the powers or their absence.
Evidence of actual admission to work
If the employer did not record the moment of admission of a new employee, how can this be proved if it is necessary to protect one's rights?
First, after three days, a written document on labor relations should be required. If the employer does not do this, he falls under administrative responsibility.
Evidence of an employment relationship in court can serve:
- access to the territory of the organization;
- providing an employee with a workplace;
- acts on the receipt by him of stationery, materials, overalls, etc.;
- document on passing a medical examination;
- surname of the employee in plans, programs, lists, etc.;
- audio or video recordings where the representative of the employer gives instructions to the employee, and the employee performs the work;
- testimony of witnesses;
- agreement about liability(sometimes it is “bypassing” the labor, where there is interaction with certain values);
- other evidence.
Actual admission and probationary period
Can we talk about entrance examinations if you need to start working so urgently that it is not possible to pre-register an employment contract, where all the conditions of the probationary period are usually prescribed? Usually not. actual tolerance to work, as if by default, fixes the suitability for it of the employee accepted in this way.
However, by agreement of the parties, entrance examinations can be completed before the conclusion of an employment contract. To do this, you will have to spend time and effort on signing a separate agreement on this issue, as required by Part 2 of Art. 70 of the Labor Code of the Russian Federation. Only in this case it can be transferred to the employment contract. It must be issued in 2 copies - for each party.
If such an agreement has not been drawn up, the employer has no right to establish probation at the subsequent execution of the employment contract.
Consequences of admission to work after the fact
If in statutory a three-day period, the employer has properly formalized the labor relations that have arisen, no additional legal consequences arise. Just appeared in his state new employee, another staff member. Consequences occur if the rights of the employee are violated by improper performance of the duties of the employer:
- If the admission to work was obtained from a person who did not have such authority, and the employer refuses to hire in due course, he is obliged to pay the failed employee remuneration for the work performed in proportion to the time actually worked. A guilty employee who has exceeded his authority is subject to disciplinary liability. If, as a result of this admission, there was real damage, it will be recovered from the employee, but financial responsibility will also fall on the unauthorized representative (Article 39 of the Labor Code of the Russian Federation).
- If the employer has not drawn up a written employment contract within the three-day period established by law, the employee has the right to demand this. If the employer refuses, you can seek rights through the court or the labor inspectorate. For violation of the law, the employer faces a serious fine, the amount of which may vary, depending on the type of violation:
- evasion of registration;
- untimely registration;
- improper design;
- replacement of an employment contract with a civil law one.
- The employee's signature is missing from the employment contract. Such an agreement is considered improperly drawn up, for which the employer is responsible. This does not exempt him from labor relations, which are still considered concluded upon admission to work.
ST 67.1 of the Labor Code of the Russian Federation.
If an individual was actually admitted to work by an employee not authorized by the employer, and the employer or his authorized representative refuses to recognize the relationship that has arisen between the person actually admitted to work and this employer, labor relations (to conclude with a person actually admitted to work to work, employment contract), the employer, in whose interests the work was performed, is obliged to pay such an individual for the time actually worked by him (work performed).
An employee who has actually been admitted to work without being authorized by the employer is held liable, including material liability, in the manner prescribed by this Code and other federal laws.
Commentary on ST 67.1 of the Labor Code of the Russian Federation
1. The commented article establishes the legal consequences that may occur for both the employer and employees in the event that a person was actually admitted to work by an unauthorized employee and the employer or his authorized representative refuses to recognize the relations that have arisen as labor relations and conclude with this person an employment contract.
It should be borne in mind that an authorized representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, the constituent documents of a legal entity (organization) or local regulations or by virtue of an employment contract concluded with this person, is empowered to hire employees, because in this case, when the employee is actually admitted to work with the knowledge or on behalf of such a person, labor relations arise (Article 16 of the Labor Code of the Russian Federation) and the employer may be required to draw up an employment contract with this employee in a proper way (clause 12 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).
2. On the employer, in whose interests the work was performed by a person actually admitted to work, part 1 of the commented article imposes the obligation to pay this person for the time actually worked by him or the work performed. Imposing such a duty on the employer, the law does not determine the amount of payment for the work performed. Obviously, the amount of payment for the work performed in this case can be determined either on the basis of the rates established in the organization for this type of work, or by agreement of the parties.
3. In accordance with part 2 of the commented article, an employee who actually allowed a person to work, without being authorized by the employer, is held liable, incl. material, in the manner prescribed by the Labor Code and other federal laws.
In accordance with the Labor Code, for the specified offense, the employee can be brought, first of all, to disciplinary responsibility, but only if the conditions for disciplinary liability provided for by the Labor Code are present (see comments to Articles 192, 193).
As for material liability, it can only occur if there is actual (real) material damage. In this regard, in order to bring to liability an employee who unlawfully hired, the employer must prove that this unlawful action caused the employer a real material damage and at the same time, there were no circumstances excluding the material liability of the employee (see comments to Articles 233, 238, 239).
People very often face the actual admission to work (actual admission), which is an improper registration of labor relations. That is, people get a job without concluding an employment contract, with the knowledge or on behalf of the employer. In other words, a person performs the work that he was assigned, entrusted. However, in legal terms these relations are not fixed in any way, neither the employment contract, nor the order for employment, the employee was not acquainted with internal documents, which include the rules of internal work schedule, collective agreement, etc.
In this case, the person begins to think about what will happen if, after some time, they say goodbye to me and do not even pay? Or will they say that I did not pass the test? Many issues are resolved by the Labor Code, according to which an employment contract that is not executed in writing, is considered concluded if the employee started work with the knowledge or on behalf of the employer or his representative. That is, there is an actual admission to work (actual admission).
Here it must be borne in mind that the actual admission (actual admission to work) must be carried out directly by the employer or his representative. The representative must have the appropriate authority to hire workers. These powers must be enshrined in constituent documents or local regulations (for example, orders). Only in this case can the employer be obliged to conclude an employment contract with you in the proper form.
However, a problem arises when an employee, starting work on behalf of the representative of the employer or with his knowledge, as a rule, does not know about the powers of the official who is hiring. Therefore, it is desirable that, when considering such cases, the courts are on the side of the employee, unless representatives of the employer prove that the employee knew about the actual powers of the person hiring him.
It is also necessary to remember that the employment contract, upon actual admission to work, must be drawn up within three days. If the employer violates this rule, then he may be held administratively liable.
If the employer refuses to formalize the employment in accordance with the Labor Code of the Russian Federation, the employee has the right to apply to the court with a claim for the conclusion of an employment contract. You can also contact us first, tell us the whole situation, and we will tell you how best to proceed.
For workers who work on the basis of actual admission (actual admission to work), I can say the following: pay attention to the documents that you sign. In court, if the employer is not very decent, you will have to prove the existence of an employment relationship. And this can help:
- an agreement on liability (there were cases when there was no employment contract, but there were this agreement and the courts recognized the existence of an employment relationship)
- audio recordings of conversations with the employer, from which it is clear that you are given instructions, you are doing certain work.
- witnesses (your friends can come to your place of work and take a photo in front of the company logo).
- other evidence.
Unfortunately, very often people quit their previous job, "having previously agreed" that after the dismissal they would immediately be hired. However, there are cases when an employment contract for new job is not issued and there is an actual admission. And moreover, later the employer offers an employment contract on conditions other than those previously agreed upon. And the comical situation is also in the fact that it is almost impossible to prove that an employment contract should be concluded with you on other conditions. It turns out a situation when a person quit his previous job in the hope of the best, but did not wait for the best, or rather hurried. To avoid such situations, I recommend concluding employment contracts indicating the date from which you plan to start work (for example, in a month or two). During this time, you will have time to terminate the employment relationship at the previous place of work and with peace of mind go to a new place of work, where you will be expected with the salary that you agreed on.
Full text of Art. 67.1 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under Article 67.1 of the Labor Code of the Russian Federation.
If an individual was actually admitted to work by an employee not authorized by the employer, and the employer or his authorized representative refuses to recognize the relationship that has arisen between the person actually admitted to work and this employer, labor relations (to conclude with a person actually admitted to work to work, employment contract), the employer, in whose interests the work was performed, is obliged to pay such an individual for the time actually worked by him (work performed).
An employee who has actually been admitted to work without being authorized by the employer is held liable, including material liability, in the manner prescribed by this Code and other federal laws.
(The article is additionally included from January 1, 2014 federal law dated December 28, 2013 N 421-FZ)
Commentary on Article 67.1 of the Labor Code of the Russian Federation
The commented article establishes the consequences of the actual admission to work by an unauthorized person, which are aimed at protecting the rights of the employee who performed the work, as well as bringing to justice an unscrupulous employee who carried out the actual admission to work without being authorized by the employer.
It should be noted that part 1 of the commented article provides for the onset of the corresponding consequences, subject to a number of conditions:
- an individual was actually admitted to work by an employee not authorized by the employer;
- the employer or his authorized representative refuses to recognize the relations that have arisen between the person actually admitted to work and this employer as labor relations (to conclude an employment contract with the person actually admitted to work).
In the event of the occurrence of the described situation, the employer, in whose interests the work was performed, is obliged to pay such an individual for the time actually worked by him (work performed).
A person who has been admitted to work without appropriate authority may be held administratively liable. In accordance with Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, the actual admission to work by a person not authorized by the employer, if the employer or his authorized representative refuses to recognize the relationship that has arisen between the person actually admitted to work and this employer, labor relations (does not conclude with the person actually admitted to work, an employment contract), entails the imposition of an administrative fine on citizens in the amount of three thousand to five thousand rubles; on officials - from ten thousand to twenty thousand roubles.
In addition, Art. 233 of the Labor Code of the Russian Federation establishes that the material liability of a party to an employment contract occurs for damage caused by it to the other party to this contract as a result of its guilty unlawful behavior (action or inaction). Thus, in relation to the provisions of the commented article, an employee who has actually been admitted to work, without being authorized by the employer, is a party that has caused damage to the employer in the amount (in the general case) of the remuneration of the person actually admitted to work.
Another commentary on Art. 67.1 of the Labor Code of the Russian Federation
1. On the concept of "a representative authorized by the employer" see Art. Art. 16, 57, 67 of the Labor Code and comments to them.
2. The commented article establishes the legal consequences of the actual admission to work by an unauthorized person, which occurs both for those who have started work in the order of actual admission individual, and for an employee who unreasonably carried out an admission to work.
3. The actual admission to work is a volitional act of two parties - a person entering work as an employee, and an employer acting personally or through his authorized representative.
The only circumstance discrediting the this case the actual admission to work, as a right-establishing legal fact, is that this admission was carried out by an improper subject, i.e. the employment contract does not contain the will of the party that is the employer, and therefore there is no employment contract itself. The elimination of this defect is sufficient for the actual admission to work to be the basis for the emergence of an employment relationship.
4. Since the employee who has actually been admitted to work does not have the authority to hire employees, his actions by themselves cannot serve as a basis for the emergence of an employment relationship with an individual admitted to work, and, accordingly, do not give rise to the obligation of the employer to draw up an agreement with this person in writing. However, if these actions are approved by the employer or his authorized representative, the employment relationship should be considered as having arisen from the moment the natural person admitted to work actually began work. Approval can be carried out by means of a written execution of an employment contract with this person.
5. Evidence of the intention of an individual unjustifiably admitted to work to enter into an employment relationship is his actions after admission, carried out as an employee (performing a quantitatively and qualitatively determined measure of labor, compliance with internal labor regulations, etc.), or readiness to implementation of such actions this person in accordance with the current internal labor regulations, he regularly comes to the assigned workplace in anticipation of instructions from the employer to perform specific work).
6. In the event of an unjustified admission to work, labor relations with a person admitted to work do not arise, however, the employer is obliged to pay this person for the time actually worked by him (work performed). The amount of remuneration for hours worked (work performed) may be determined in relation to the conditions of remuneration established by the relevant labor function(positions). If a person unjustifiably admitted to work did not perform any real labor activity, but at the same time, in accordance with the internal labor regulations, was at the place determined for him upon admission as a workplace, this time is paid according to the rules established for payment of downtime for reasons beyond the control of the employer and employee (see Art. 157 TK and commentary to it).
7. The actions of an employee who has made the actual admission to work, without being authorized by the employer, are guilty and unlawful in nature and, therefore, can be qualified as a disciplinary offense, which is the basis for bringing this employee to disciplinary responsibility (see Art. Art. 192, 193 of the Labor Code and comments to them). In the event that, as a result of an unjustified admission to work, the employer has suffered direct actual damage, the guilty employee may be held liable (see Chapter 39 of the Labor Code and commentary thereto).
Consultations and comments of lawyers on Article 67.1 of the Labor Code of the Russian Federation
If you still have questions about Article 67.1 of the Labor Code of the Russian Federation and you want to be sure that the information provided is up to date, you can consult the lawyers of our website.
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In practice, the employer does not always act correctly in accordance with the requirements labor law and is in no hurry to legally formalize relations with the employee and sign an employment contract with him. Perhaps, believing that the actual admission to work cannot be legitimized and documented. However, if the employee can prove the fact that he was actually allowed to work, then the employer will not only be held accountable, but also obliged to restore the violated rights of the employee.
Registration of the actual permit to work
The person with whom an employment contract was concluded and the person who was actually admitted to work are equal in labor rights.
This equality is expressed in the fact that, despite the absence of a written employment contract, the employee actually admitted by the employer to work has such an employment contract without complying with the requirement for its written form. In this case, the employer is obliged to draw up an employment contract with the employee in writing after the actual admission to work. And he must do this no later than three working days.
The differences between such an agreement and an agreement concluded in in due course, will be:
- the date of conclusion of the contract by the parties, which will be later than the date of commencement of work;
- a special procedure for the entry into force of the contract - from the day the employee is actually admitted to work (and not from the moment it is signed by the parties).
These conclusions follow from the provisions of part 1 of article 61, part 2 of article 67 of the Labor Code of the Russian Federation.
It should be noted that the Labor Code of the Russian Federation no longer regulates the procedure for obtaining an actual admission to work. Therefore, the employer can describe the further procedure for registration in an order or other internal local act, or issue an actual admission through the employee’s application and a memo identifying the fact of the employee’s actual admission to work.
Regardless of the method of registration of the actual admission to work, the result should be an employment contract signed with the employee, one copy of which is handed over to the employee against signature, and the second must be kept by the employer.
If the registration procedure described above is not followed and the employment contract was not concluded in writing after a three-day period, then the employer risks being held administratively liable under Part 4 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, in the form of an administrative fine for legal entities in the amount of 50,000 to 100,000 rubles; officials in the amount of 10,000 to 20,000 rubles; on the individual entrepreneurs in the amount of 5,000 to 10,000 rubles.
Start date
When drawing up an employment contract, it is necessary to fix the date of commencement of work. FROM specified date the employee is obliged to start performing labor duties (part 2 of article 57 of the Labor Code of the Russian Federation).
If the contract does not contain such a date, then general rule the employee must begin to fulfill his duties the very next day after the conclusion of the employment contract and its entry into force.
With the actual admission to work, the start date of work comes earlier than the employment contract is drawn up between the employee and the employer. This means that the employment contract is drawn up in accordance with the current date, and the date of the actual start of work by the employee (i.e., an earlier date) is indicated in the clause of the contract on the start date of work.