Complaint to the labor inspectorate about unofficial employment

Due to the increasing number of questions asked to our lawyers about what to do if the employer does not formalize it, it becomes relevant. Labor relations have changed significantly.

There are contracts of a civil nature, temporary or seasonal work, as well as temporary employment. Despite their relevance, for employers in particular, the legislator has provided for a number of situations in which the employer is obliged to hire an employee.

Where to go to protect your labor rights?

In such situations, the legislator prescribes several ways or lines of protecting the rights of an employee whom the employer does not officially register.

On this issue, you can apply for protection of rights:

• To the prosecutor's office;
• Territorial Department of Labor Inspectorate;
• To a court of general jurisdiction.

Naturally, the fact of performing work that is systematic and provides for regular fixed payment must be documented. Otherwise, the statement will be unfounded, and the fact itself may not be confirmed. So, let's consider what to do in such a situation and why it arises in principle.

On maternity leave

We have already talked in detail about how to write a resume after maternity leave. In short, there is nothing complicated here:

• Indicate the timing of maternity leave to account for breaks in your seniority. This way, the employer will not have questions about why you were not officially employed during this period.
• If you did part-time work during maternity leave, great, this will only add advantages to you. If not, it’s okay - recording “maternity leave” is quite enough for a recruiter.
• Focus on acquired skills. If you took online courses, webinars, or professional development trainings during maternity leave, please include them in your resume and cover letter.
• If during maternity leave you did not work in your specialty, it is better to concentrate on past achievements. In personal qualities, indicate communication skills, hard work, and adaptability. This will make it clear to the employer that you are active and ready to quickly get into the work rhythm after maternity leave.

Reasons why an employer does not formally register an employee

If there is a situation, then there are reasons why the employer benefits the employer, and as a fact, it does not benefit the employee.

The employer has several such reasons:

• Saving on taxes - the company does not pay taxes for unregistered employees;
• There is also no need to make payments to the Pension Fund and the Social Insurance Fund;
• Such employees are not granted vacations and are not paid vacation pay;
• At the same time, such an employee is deprived of a number of legal labor guarantees upon dismissal or layoff;
• There are often cases when a pregnant woman is deliberately not registered.

The advantages listed above are disadvantages for an unofficial employee.

At the same time, an unofficial employee also carries certain risks for the employer:

• He cannot be held accountable under the rule of law;
• Injury at work by such an employee may result in penalties and compensation for damages;
• It will also be difficult to recover from such an employee the damage he caused to the company’s property.

In addition, this fact is a violation of labor legislation, entailing punishment in the form of a fine. The following is a description of what to do and which article of labor legislation is violated by the employer.

Legal format of informal employment

The law provides for the format of labor relations or employment contracts that are temporary or intended for part-time work.

The category of employment contracts that give the employer the opportunity to hire an employee, but not formalize him, includes the following types:

• Contracts of a civil law nature - such an agreement does not provide for sick leave, vacation, maternity payments and compensation for the employee, and the company itself does not pay payments to health insurance funds. At the same time, payments are made to tax and pension contributions. If an employee has a work book, then the employer does not make an entry in it, and the fact of length of service can be confirmed upon retirement only by an extract from the personal account in the Pension Fund. For the employee, such an agreement is unprofitable, since the employer can terminate it at any time without explaining the reasons or paying compensation. A loan for such employment may also be denied.
• Fixed-term employment contracts - the practice of concluding them is also common when a fixed-term contract is concluded with an employee for a month or three, and then extended.
• The employer invites the employee to register himself as an individual entrepreneur.

It follows from the norms of the law that the conclusion of GPC contracts, fixed-term contracts and for seasonal work is not prohibited.

IMPORTANT !!! But, in a number of situations, the legislator obliges the employer to officially place such an employee on staff. In addition, from the norms of labor legislation, namely, from Article 67 of the Labor Code, it follows that the employer is obliged to officially accept workers.

Pros and cons of the situation

Naturally, both employees and employers derive considerable benefits from the existing action plan. It often happens that the employee himself is satisfied with working not under a contract, without an entry in the work book. Very often this is the sin of people doing work without a specific education. Those who are mired in loans and do not want to pay them off from their hard-earned funds are prone to such actions. This option is also relevant for people who pay alimony and do not want to give up part of their earnings to provide for their children.

Of course, nowadays you can easily take out a loan with informal employment, but the amount for it will be much less. This also needs to be remembered, because no bank will take risks if it is not sure that its funds will be returned with interest.

A salary in an envelope does not always lead to success

However, there are cases when it is more than beneficial for both the employee and the employer to cooperate informally. A striking example is networking. In fact, it will be impossible to prove the provision of services to a certain party or the receipt of funds from it. There are certain risks in this area, since the employee and the employer do not meet in reality.

On the other hand, this approach will be ideal for many people who do not have the opportunity to work even part-time in other organizations. This includes pensioners, students, mothers on maternity leave, disabled people, people who do not have the right to conduct parallel activities in two or more organizations.

Before starting work, you need to make sure that payment for the activities carried out will be provided in full, just as the services promised by the contractor will be provided in full.

From the norms of the labor law

So, after an employee is allowed to work, within three days the employer is obliged to hire him on staff and place him officially. It is this norm that is often ignored by employers. In fact, from the first day of work, the employee is considered employed.

When asked by the employee about the reason for not registering employment, the latter appeals by saying that the employee was hired for a probationary period of 3 months. In such a situation, the employee risks not receiving a salary, as well as losing his job altogether.

Internships must also have official confirmation.

As for the probationary period, it can be included in the employment contract. It is noteworthy that enterprises operating under the law do exactly this, setting the test period at 3 months.

Also, the law allows the employer to establish the urgency of the employment relationship by concluding fixed-term and open-ended contracts.

IMPORTANT !!! Thus, if the employer intends to check the qualifications of an employee and his work abilities, he has the right to enter into a fixed-term contract for a probationary period, as well as dismiss the employee during the probationary period.

In other words, the fact that an employment relationship has not been formalized or the process is delayed is a reason to doubt the employer’s honesty and his intentions to hire an employee.

Also returning to the content of Article 67 of the labor legislation, it is advisable to note that the admission of an employee to perform work is already a fact of concluding an employment contract. The employee’s task is to prove this point, and also to know where to complain.

Is it allowed to work without an employment agreement?

The legislation of the Russian Federation does not contain the concept of unofficial work, but in practice, employment without formalizing labor relations with employees occurs quite often.
Despite the fact that this phenomenon is widespread, it largely negatively affects the legal status of employees, effectively depriving them of labor rights and guarantees.

Unofficial work has pros and cons, which we will discuss later.

As I already said, informal employment can entail a lot of negative consequences for the employee:

1. First of all, the employer may not pay for maternity or sick leave; you may also be left without bonuses, various allowances and additional payments.
2. In addition, the employer may well not pay you for overtime, delay your salary, or even leave you without any money earned.
3. Your salary and length of service in such a job will not be taken into account when calculating your pension.
4. If you are injured at work, your employer may leave you without financial compensation.

The positive aspects include the following:

1. You save on taxes.
2. You will not be deducted for alimony payments.
3. You are not legally responsible for your actions.
4. Perhaps your unofficial salary is higher than the salary in an official position.

As we see, there are more disadvantages to informal employment than advantages, so each of you must weigh the pros and cons and think about the possible consequences.

The employer is obliged to conclude an employment contract with the employee, as well as to perform all the actions that are provided for by the Labor Code of the Russian Federation when hiring an employee; failure to comply with them threatens the employer with punishment established by law.

Thus, for violating the legislation on labor and its protection (Article 5.27 of the Code of Administrative Offenses of the Russian Federation), the employer may be subject to an administrative penalty or his activities may be suspended for a certain period.

Also, an employer who does not fulfill the duties of a tax agent faces criminal liability under Art. 199.1 of the Criminal Code of the Russian Federation. The sanction of this article, in addition to a large fine, also provides for imprisonment for up to two years.

Currently, many banks are loyal to officially unemployed persons or people who work under an employment contract, but have a small official salary compared to unofficial payments.

For these categories of persons who cannot submit a personal income tax certificate 2, there are various loan programs, and as a rule, borrowers are issued small loans with a higher loan rate.

The client’s solvency can be evidenced by the presence of real estate, vehicles, statements of available amounts of money in bank accounts, and a positive credit history. By checking such information, the bank reduces the risk of loan non-repayment.

Many informal workers are faced with the fact that the employer refuses to pay the employee a salary for the work done.

What can you do if you find yourself in this situation?

Article 67 of the Labor Code of the Russian Federation states that an unformed contract is considered concluded if the employee, with the knowledge of the employer, begins to perform the work assigned to him.

You can protect your rights by filing a corresponding complaint with the labor inspectorate or the prosecutor's office. Get ready for the fact that since there was no employment contract between you and the employer, first of all you will need to prove the fact of working in this organization.

Upon receiving a complaint that the employment relationship with you has not been formalized and wages have not been paid, inspections will be carried out, as a result of which the employer may be subject to liability established by law. You also have the right to recover wages from your employer by going to court.

When disputes arise with an employer, the question often arises of how to prove the fact that you worked unofficially.

Typically, this need arises when sending a complaint to the prosecutor's office, labor inspectorate or an application to the court. As I noted above, it is worth using witness testimony. Witnesses can be both clients of the organization and people working with you.

In addition, evidence will include working documents on which your signature is or which you wrote with your own hand, copies of various contracts, acts or invoices, as well as printouts of telephone calls to officials of the organization.

Published by: Vadim Kalyuzhny, specialist of the TopYurist.RU portal

Attention: This may eliminate problems at the new location after inspection by inspectors. Some employers think that the absence of a piece of paper with text or the absence of a signature on it relieves them of responsibility. There seems to be no documentary evidence of hiring?! How wrong they are. In the same article.

67 we find a provision that if a person began his duties by decision of management (company representative) or informed the employer about the start of his work, then official employment actually occurred. What to do if you haven’t been paid your salary when you worked unofficially Where else to complain In addition to a tax employee who is not paid a black or gray salary, it makes sense to write a complaint to the prosecutor’s office.

The employees of this body will not help you recover money, but the inspection materials may turn out to be evidence in court. In addition, the very fact of contacting the prosecutor’s office may force the employer to pay the missing amount. This, however, is more related to psychological pressure - but, however, the method quite often works.

• The director cannot sign the contract because he is sick, on vacation, etc.
• Rewrite the application submitted 3 days ago without errors, but put the date today.
• Today it’s impossible to get it done, since the accounting department is very busy (filing reports, auditing, etc.).
• Work for a week on the test. Assess your capabilities, understand whether you like it with us, we will look at you, and then we will arrange for you as it should be.

Often, employees themselves give a free hand to dishonest employers. Some naively believe the promises, others ignore negative reviews, and others simply do not know about the rights. About wages and sick leave Many people are concerned about how to collect wages if it is not formalized? Unfortunately, in this case, you can only get your honestly earned money through the court, proving both the fact of employment and the amount of earnings.

We suggest you read: How to collect alimony if your husband works abroad

A court hearing will require sick leave to be paid if not formalized, as well as payments of any benefits and compensation. What threatens an unscrupulous employer? For violation of the law, the employer will be held liable - administratively or even criminally - and this can also be correctly reminded when trying to resolve issues peacefully. For violation of the Labor Code under Article 5.27 of the Code of Administrative Offences, the fines are:

• for officials – 1000-5000 rubles;
• for individual entrepreneurs - a fine in the same amount can be replaced by a ban on carrying out activities for 90 days;
• for legal entities – 30,000-50,000 rubles.

The main thing is to have evidence that you have worked. You can use them as:

• any information or documents to which you had access during the course of your employment;
• testimony of colleagues (usually two people are enough for the court to side with the illegally dismissed person).

We are not talking now about cases where delays occur due to the fault of an employee, for example, he did not bring documents, or due to reluctance to take on a “pig in a poke.” In the latter case, by the way, those who promise to register after the probationary period again violate the law.

• The trial cannot last more than 3 months.
• Its completion must be mentioned in the employment contract.
• Before the start (!) of the probationary period, it must be formalized (indicating the amount of remuneration).

Only in this case can you start working.

A significant share of the expenses that business entities incur monthly falls on wages and deductions from them. In order to save a little money, owners increasingly prefer to carry out informal (without documentation) employment. Sometimes this step is beneficial not only to management, but also to the employee himself. However, it must be remembered that the law provides for liability for this action.

Labor legislation establishes that an employment relationship is considered formalized if an employment contract is drawn up and signed between the parties.

The concept of informal employment does not exist in the law. However, by analogy it can be understood that this is a type of relationship in which an employment contract is not signed between the parties, an entry is not made in the work book, and management will issue the salary unofficially “in an envelope.”

However, such an employee is not considered a full-time employee, he is not listed in any documents and insurance premiums are not transferred to him. Therefore, this period of work is not included in his pension experience.

The responsibility of the employer-company for failure to draw up an employment contract is quite serious than that of entrepreneurs.

For minor violations, a fine can only be issued to the organization. However, if the number of unregistered workers is significant, then the officials and the manager bear the punishment.

The fine starts from 50 thousand rubles. If there are large volumes of unpaid taxes, the case may be transferred to criminal status.

Working without an employment contract is the responsibility of the employer-manager in both administrative and criminal cases.

In case of administrative liability, a fine of up to 20 thousand rubles or disqualification of up to 3 years is imposed.

If the case is transferred to the criminal category, the fine will be from 150 thousand rubles, and there may also be imprisonment for up to 2 years.

If the underpayment of taxes is qualified as particularly large, then the fine will be from 200 thousand rubles, and the period of imprisonment will increase to 6 years.

In the general situation, a fine is imposed on the entrepreneur, the amount of which is established by the administrative code. But such a step is usually possible only if several people worked informally for the individual entrepreneur for a short period of time.

Evidentiary aspect of the situation

If you doubt the employer’s intention to provide official employment, you must provide evidence to file a complaint or claim in court.

Documents proving the fact of employment include the following:

• A copy of the medical record or medical examination forms that the employee underwent for the employer;
• An extract from a card or other bank account about the transfer of funds from the employer as payment;
• For drivers, confirmation may be waybills;
• Copies of powers of attorney to receive material resources or execute orders on behalf of the organization;
• Job invitations;
• Copies of working documents containing the signatures of the employee and his manager, as well as other employees of the enterprise.

In addition, if there are CCTV cameras, you can apply for the records as part of legal proceedings or complaints to supervisory authorities.

At the same time, witness testimony can serve as evidence.

Appeal to the manager

Understanding the validity of your doubts, you must contact your manager in writing with a request or question about the reasons for not formalizing it.

The document is written addressed to the manager, and the contents indicate:

• The head of the company and his last name;
• From the employee indicating the position and surname with initials;
• Address “Dear First Name and Patronymic”, I ask you to explain the reasons why an employment contract in the form prescribed by law has not been concluded with me, who began my duties on such and such a date, month, or year in office;
• Date and signature.

You can submit your application through the office, with the obligatory receipt of an acceptance mark on your copy. If there is any doubt that the secretary or manager will not accept it, we send it by registered mail with a simple return notification. In the latter case, such a document will also serve as evidence for a court or supervisory authority, and the manager will not have the right not to respond to it in writing.

IMPORTANT !!! If the manager has not responded to the appeal within 10 days from the date of receipt, we send it again, and also write a complaint to the prosecutor’s office about the failure to receive a response to the official appeal.

Consequences of consideration of the complaint

As a result of your complaint, at the end of the investigation, a report is drawn up. If the facts are confirmed, the employer faces the following consequences - the State Labor Inspectorate has the right to react as follows:

• issue an order to further eliminate violations;
• draw up a protocol (within the powers) on administrative violations;
• suspend an employee or personnel of the organization from work;
• prepare documents on bringing labor law violators to justice;
• provide relevant information to local authorities, law enforcement agencies, and the court;

After studying the circumstances of the case, the applicant is sent a written response about the results of the inspection. It provides an explanation of whether the violations have been confirmed and what measures have been taken against the manager. If it is not possible to solve the problem within the competence of the labor inspectorate, then the citizen is explained options for further actions provided for by law to restore his rights. The results of the inspection can be used as an argument in court.

A written appeal received by a state body, local government body or official in accordance with their competence is considered within 30 days from the date of registration of the written appeal.

The most common ways to protect labor rights are:

• Complaint to the state labor inspectorate;
• Complaint to the prosecutor's office;
• Complaint to the tax office;
• Statement of claim to court.

Let's look at these methods one by one and try to figure out how they work.

Complaint to the prosecutor's office and its effectiveness

Contacting the prosecutor's office is advisable in cases where, without officially arranging the case, the employer does not pay for the period of work. In a situation where the employer does not settle and does not pay wages, it is advisable to consider what the employee should do individually.

If the employer honestly paid the promised amounts, and the employee is committed to obtaining official employment, then the answer to the prosecutor will not satisfy him. In most cases, prosecutors, in response to the appeal, explain the rights, offering to go to the judicial authorities for their protection.

You can perceive this as a formal attitude and re-send the appeal to a higher prosecutor’s office, for example, to the regional or federal one.

ATTENTION !!! The effectiveness of contacting the prosecutor's office largely depends on how strong the evidence is presented by the applicant, as well as on the integrity of the prosecutor himself.

The correctness of the application is also important. The latter can be sent in writing, electronically and at a personal reception. By the way, it is recommended to personally visit the prosecutor's office.

How to prove the fact of labor relations

As soon as management announces to an employee who is not officially employed that he is being fired, he must immediately take appropriate measures to protect his rights.

He needs to try to get from his employer all the documents on which he signed. It is necessary to collect this evidence as quickly as possible, and under no circumstances notify your management about this, as they will interfere with this. This evidence may simply be destroyed.

After this, it is necessary to send an application to the management, which must contain a requirement to include this temporary period of work in the labor record.

This application must be handed over to management and one copy with an incoming mark must be received. However, it is best to send such an application to management by registered mail with acknowledgment of receipt.

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Registration of an appeal

The legislator allows the filing of a complaint in simple handwritten form. But the latter will look more impressive if it is printed.

In addition, the content of the application must contain a number of mandatory points:

• The name of the prosecutor's office indicating the address and surname, rank of its head;
• Information about the applicant - last name, address details and contact telephone number;
• In the title of the complaint we indicate the type of rights violated; to specify the situation briefly, in the situation under consideration we can designate “a complaint regarding the failure to formalize official employment”;
• The content of the application describes the situation, indicating full information about the employer - name, legal address, telephone number, last name of the manager;
• Indicate the dates when the employee actually began performing duties and until what point he performed them, describe the amounts and forms of remuneration, if any;
• Outline the requirement for the need to conduct a prosecutorial audit and take response measures and force the employer to draw up an employment contract;
• Documents are drawn up in the form of a list to prove the fact of fulfillment of labor duties;
• The document is completed with a date and signature.

ATTENTION !!! It is difficult to judge the effectiveness of such treatment. In many ways, it all depends on how convincing and weighty the evidence of employment turned out to be.

So, for example, if a manager responded to an employee’s request to explain the reasons for not formalizing an employment relationship, then such a response already proves a “labor” connection with the employer, as well as the very fact of sending such a statement. In fact, few people would think of writing such appeals to company managers without having a working relationship with them because they are meaningless and illogical.

Contacting the Labor Inspectorate

The principles for contacting the Labor Inspectorate are identical to those described above when sending a complaint to the prosecutor's office. The appeal can also be sent by mail or in person. The writing rules and content points are the same. In fact, in the appeal sent to the prosecutor’s office, it is necessary to change the addressee, and in the last paragraph, remove the phrase about the prosecutor’s inspection, limiting it to only the words “conduct an inspection and take action.”

IMPORTANT !!! In responding to this appeal, there is also a risk of receiving a formal response to the fact that this situation is a matter for the court, and it is important for the employee to prove his case in court.

But, before going to court, you should request materials from the inspection of the complaint that the Labor Inspectorate considered; if its results did not satisfy the applicant or the latter received a refusal of his request, then we write another appeal, but to the Federal Labor Inspectorate, for illegal actions inspector, improper and incomplete consideration of the application.