What are the penalties for an employer for an unregistered employee? You can't argue with the Labor Code. About proof of salary

Official registration labor relations is the employer's responsibility. According to Art. 67 of the Labor Code, the period for concluding an employment contract is 3 days from the moment a person is admitted to work. Ignoring these norms, many employers still prefer to work without an employment contract.

Pros and cons for the employer

Without drawing up an employment contract with an employee, the employer pursues a certain benefit for himself. It could be as follows:

• The possibility of not providing the employee with normal and safe working conditions, because he is not subject to Labor Code standards in this area.
• There is no need to make tax deductions for the employee, which significantly reduces the employer’s expenses.
• The right to terminate the employment relationship with an employee at any time, without complying with the guarantees provided for by the Labor Code for individual categories employees (notice of dismissal, payment of severance pay, restriction of dismissal of pregnant women, persons retirement age etc.).
• No specific payment deadlines wages, as well as its size.

The only disadvantage of employment without registration for the employer is the liability provided by law.

Employer's liability

An employer's responsibility for the work of its employees without an employment contract can be divided into 3 types:

Some facts

1. Tax office. When officially employed, the employer must make contributions to social, health insurance, accident insurance, as well as pension fund a total of about 34% of the employee's salary.
   The purpose of these contributions is to cover periods of employee incapacity. Without concluding an employment contract, the employer deprives his employee of the opportunity to count on payments in case of illness and retirement, and spends the money on increasing his own profits.
   In this regard, Article 123 of the Tax Code obliges an employer who violates the rights of employees not only in in full reimburse unpaid deductions, but also pay a fine of 20% of them.
2. Administrative. Art. 5.27 of the Code of Administrative Offenses provides for an employer who has allowed a person to work, but has not formalized an employment relationship with him accordingly, to be punished with a fine of 10 to 20 thousand rubles. An employment contract concluded in accordance with the Civil Code is also considered work without registration, although in fact the person performs duties in the organization regulated by the Labor Code. For this, Article 5.27 of the Code of Administrative Offenses provides for a fine of 10 to 20 thousand for officials and from 50 to 100 thousand for legal entities.
3. Criminal. If the amount of underpaid taxes and fees falls under the concepts of large or especially large amounts, the employer will be prosecuted under Art. 199.1 CC. This crime may be punishable by a fine of up to 500 thousand rubles, arrest or imprisonment of up to 5 years.

When registering an employee, the employer must prepare the following documents: 1) issue an employment order; 2) make an entry in the work book; 3) provide job description in accordance with staffing table. In addition, the head of the company must familiarize the new employee with all local acts that regulate labor activity enterprise and employee. When reviewing the documents, the employee’s signature is affixed.

Pros and cons for the employee

The benefits of working without registration are as follows:

Interesting information

When an employee contacts the labor inspectorate, an inspection of the enterprise’s activities can be carried out, including the legality of hiring an employee, as well as compliance with the rights and guarantees of the employee during the performance of work duties and the procedure for dismissal. Nevertheless labor inspection does not have great powers and can only record a violation and issue an order to eliminate it within a certain period and issue a fine.

• Receiving a higher salary. It is achieved due to the fact that the employer hands over to the employee part of the tax deductions that he does not pay due to the lack of official employment. In addition, an employee can work more hours than provided for by labor legislation, for which the employer will make an additional payment.
• Work without documents. An employee who does not enter into an employment contract, without official employment, does not need to provide the employer with documents on education, health, etc. Many foreign citizens work unofficially so as not to receive the appropriate permits from the FMS.
• The employee is not subject to additional obligations in the form of compensation financial liability to the employer, maintaining trade secrets, notifying the employer of the desire to resign, etc.
  However, the advantages of working without a contract do not outweigh negative consequences such employment.
• The guarantees provided by the Labor Code are not observed: paid leave and sick leave, compliance with working hours and breaks in work, provision of social leave, ensuring safety in the workplace, etc.
• Uncertainty about wages. Due to the fact that there are no documents confirming the agreed amount of wages, the employer can, at his own discretion, change its size and payment procedure.
• Lack of work experience. All the time of unofficial work is not included in either the general length of service or the special one (for example, if a person works in the Far North), therefore, upon reaching retirement age, such a worker will be left without government payments.
• Uncertainty about work deadlines. You can work without an employment contract as long as the employer is interested in the employee. At any time, he can terminate the employment relationship with a person, while the employee will be left without severance pay and without guarantees of priority retention in the workplace, which the Labor Code provides for certain categories of citizens (disabled people, pregnant women, single parents, etc.)

The employer’s refusal to formalize the relationship should alert the employee from the first days of work. If the employer claims that he is hiring a person for a probationary period and therefore does not see the need to enter into an agreement, the employee runs the risk of “ probationary period» to remain both without work and without cash.

In the process of work without registration, management can increase working hours beyond the established norm, involve the employee in performing duties even on a weekend or at night, without worrying about the existing guarantees specified in Articles 152-154 of the Labor Code of the Russian Federation.

What to do if the employer does not enter into an employment contract

The legislation provides for 2 options for official labor relations: fixed-term and indefinite; the employer himself determines which agreement to conclude with the employee. Working without registration is risky for an employee, but if such a situation occurs, there are several solutions:

• Insist on concluding an employment contract;
• Resign from the organization;
• Continue working informally, simultaneously collecting documents with which you can prove the fact of an employment relationship.

The fact is that the law protects workers who work without registration from the arbitrariness of employers, who can not only kick out the employee at any time, but also not pay him wages.

Yes, Art. 67 of the Labor Code states that the admission by the employer or his authorized person of an employee to perform labor duties is equivalent to the conclusion of an employment contract, despite the fact that in fact it may not be formalized. That is, an employee without official employment can go to court for reinstatement at work and payment of wages, but for this he needs to prove to the court the fact of an employment relationship.

In the video below, a lawyer talks about the features of working without registration

Evidence of work without registration

As evidence, an employee can use the testimony of people who worked with him, as well as written documents:

• Personal medical record of the employee, if he underwent monthly examinations with the employer;
• Bank statement confirming monthly transfers of funds as wages;
• Waybills for drivers;
• Power of attorney to perform any actions on behalf of the organization;
• Written or electronic invitation to work;
• Other documents containing the employee’s signature or his last name.

If the court recognizes the fact of work without drawing up an employment contract, the employer will have to reinstate the employee at work and pay the arrears of wages. However, the time of such work will still not be taken into account in the length of service for assigning a pension.

Ask questions in the comments to the article and get an expert answer

If the organization has not drawn up a written employment contract with the hired employee, liability arises under the above-mentioned article. 5.27 Code of Administrative Offenses of the Russian Federation. In this case, the fine for an unregistered employee is imposed on an official, who, as a rule, is a director who is authorized to enter into employment contracts on behalf of the enterprise. And if such a manager commits a similar violation again, he may be disqualified altogether. In addition, the fine is imposed directly on the organization itself.

Also, the possibility of imposing a fine on the head of a legal entity for an unregistered employee is provided for within the framework of criminal liability. In addition, other types of punishment are applied, in particular forced labor, arrest or imprisonment. This type of liability occurs if there has been large-scale tax evasion for an unregistered employee.

Types and extent of liability for an unregistered employee

If an individual entrepreneur or an official of an organization evades registration of an employee, administrative or criminal liability arises. It depends on the type of responsibility what fine for an unregistered employee must be paid.

The extent of responsibility of an individual entrepreneur for an unregistered employee:

According to the Code of Administrative Offenses of the Russian Federation - penalties from 1000 to 5000 rubles. or prohibition to engage economic activity up to 90 days.

According to the Criminal Code of the Russian Federation - a fine of 100 to 300 thousand rubles, or forced labor for up to two years, or arrest for up to six months, or imprisonment for 2 years. All types of punishment, except for a fine, also provide for a ban on working in the previous or similar position. The specific type and amount of punishment, for example, determining what fine for an unregistered employee should be applied to the perpetrator, is chosen by the court.

Amounts of liability of a legal entity:

According to the Administrative Code of the Russian Federation, you can impose a fine on a manager from 1 to 5 thousand rubles, and on a legal entity - from 30 to 50 thousand, or stop work for up to 90 days.

As for criminal liability, the scope and measure of punishment for an official are the same as for a private entrepreneur.

In conclusion, it should be added that if either an entrepreneur or a legal entity disagrees with the actions of the inspectors, or the employer violates the rights of his subordinates, it is best to seek advice from specialists in this field. They are the ones who will quickly and competently help resolve conflict situations that have arisen, and if they are unwilling to compromise, they will support the client in court.

Each individual entrepreneur using labor employees, has the obligation to properly register such employees in full compliance with the Labor Code of the Russian Federation.

Failure to fulfill this obligation is recognized as a gross violation of current legislation, since it can harm not only the rights of the employee himself, but also the state.

What is an unofficial device?

It does not appear directly in the legislation of the Russian Federation, however, based on the meaning of the law and established practice, unofficial employment is recognized as the actual admission of a person to perform labor functions, without drawing up documents that meet the requirements of the Labor Code of the Russian Federation.

Reasons for refusal official registration workers are different. Some categories of workers, such as foreigners or pensioners, actively use the opportunities for “shadow” work.

Foreign citizens prefer to do without obtaining labor documents, since they must have a work permit, obtaining which is a very lengthy and complicated procedure.

Disabled people prefer to work “outside” the accounting department in order to maintain the social benefits due to them by law, which are abolished in the case of work under an officially concluded contract.

Benefit for employee and employer

The employer benefits from undocumented workers.

The employer prefers not to formally register employees for the following reasons:

1. Possibility to avoid taxation. The employer, as a tax agent, is obliged to withhold a tax of 13% from the employee, therefore many employers, not wanting to pay this tax, do not formalize the relationship with the employee;
2. Non-payment of deductions from employee salaries due to unprofitable rates;
3. The employer has the opportunity to regulate the salary level at its own discretion;
4. Many employers believe that due to the lack of documentary evidence of availability, compliance with legal requirements in the field of labor protection is not mandatory.

Many of the above reasons are very unfavorable for workers, so the question arises, why do job seekers voluntarily agree to work informally? There are several reasons for this:

• there is no requirement to provide a package of documents provided for by the Labor Code of the Russian Federation when hiring a person;
• it is possible not to make many payments that are withheld from official salaries (alimony, taxes, etc.);
• sometimes the applicant agrees to work unofficially due to the impossibility of finding a similar job registered in accordance with the law.

The common reason for refusal by an employee and an employer is to avoid taxation and other payments; otherwise, as practice shows, the interests of these persons differ.

Responsibility of individual entrepreneurs for unregistered employees

The employer faces administrative liability.

An individual entrepreneur carrying out his activities with the involvement of hired workers is obliged to officially formalize labor relations with each of them within three days from the moment the person is actually allowed to perform his labor functions.

If the employee fails to register, the individual entrepreneur will be subject to administrative and criminal liability.

Administrative liability is applied to individual entrepreneurs on the basis of Article 5.27 of the Code of Administrative Offenses of the Russian Federation and entails a warning or a fine in the amount of 5 to 10 thousand rubles.

In case of repeated commission of a similar violation, the individual entrepreneur will be obliged to pay a fine in the amount of 30 to 40 thousand rubles. Moreover, the activities of an individual entrepreneur can be forcibly suspended for up to 90 days.

Criminal liability on the basis of Article 199.1 of the Criminal Code of the Russian Federation provides for the punishment of an individual entrepreneur who has not fulfilled the duties of a tax agent in the form of a fine in the amount of one hundred to three hundred thousand rubles. In some cases, a prison sentence of up to two years may apply.

It is important to remember that regardless of the type of liability, the individual entrepreneur is obliged to initially compensate the state for all lost funds.

If a foreign worker is hired without the appropriate registration, the individual entrepreneur (based on Chapter 18 of the Code of Administrative Offenses of the Russian Federation) pays a fine of up to 50 thousand rubles. Which in some cases can reach up to 800 thousand rubles or develop into another sanction in the form of suspension of activities for a period of 14 to 90 days, when, for example, a foreigner worked at retail facilities.

In order to avoid such liability, the individual entrepreneur must register the employee and pay all taxes and fees due to the state for the entire period of the employee’s work.

It is impossible to avoid fines without bringing activities in accordance with the law.

State Labor Inspectorate (SIT) and courts to protect workers’ rights

If an unregistered employee applies to the State Tax Inspectorate or the court in order to protect his rights, the individual entrepreneur will not be able to avoid responsibility for the actual offenses committed. The law gives the parties to the dispute 30 days to resolve the situation and conclude a settlement agreement.

The individual entrepreneur may also invite the employee to withdraw the application subject to its subsequent official registration. Otherwise, the individual entrepreneur will face the liability described above.

Thus, despite the benefit received by the employer when employees are not registered, liability for violation labor legislation exceeds everything possible advantages refusal of the employment contract.

From this video you will learn about fines for an unregistered foreign worker.

Form for receiving a question, write yours

Hello! In this article we will talk about the system of penalties for entrepreneurs and directors of organizations in case of improper registration of their employees.

Today you will learn:

1. For what reasons is the director of the company imposed if the employees are not officially registered;
2. What is the responsibility of the legal entity in this case;
3. What is the employer's responsibility in case of incorrect registration of migrants;
4. What you need to consider when hiring foreign illegal immigrants;
5. The amount of fines that are imposed on individual entrepreneurs and legal entities for inappropriate employment of employees.

Reasons for imposing fines on company management

Labor relations between employer and employee must be formalized in accordance with legislative norms.

To register a person for a position, the employer is obliged to enter into a contract with him, according to which both parties to the labor relationship have certain responsibilities.
Such an agreement is drawn up and signed in two copies, indicating the date of employment. , then you must indicate the end date of the employment relationship. One copy of the agreement is kept by the employer, the other is given to the employee.

The appointment date is very important information, which indicates that the person is officially registered and has started working at a certain point.

The contract must include the following: last name, first name, patronymic of the person being accepted, his personal data (passport number and series, INN and SNILS numbers), residential address. The employee must provide documents confirming education and qualifications for the position held. The contract must indicate the type and nature of the work and the work week schedule. These are integral components of an employment contract that cannot be violated.

The employee is obliged to properly fulfill his labor functions, observe the daily routine at the enterprise. And the employer, in turn, guarantees constant and appropriate wages, pays taxes, and provides the employee with all benefits and social guarantees.

A person can work without registration for only three days, after which an employment contract must be drawn up.

Reasons for imposing fines:

1. Late conclusion of an employment contract with an employee or absence of one. This leads to the fact that the employee does not have official earnings, and therefore there is no payment to the state;
2. If the contract is not concluded, the employee’s length of service is not counted and payments are not made to the Pension Fund, which will negatively affect the registration of an old-age pension;
3. Medical institutions may refuse to provide free assistance to an employee of any organization due to the fact that contributions to the health insurance fund are not paid;

When a person is not officially registered at an enterprise, he loses his rights. He cannot achieve a number of payments, for example, vacation pay, final settlement. And when addressing these issues to the courts, he will not be able to prove the occurrence of such moments.

The question arises of how to avoid a fine for an unregistered employee, as well as administrative and criminal liability. The main thing is to legitimize the relationship between the employer and the employee in a timely and correct manner.

Responsibility for failure to register individual entrepreneurs

Typically, in practice, entrepreneurs do not enter into employment contracts with their employees. So, they are trying to save their money, thereby not paying taxes to government funds. This is a violation that entails a fine on the individual entrepreneur of up to five thousand rubles, and the entrepreneur’s activities are suspended for 90 days. Often such situations end in the closure of the individual entrepreneur’s activities, in best cases will lead to losses.

If the audit reveals that the employee has not been registered for several years, and taxes have not been paid for this period, then a criminal case will be opened against the individual entrepreneur, and a demand may be made for payment of insurance premiums for the lost period in full.

The fine for such a violation for an individual entrepreneur is up to 300,000 rubles, and an arrest may also be imposed for up to two years.

A fine for an individual entrepreneur will significantly affect its financial results, so in order to protect yourself from huge losses in the future, you should draw up employment contracts in accordance with all the rules with your employees.

Responsibility for failure to register employees as legal entities. persons

Legal entities must also be held accountable before the law for failure to formally hire their employees and for violations in the preparation of employment documents.

If such a situation occurs, fines may be imposed directly on the director or HR inspector.

• Removal of officials from work;
• Imposition of large fines on legal entities. person in the amount of up to 100,000 rubles;
• Imposition of fines on the head of an organization in the amount of up to 5,000 rubles;
• Suspension of activities for a period of 90 days;
• Criminal prosecution;
• Correctional work;
• Arrest for up to three years.

Such measures can also be determined in the event of incorrect execution of work books and employment contracts.

Responsibility for migrants

Incorrect registration of migrants, that is, foreign citizens, entails even greater liability for the employer.

In the following cases, the director will receive a fine for working with illegal immigrants:

• If the foreigner does not have permission for any type of activity;
• If a special permit has not been issued to attract a foreigner to work;
• If a contract has been concluded with a migrant under which he was not notified about the terms of work;
• When foreign citizen works in a profession other than that specified on his work permit.

For such labor violations, a fine is imposed on the director in the amount of 35,000-70,000 rubles. The organization will be fined in the amount of up to 1,000,000 rubles, and the operation of the enterprise will be stopped for 90 days.

When hiring foreigners, you should ensure that they are registered. In case of delay, the Federal Migration Service may impose penalties on the employer.

When hiring foreign person, you should pay attention to a number of points:

• Check the presence of an identity document (passport, refugee card or residence permit);
• Check the initial registration of an illegal immigrant;
• Check the availability of a patent or work permit in a particular area of ​​the Russian Federation;
• Check documents confirming the qualifications of the position held;
• Availability of pension fund certificates and TIN.

No matter what violation took place, when attracting foreign labor, a fine for not official employment very big.

Therefore, to avoid such financial losses for the organization, you should carefully study legislative framework when processing illegal immigrants.

When auditor organizations detect violations of labor legislation, they draw up an inspection protocol, on the basis of which the amount of penalties is determined.

Conclusion

If you are an employer, no matter an individual entrepreneur or a legal entity, you are obliged to officially employ your employees, pay them their due salaries and pay taxes. Otherwise, you will be subject to criminal liability.

If you decide to save on your employees, then you will have to spend several times more money.

The employee, for his part, must demand official employment in order to provide himself with all social benefits and not receive wages “in an envelope.”

Like organizations individual entrepreneurs must strictly comply with the requirements of labor legislation when hiring employees. The employment application must be accompanied by: it is drawn up in two copies - one remains with the employer, the second with the employee.

If the employee began his duties before the contract is drawn up, the employer is given only three days to settle all formalities and prepare necessary documents.

Unregistered worker is a harm to the state

If an employer neglects to complete paperwork and hires employees unofficially, he faces administrative or criminal liability, depending on the damage caused to employees and the state.

Unofficial employment without paperwork is punishable by the state for several reasons:

• and official registration, the employee formally does not have earnings, and therefore does not pay personal income tax in the amount of 13%. Deductions from wages must be made by the employer, and if he does not do this, he will face serious penalties.
• Without official status, the employee does not have access to income, and the employer does not contribute funds to the pension fund. As a result, the state does not receive contributions for the maintenance of current pensioners, and the employee loses his pension in the future.
• There are no contributions to the insurance fund, which guarantees the employee free insurance.

Another important point: without official registration, the employee becomes powerless. He can't achieve due payments when calculating, timely, compensation for paid leave, etc. If disputes arise with the employer, the employee cannot prove his case in court.

As a result, informal employment brings harm to the state - it is a loss to the treasury and increases social tension.

The task of regulatory authorities is to identify similar cases and seek respect for the rights of workers and payment of all required fees in favor of the state.

Responsibility of individual entrepreneurs for informal employment

For an unregistered employee - administrative responsibility

If the fact of unofficial hiring of employees is revealed, the entrepreneur faces administrative liability. for an unregistered employee can range from 1 to 5 thousand rubles for an entrepreneur, however, the activities of the enterprise can be suspended for 90 days, which leads to large losses and often becomes the reason for its closure.

The costs of officially employing an employee will be significantly lower than the losses from penalties. However, if an employee has been working unofficially for more than one year, and all this time taxes have not been paid to the state, then it is possible to initiate a criminal case under Article 199-1 of the Criminal Code of the Russian Federation.

Causing damage to the state on a large scale is punishable by either a fine for an entrepreneur in the amount of up to 300,000 rubles, or imprisonment for a period of 2 years. In case of criminal prosecution and proof of guilt, the entrepreneur will be deprived of the right to engage in such activities for a long period.

Usually, when identifying informal employment, the task government agencies- not to close the enterprise, but to achieve payment to the budget of all due, as well as compensation for non-payment in the form of fines. This will cause serious financial damage to an individual enterprise, so it is better not to risk it and immediately fill out all the necessary documents and notify the tax office.

LLC liability for unregistered employees

An unregistered worker faces a large fine

Responsibility for the unofficial employment of employees or for violations in the preparation of documents rests not only with entrepreneurs, but also with legal entities.

In this case, according to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, a large fine is imposed on an enterprise; it is issued either to the head of the organization or to the responsible person dealing with personnel issues.

If violations are detected repeatedly and they cause serious damage to the state, then the organization will be subject to larger fines, in addition, the responsible persons will be released from. In this case, the head of the organization and the head of the personnel department are threatened with criminal prosecution, the punishment being correctional labor or imprisonment for up to two years.

Upon detection of the first violation, a legal entity is awarded a fine of up to 100 thousand rubles. The activities of the organization are suspended for up to 90 days. The head of the organization himself is awarded a fine of up to 5 thousand rubles.

An entrepreneur and the head of a legal entity faces administrative liability not only in case of unofficial employment, but also in case of incorrect filling out employment contracts and work records.

Documentation must comply with established standards; any errors lead to major problems not only for the employer, but also for the employee: for example, if filled out incorrectly work book the period of work will not be taken into account without collecting additional supporting documents.

Responsibility for the employment of migrants

Illegal employment of refugees is an even greater responsibility

An even more serious offense for an employer is the employment of illegal migrants. Organization managers have to be extremely careful when attracting foreigners to work: in this case, the company is guaranteed constant attention from regulatory authorities. The most common violations:

• The employee started work illegally, that is, he does not have a patent or other permitting documents. In this case, he may be deported from the country, and large fines will be imposed on the employer.
• The employer did not notify the migration service about hiring a foreigner, or the notification was submitted untimely. It is necessary to notify the FMS even after termination of a contract with a foreign citizen.
• The foreigner was hired in a profession other than that specified in his patent. In this case, he will need to be fired, and the employer will have to pay a fine.
• The company uses foreign labor without obtaining special permission.

In these and other cases of violation of migration legislation, officials are threatened with a fine in the amount of 35 to 70 thousand rubles, and legal entities faces a fine of up to a million rubles.

In addition, if illegal hiring of foreign labor is detected, the organization’s activities are suspended for a period of 14-90 days, which leads to very serious losses. Strengthened state control forces organizations to refuse to hire foreign labor or strictly comply with all required formalities.

Common violations of labor laws

Penalties for incorrect paperwork

Enterprise managers are held accountable not only for unofficial violations, but also for other violations of the law related to the infringement of employee rights and non-compliance with established standards.

The head of the organization must ensure compliance with labor safety rules: employees must be regularly provided with personal protection, they must be recorded in a special journal.

The need to issue PPE is determined after workplace certification is carried out - a comprehensive check that determines harmful factors affecting the health of personnel. If it was not carried out within the established time frame, the company is also threatened with large fines, after which an assessment of working conditions will still have to be carried out.

Before receiving permission to work new employee must be familiarized with the safety measures against signature; for this purpose, the enterprise must maintain. These are just some violations of labor laws for which the employer bears full responsibility. To avoid penalties. You have to study all the rules and requirements for maintaining documentation and be responsible for filling out papers.

About penalties for an unregistered employee - in the thematic video: