In accordance with the requirements of the Labor Code of the Russian Federation, labor contract It is in writing, is drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is transferred to the employee, another is stored with the employer. The acquisition of an employee of an employment contract must be confirmed by the employee's signature at an instance of an employment contract stored at the employer.

At the same time, according to part of the second Art. 67 Labor Code of the Russian Federation An employed employment contract is considered to be concluded if the employee has started working with the knowledge or on behalf of the employer or its representative. With the actual worker's assumption to work the employer must arrange an employment contract with him in writing no later than three working days. From the day the actual assumption of the employee to work.

Thus, the employment contract with you is concluded, but it is not issued by the employer in accordance with the requirements of the legislation, and this violation of the employer of labor legislation falls under the sanctions provided for by Art. 5.27 Administrative Code.

Furthermore, in accordance with Art. 70 of the Labor Code of the Russian Federation lacking in the labor contract the test conditions means that the worker is accepted for work without testing. In the case when the employee is actually admitted to work without registration of an employment contract (part of the second article 67 of this Code), the test condition may be included in the employment contract, only if the parties issued it in the form of a separate agreement before work. Since in your case there was no such agreement, the employer's statements about the presence of the test period were illegal.

From the point of view of legal qualifications in your case, everything is very definitely - the employer roughly violates the labor legislation and administrative responsibility may be imposed on it. 5.27 COAMA and an obligation to eliminate violations of labor legislation.

The most difficult thing in your case is the process of proving the presence of labor relations and sizes. wages. In this regard, you need to collect evidence of your work, your official duties while working at this employer, and, if possible, the amount of salary. If this condition is difficult to follow, it will be possible to follow the average level of wages in the Russian Federation or in the region (under the Russian Federation 22.8 thousand) or level minimum size wages (4611 rubles). The court as a rule prefers to be guided by the second, however, and the basis of its requirements on the wage level sometimes brings success.

At the moment you can write a complaint with the prosecutor's office and / or to the State Labor Inspectorate with a description of all violations available at your enterprise or what you consider that. The audit report will have a significant force for the trial, in addition, violations of the verification of the prosecutor's office and in accordance with the decision to bring to administrative responsibility and the instruction of the Supreme Surgery can be eliminated more faster.

When contacting these bodies, you should specify your name, but at the same time you can specify that you are afraid of abuse, discrimination and unlawful actions by the employer who can express in coercion to dismissal or in unreasonable disciplinary recovery.

Any employed employee wages should be paid 2 times a month. The deviation from the graph let even one day unacceptably - in such a situation, the employer is punished. But what if the money is not issued by weeks or months?

The firm's responsibility to their employees for a complete non-payment or partial delay of salary and other cash payments can be administrative, material and even criminal.

Regulated by the Code of Administrative Offenses. According to Article 5.27, it is possible a warning or a penalty prescription:

• officers and private employers - from 2 thousand rubles. up to 5 thousand rubles;
• on legal - from 50 thousand rubles. up to 80 thousand p.

The repetition of violations will lead to a fine of 10 thousand rubles. up to 20 thousand rubles and from 50 thousand rubles. up to 70 thousand p. respectively. Officials may be devoid of qualifications for a period of 12 to 36 months.

Based on Article 236 of the Labor Code of the Russian Federation, we can say that:

• the responsibility of the employer arises the day after non-payment of payout employee;
• the obligation of material compensation appears regardless of the presence of the guilt of the employer in the situation arising;
• under the law, not only wages, but also compensation for vacation, hospital or payout during dismissal;
• if the funds were not paid to the employee at all, the employer company is obliged for each full day of delay to add an amount to its debt, which is equal to the 1/150 current key rate (now it is 9.25%);
• if the payment was incomplete, then the calculation is made on the basis of residual debt.

Suppose that the unpaid employee amount amounts to 100 thousand rubles, and the delay period is 45 days.

1/150 key bet \u003d 0.061% (1/150 x 9.25%)

In one day, the employer must employ 61 rubles (100 thousand p. X 0.061%), which means in 45 days, financial compensation will be 2,745 rubles.

Regulated by Article 145.1 of the Criminal Code of the Russian Federation.

The responsibility of the employer appears with a complete or partial (less than half of the laid), non-payment due to the employee for personal or mercenary commercial reasons.

If the employee did not receive fully salary money or other payments for more than 3 months, then a fine of up to 120 thousand rubles can be imposed on the head of the company. or within its wage (or other income) for the period up to 12 months. Also possible is possible to occupy specific job positions for a period of up to 1 year. Punishment can also be established in the form of forced labor to 2 years or imprisonment for the period up to 1 year.

With a complete non-payment of an employee of more than 2 months due to him, the manager may be discharged in the amount of 100 thousand rubles. up to 500 thousand rubles or in the amount of other three-year income. Prohibition of posts, correctional work or imprisonment can be set for a period up to 36 months.

Before going to human rights defenders, it is recommended to talk with the bosses and try to resolve the issue. If there is no result, then you can defend your interests in the work inspection, the prosecutor's office or in court.

The appeal to the State Labor Inspection (GIT) according to the law governing the rules for the processing of civil appeals is anonymous. The application is issued in free form with a mandatory indication:

According to the results of the consideration of the appeal, GIT can send a notice to the employer about the need to immediately make a settlement with employees, as well as notify the law enforcement agencies.

If the employer does not fulfill the prescription or the Labor Inspectorate refused to protect his rights, the employee may apply to the prosecutor's office. In this case, it is possible to complain about the employer, and at the staff of the Labor Inspectorate. The limitation period on the issue is 12 months.

It is possible to appeal to the police in order to attract the management of the firm to criminal liability.

It is important to know that in accordance with Article 142 of the Labor Code of the Russian Federation, an employee may, putting the employer in fame in writing, do not attend the place of work until the repayment of payments debt. This right can be used from the 16th day of delay (there are exceptions, for example - civil servants, full list in the text of the law). Middle earnings during the suspension of the duties are preserved.

But, in addition to legal moments, there are several recommendations, how to "survive" the period of non-payment of salary with minimal losses:

Moreover, it happens not only in the "gray" firms, but also where salaries pay fully officially. The reasons for not making workers a lot and each director has their own.

But is it well not the design of the newly arrived employee? What consequences can the director and the company itself be expected when not compliance with labor legislation? Is this risk justified for the company and business in general? Consider in this article.

Masking of a unformed worker

In the "white" companies, often the only problem see the need to somehow arrange payments for the work that an unformed employee does. For this, the salary due to him is accrued and issued to someone else:

• (or) enter into an employment contract with a person who will indicate the worker himself;
• (or) draw up internal combination with another employee of the company, who transmits money to the unformed employee.

In the name of this person and the accrual of insurance premiums and NDFLs.

Well, where, where money is given for work, "in the envelope" come easier - make up an employment contract with a "empty" date in one copy and keep it ready, in order to pretend that this person has just been adopted (on the design of labor TC agreements assign 3 days from the date when a person has begun to work).

What trouble do you expect a company?

However, the presence of such an employee may be for the company's slowdown bomb. After all, if a person from the knowledge and on behalf of the employer began work, then, despite the fact that the employment contract is not issued, it is still a prisoner. So, the company automatically arises all the associated duties, both before the employee and the state. And for the failure to comply with each of them - its responsibility.

Everything can open, for example, as a result of an accident with this employee in your territory or conflict with him, after which he complains about not making relationships in the labor inspection, funds, tax inspection, the prosecutor's office will appeal to the court, etc. For them, this can be a reason for carrying out checks.

Attention! For the tax authorities received information about non-registration of labor relations - one of the reasons include the company to the plan of field checks.

And if the fact of work will be proved by the court, where the employee turns out, or this fact will consider proven verifier, wait for trouble. And sometimes, as evidence of admission to work, the court is quite some of the testimony (former or current employees, customers and other counterparties, with whom a neurofiled worker).

Nude 1. Directors and the company will attract administrative responsibility for violation of labor legislation. For the company, this is a fine of 30,000 to 50,000 rubles. For director - fine from 1000 to 5000 rubles.

The term of limitation of attraction to justice - 2 months from the date of the violation. There will be a violation here not only in itself is not the execution of an employment contract, but also failure to comply with the employer's duties arising from relations with this employee (not familiarizing the employee with internal documents, non-employment entry into the employment record, the lack of an order for employment, not compulsory medical examinations, non-unique personal protective equipment, etc.).

Written for the latest violation, for example, for bringing to work in a weekend without written consent.

If the director has already been fined during last year At least for one of the same "labor" violations, he threatens disqualification for a period of 1 year to 3 years. Dividity can during the year from the moment of re-violation. To refer to the fact that the worker himself refused to sign an employment contract, most likely it will be useless.

Nolescence 2. Inspection and Funds are accrued to NFFL, contributions, penalties and fines, if they prove that the unformed worker received a black salary. And if it charged to the unformed employee "White" salary to pay to another person, then in your interests to reduce the detachments to transfer payments in accordance with reality. But in this case, it is not always possible to avoid detachments. There may be arreed in insurance premiums if:

• (or) the employee and the person who was issued instead of him different age. Then paid contributions may be incorrectly distributed to insurance and accumulative parts;
• (or) The salary of a unformed person was charged with another employee of the company for "alignment" and the annual income of the latter, taking into account the extra charge, exceeded 512,000 rubles, and without it, it does not reach this magnitude.

Similar problems may arise with personal income tax, because each has their own deductions.

Trouble 3. Tax and funds are flying for failure to submit reports on the unformed employee. Possible fines:

• for not the delivery of information of personalized accounting on the unformed employee and, if the salary of the invisible employee was charged to another employee, for unreliable information on who was charged by his salary. The fine for the company is 10% of the amount of salaries from each of them for each of the reporting periods, a fine for the director - from 300 to 500 rubles;
• i do not pass 2-nddfl on the unformed employee. Fine for the company - 200 rubles. For each not a downed certificate, for the director or chief book - from 300 to 500 rubles.

Four. If an accident occurs with a unformed employee in your territory, you will need to be notified whole line Gosorganov (including labor inspection and prosecutor's office) and appoint an investigation. For trying to hide an accident, the company may finf in the amount of 5,000 to 10,000 rubles, and the leader is from 500 to 1000 rubles.

Insurance provision of the victim to the employee, despite the fact that it was not issued, must pay the FSS (if the employee turns out there). However, if the employee received a "black" salary, the fund will most likely require the company to reimburse the amounts of insurance provision, presenting to it the so-called regress claim. If the salary was "white" (that is, the contributions to the "unfortunate" insurance) were paid from it, but she was charged to another person, and after an accident, she managed to re-inform the affected employee, then the Foundation claims should not be.

If the unformed worker did not samples in the general magazine that the labor protection instructions, safety and training rules and training, the director may consider it guilty of harmful to its health. For this, criminal liability is provided: from fine 200 000 rubles. Before the "term" 4 years - depends on the severity of the effects of an accident.

Nude 5. Upon the occurrence of an insurance case with an employee, he will require through the labor inspectorate of payments for a hospital leaf or pregnancy and childbirth. To go for it, for example, an employee who first refused to design, and later, adding the ranks of future mothers, decided to replay everything for the sake of obtaining maternity and "children's" vacation. The manual will have to pay out of his pocket. However, if contributions for the salary of the unformed employee will be accrued, the FSS should be reimbrangering.

Nude 6. If you paid a salary "in the envelope" to the unformed employee and he did not sign out anywhere in her receipt, he may be able to deny - will deny that he received a salary, and will require it again, and even with compensation for delay. Compensation size - 1/300 refinancing rates from the amount of the detainee salary for each day of delay. When there are no written agreements on the value of salaries, labor inspectors can calculate compensation on the basis of or from the minimum wage or from the salary established by your wage position ( staffing schedule), and from the work schedule for the post, which worked worker.

Nude 7. The employee will refuse to refund damages caused losses, and the court may support it.

Known such a case. The court established the fact of the work of a unformed employee and awarded that not paid paid and compensation for unused vacation. Despite this, the Court refused the company to recover from this employee of damages, which arose due to the fact that after the end of the latter before the dismissal of shift, he did not pass the documents belonging to the employer.

The motivation of the court is such: first, the employment contract was not issued, and therefore, the duties to take documents from the employee at the end of the shift. Secondly, since the inaction of the company who did not make an employment contract "is not in the legal field", it is not entitled to demand the judicial protection of its interests and "must bear the unfavorable consequences of their inaction."

In custody

You can never confidently predict how one or another person behaves and how circumstances turn out. And even if the responsibility and detachments can be avoided, the nervousness with the inspection will be abounding. In addition, sometimes directors do not occur completely obvious to the accountant things, for example:

• unformed worker cannot undergo a mandatory medical examination;
• if he is a financially responsible person and with him will be an agreement on full material responsibility, it will be unnecessary proof of employment, because such an agreement is possible only as an addition to the labor;
• he can not officially issue cash under the report;
• it will not be possible to make reliable primary documents that require its signature, such as travel sheets.

Unfortunately, in Russian reality, employees often have to deal with delays and non-payments of wages. In most cases, the situation is quite ordinary, accompanied by a certain mutual understanding between the employee and the leadership. The employee is asked to "enter the situation" and subsequently money is still paid, as a last resort, in parts. If the situation is more critical and the employer does not pay a salary for no longer one month, and "breakfasts" continues to feed - it is worth thinking about decisive actions.

Fail-loop patch - reason to talk to the boss

In case of non-payment of earned amount, much depends on the relationship between the employee and the employer, from the psychological atmosphere in the team. One way or another before resorting to the use of provisions Labor Code In practice, it is worth talking with the authorities and try to find out what the real state of affairs and what position is the guidelines on non-payment.

It is worth noting that not always, even in the absence of official design, the employer takes the position "I do not like - dismiss." As a rule, the dismissal of the employee, especially in the crisis situation, entails problems and trouble for all sides.

It is often unprofitable to the employer, since the care of the employee is associated with a possible breakdown of the deadlines for the delivery of certain projects or orders, a new employee will join the work from a week to month, depending on the functional complexity of the workflow, while hiding the real state of financial affairs from the new person Often it is impossible. Therefore, despite the fact that "in the hearts", the boss may throw the phrase about the dismissal, in practice it may not be necessary for him.

Nevertheless, if the conversations with the leadership do not lead to anything, it is worth resorting to the law, which, at least on paper, is able to protect the interests of the employee.

What to do if the salary does not give,

and it's impossible to agree?

So, the situation is as follows: "Do not give salary what to do"? Of course, much depends on whether the employee is officially issued.

If the relationship with the employer does not fall into the scope of regulation by the Labor Code, then to begin with, at least, it will be necessary to at least prove the fact of work in the company. For this you need to present good evidence that it is often difficult. The maximum that an employee can prescribe is for the presence of the so-called "black box office" from which payments were made. The authorities are not very interested in state checks and inspections of various controls, so this can stimulate the employer to find a solution for the established problem.

If the execution is official, then the possibilities of impact (and legitimate) on the bosses are much more. I must say, in such situations the leadership itself tries not to bring the situation to the boiling point.

The employer does not pay for the work done

- A look at the situation through the prism of the law

The first thing that can be done is if the failure of the salary becomes systematic - to stop the work in accordance with 142 Articles of Labor Code. It is necessary to put the employer in writing to the suspension of your work for the entire period before the payment of wages. According to the legislation, the employee has the right not to be in the workplace. It should be noted that there are certain categories of workers who do not have such an opportunity. For example, servicemen, rescuers, emergency staff, law enforcement agencies, hazardous industries, civil servants cannot be used by this norm.

In addition to the obligations assigned to the employer, the obligations to pay a detainee wage fully article 236 TC provides for compensation for each downtime for an employee. Calculation of the amount of compensation is accompanied by some nuances with which the organization's accounting was operated directly.

If the situation in the company is not trusted, then the suspension of work is most likely affecting the bosses and it will make every effort to exit the situation. Of course, it is possible that the desperate leadership will definitely decide to "disperse everyone", but in this case it is important to convey to the employer that such an approach can bring tangible problems and conflicts with the law.

Prosecutor's Office, Labor Inspectorate or Court

- Where to apply if you do not give out salary?

Many workers depressed by the regular non-payment occurring at work are in the oppressed state and confusion, asking the question: "Do not give salary where to contact?"

What if they delay the salary and where to complain?As the Labor Code indicates, each employee has the right to receive wages twice a month. Closer to the end of the month, as a rule, an advance is issued, and at the beginning of the next one, the remaining part of the salary. Accurate payout dates are installed at each enterprise separately and are written in an internal labor regulation if this date will fall out on a day off, the accrual should be made on the eve. If a person has not received a salary exactly on time, it can already be considered a violation of its rights, even day delay is taken into account. In this case, the employee relies with monetary compensation. Today we will talk about what you need to do if the employer delays the salary and how to properly write a claim for wage delay.

If the salary is delayed during long time By law, this may be considered a 15-day period, the employee has the legal right to refuse to fulfill his duties. However, leave workplace Representatives of some professions do not have the law of such a right and after a 15-day period, this concerns civil servants, state-owned staff, livelihood workers, representatives of enterprises engaged in hazardous production.

Rough violations of the Labor Code Russian Federation Threaten to the employer administrative and even criminal punishment. The question is solved with the help of labor inspection, prosecutors and judicial authorities.

How to make compensation without scandal

If the salary was detained for a short time, the worker has the right to demand compensation. Its size for each day should be at least one three-way from the refinancing rate operating during the delay period in the Central Bank. As of July 23, 2016, the rate was 11 percent. Takes into account every day of delay. That is, the amount of compensation is determined from the total amount of the debt to which one more three hundredth from 11 percent per day is added.

The employee's right to compensation is registered in the Labor Code. In enterprises with a good reputation, it is always taken into account this and in the event of a delay add to the salary of the amount. But more often people face the opposite: whether the employer knows the laws badly, or it is most likely, it does not want to pay more. At the first stage, the problem is trying to settle within the enterprise. In the event of a delay and complaints from at least one person create a labor dispute commission, which includes representatives of the working team and an employer, participants must be equally on each side. The statement of the employee is registered, after which the dispute should settle for ten days: either the employee immediately pay the detained salary, or if the decision is not fulfilled, the certificate is issued, and in fact the executive document, which must be attributed to the bailiffs.

Our lawyers know the answer to your question

or by phone:

In addition to monetary compensation, the employee may also require:

• salary indexation, if it comes to constant delays for a long time and general depreciation of money during this period;
• compensation of moral damage (only through the court).

How to act if the salary is delayed for a crescent?

With long salary delay An employee, if only he is among those who are forbidden such a shape of the strike, has the right not to go to work. Before that, he is obliged to inform his employer in writing. If the last notifies that he is ready to pay for the work done, as soon as a person returns to his labor duties, an employee will need to appear on the day after receiving such notice.

What if the problem fails to be solved inside the collective

Relationships inside the team can be very different, and it is not always possible to achieve an understanding from other employees or, even if there is an understanding of colleagues, settle the conflict with the employer through the Labor Commission. Therefore, you can safely contact state bodies. Next, we will analyze where can I complain if the employer delays salary.

Apply to the Labor Inspectorate

Appeal to the labor inspection or its regional office is seen within a month. You can give a complaint in writing directly or send by mail by registered mail (To receive a receipt notice), today in many regions there is also the opportunity to send a complaint over the Internet. It is desirable to apply a copy of the employment contract and any written evidence proving the delay of payments.

If in the inspection, consider the arguments fair, experts will send an instrument to the employer, indicating their debt to the employee, taking into account the accumulated interest.

Do not forget to specify your return address in the complaint, telephone for communication, as well as the amount of debt and the number of salary delay days.

This option can be considered the most convenient and most effective, since the labor inspectorate is dealing with issues of salaries delay and violation of the rights of workers. In addition, inspection officers, in case of needing, should help with the preparation of an application to the judicial authorities, and during the proceedings to confirm the validity of the claimant's claims.

Apply to the prosecutor's office

You can also contact the prosecutor's office, submitting a complaint in writing (it is also possible to attribute a statement to the office or send by registered mail). Prosecutor's check can identify other disorders, after which the employer will impose sanctions.

Apply to the District Court

The case can reach the court not only after checking the labor inspection or prosecutor's office, although their support will be far from unnecessary for the employee, but also on the personal initiative of the citizen. Contact the court at the place of registration of the employer's enterprise.

To make the decision to be positive, you need to make a maximum of documents and evidence of the unfair attitude of the employer:

• original employment contract;
• statement about non-payment;
• copy of the employment record;
• a copy of the order of employment;
• certificate from income accounting;
• bank statements (relevant if the salary is accrued to the card);
• copies of the calculated sheets;
• calculation of debt (according to accounting and own version);
• testimony of witnesses.

Apply to the world court

If the salary was accrued, but it did not reach the employee, you can contact the world judge with a request to issue a judicial order, that is, the executive document on which the plaintiff will be obliged to issue an unpaid salary. The order is issued within 5 days after the appeal.

How to write a claim

How to write a claim for wage delay? The question of the uncomfortable part of the money can be relevant not only in case of delays, he often arises when the employee is dismissed and wants to receive compensation for him for vacation, which he did not use him. In this case, the claim is written in the name of the head and may look something as follows:

Director of Taxi LLC

Ivanov Ivan Ivanovich

from Petrova Peter Petrovich,

(indicate the position)

Claim

I, Petrov Petr Petrovich, worked at Taxi LLC from 01/01/2015 to July 23, 2016 as a driver, which confirms the employment contract concluded between me, Petrov Peter Petrovich, and the director of Taxi LLC Ivanov Ivan Ivanovich, as well as Writing record from 01.01.2015.

I responsibly performed my duties, however, for the period from 01.06.2016 to 07/23/2016, I did not accrue a salary, which indicates a violation of 22 Articles of the TK of the Russian Federation.

Based on the order No. 43478 of July 23, 2016, I was fired under Article 80 of the TC of the Russian Federation.

The size of the salary unpaid to me in Taxi LLC was: for June 2016 - 18 thousand rubles, for July 2016 - 14 thousand rubles, and only 32 thousand rubles.

On the basis of Article 114 of the Labor Code, each employee has the right to an annual paid leave, but I didn't use this right this year and did not receive compensation for this, the debt is 14 thousand rubles.

Employers, delaying their subordinate payroll payments, are responsible for law on the basis of Article 143 of the Civil Code of the Russian Federation. I believe that the management of Taxi LLC violates and does not fulfill the laws.

Based on this, I demand:

I give me a salary in the amount of 32 thousand, funds for vacation that I did not use, in the amount of 14 thousand, and also compensate the costs that were spent by me on a lawyer's services, in the amount of 5 thousand rubles, and everything is paid 51 thousand rubles.

I ask the answer to send at the following address: Vladimir, Levitan Street (indicate the exact address).

In case of incomplete satisfaction of all my legitimate requirements, and even more so in case of refusal, I will have to go to the labor inspectorate in the city of Vladimir, the prosecutor's office, as well as to apply to the court. I will additionally demand to compensate me material damage and pay compensation for moral damage. You will also have a reimbursement of all my judicial expenses.

08/01/2016 Signature

What responsibility is waiting for the employer

For violation of the Labor Code of employers, it is usually attracted to administrative responsibility. In case of delays of payments, they may threaten the following fines:

• up to five thousand rubles for officials;
• up to five thousand rubles or the suspension of activities for 90 days for individual entrepreneurs;
• for legal entities Penalties can reach up to fifty thousand rubles, they may also prohibit activities within 90 days.

In special cases, the amount of fines can increase to 500 thousand rubles.

Employers can also expect criminal penalties with large fines (to half a million), three-year prison And deprivation of the right to hold certain positions during the same period. This is if they do not fully pay the salary for at least two months. If for at least three months the employer gives part of the salary, but less than half, it can be fined only by 120 thousand rubles and deprive of freedom for one year. But to bring to the criminal liability of those persons who pay more than half of the monthly salary for a long time for a long time, pretty difficult.

If the salary is issued on a sulfur or black scheme, to prove the fact of non-payment will be much more difficult, so try to immediately agree with the employer that all payments will be made officially.

If there are several people at work with delays, it is best to act together. Collective statements in all organs are discussed faster and more often lead to positive results.