We tell you how to receive the required salary from an employer with whom you do not have an employment contract.
- I worked in the company unofficially. At first the pay was stable, then they started to delay me, so I decided to quit. We were asked to work for two weeks. I worked, but I still haven’t been paid. What to do?
The concept of “unofficial work” is not legally established, but in real life you can often find those who work without registration. In this case, a person takes conscious risks, because the absence of an entry in the work book or an employment contract actually deprives employees of any rights and guarantees related to the Labor Code of the Russian Federation. For example, an employer may not pay for vacation, deprive its employees of bonuses and compensation, and delay or not pay wages.
During employment, the employer, following, must conclude an employment contract with the future employee, which specifies all working conditions, and also perform all actions provided for by labor legislation. The law also states that even an agreement not drawn up in writing is considered concluded if the employee, with the knowledge of the employer, begins to perform work at the enterprise.Therefore, if you clearly fulfilled the assigned tasks, you had a certain schedule, a set lunch break and other attributes of the work schedule, and you were not paid for your work, then you can safely go to court. This, of course, provided that the employer does not want to settle the matter and resolve everything out of court.
- The labor inspection considers only officially concluded labor relations with the employer: an order for employment, an employment contract, an entry in the work book. If this is not the case, you need to confirm the employment relationship in court and prove whether some kind of agreement was established with the employer. For example, about the timing of salary payments, how long the working day lasts, what time is lunch, and so on. If all these agreements were in place and the employer paid you money for all this, then you can recognize this relationship as an employment relationship and oblige the employer to make an entry in your work book and pay all insurance premiums, says state labor inspector Roman Trapitsyn. - Also, the employer can draw up a civil contract to perform a certain type of work, but this is formally no longer an employment relationship.
Before you go to court, make sure you have proof that you actually worked. For example, find witnesses who will confirm your words - they could be the organization's clients or your colleagues. Also, any documents related to you and your employer will serve as evidence: copies of contracts, acts, invoices, printouts of telephone calls to officials of the organization, copies of statements signed by management, and others.
- Payment of arrears will be ordered by the judge if he decides your evidence is convincing and recognizes your relationship as labor or civil law. In general, it is always better to receive and store all the necessary documents related to work, and formalize relations, including labor ones, says an employee of the Labor Inspectorate of the Kirov Region.
For failure to comply with labor laws, the employer may face a fine or suspension of activities for some time. In addition, an employer who does not fulfill the duties of a tax agent (in other words, evades paying taxes) may incur criminal liability under article. In this case, he will face a fine of 100 to 500 thousand rubles or imprisonment for up to six years.
About the main thing - briefly:
Be sure to conclude an employment or civil contract with your employer.
If the employment relationship has not been formalized and the employer does not pay wages, try to resolve the issue first out of court.
If the employer refuses to agree to a settlement, go to court.
Collect all the evidence that will indicate that you really worked in this organization - these are any documents and witnesses.
Unemployment is one of the problems of our society. In order to somehow survive, many citizens work unofficially, without an employment contract.
There are also often cases where, although salaries are calculated officially, a smaller part of it is processed through accounting, and large “gray” amounts are given directly to employees, without being reflected anywhere.
And often, when parting with an employee, such an employer either does not pay him anything at all, or pays only what is written in the employment contract. What can be done here?
In what cases can you recover after dismissal?
First of all, it is worth understanding what the relationship is between an employee and an employer who does not formalize an employment contract. However, the work itself was performed - therefore, it must be paid.
In this case, this method helps: by any means, the fact that the person worked unofficially is recorded.
Anything can be here:
Any documents that we could find. For example, if there are no accounting statements, but there are simply lists indicating the amounts for which employees signed, and a copy of such a list was obtained - this is excellent evidence.
Testimony of witnesses who saw the fact of work (it’s best when they also collect wages - and confirm each other’s words).
Voice recorder recordings, videos, photographs, etc.
Based on all this evidence, a statement of claim is prepared and filed in court. In it, the plaintiff demands payments not for work, but for work performed or services provided - within the framework of civil law.
It is impossible to predict in advance how successful such a step will be. However, there is a chance of winning the case if there is enough evidence.
What to do before you quit
If the “black” or “gray” salary is not paid, but the employee has not yet left, there is a way to put pressure on the employer.
The fact is that payments “in an envelope” are almost always tax fraud. Therefore, in a conversation with your employer, you can hint that you are going to complain to the local tax office. Sometimes this helps to achieve payment in full.
However, it is worth remembering: most likely, after this you will have to leave - it is unlikely that the owner will tolerate an obstinate employee.
In addition, you need to remember: black wages are a double-edged sword. The employer breaks the law, but the employee also hides his income and does not pay VAT. Usually there are not the amounts for which the tax authorities will open a case - however, there is a risk that the employee will also be held accountable.
You can also go to court, but not for collection of unpaid amounts, but with a demand to recognize the employment contract as concluded. The point is that Art. 16 of the Labor Code of the Russian Federation indicates that labor relations arise from the moment when the employee was allowed to perform work - even if the employment contract was not concluded, or was concluded with violations. In this case, the problem will be not so much in proving the fact of work, but in the specific amounts of a gray or black salary.
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.
A complaint can be submitted either by mail or in person. If you call the prosecutor's office, you can find out how and when such a reception is carried out even from the prosecutor himself. Assistants are available on any working day.
It is much more effective to contact the labor inspectorate. This can be done either in the traditional way, by writing an application and giving it to the employee on duty, or using online services. In the latter case, you will still have to fill out an application on paper - but the inspectors will begin to act earlier.
If it is proven that people work at an enterprise or individual entrepreneur without employment contracts, he will face a fairly significant fine. Therefore, it should be noted that the threat to contact the inspectorate can be used in negotiations with the employer.
How effective are the methods?
And now a little about the sad thing: unfortunately, proving the amount of a gray or black salary in court is an extremely complex and dreary process.
The fact is that it is still relatively easy to prove the fact of non-payment - problems begin with specific amounts. The burden of proof here lies with the employee, and if the gray part of the salary is not paid, it may turn out that it will not be possible to convince the judge. In this case, you will have to be satisfied with receiving only what is due under the employment contract.
Lawyers recommend: If you have problems due to unpaid wages, find a lawyer who specializes in labor relations. In this case, the chances of achieving justice are much higher than if you act on your own.
Munasipova Nina Viktorovna(08/26/2014 at 12:28:39)
Hello.
Before complaining to any authority, try writing a claim to the employer demanding payment to you (send by registered mail with acknowledgment of receipt). In the letter, indicate these articles of legislation and, accordingly, violations on the part of the employer:
1) Article 16 of the Labor Code Grounds for the emergence of labor relations RF between an employee and an employer also arise on the basis of the employee’s actual admission to work with the knowledge or on behalf of the employer or his authorized representative in the case where it was not properly formalized.
2) Article 67 Labor Code Form of employment contract An employment contract that is not formalized in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his authorized representative. When an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date of the employee’s actual admission to work, and if the relationship related to the use of personal labor arose on a civil basis, but was subsequently recognized as labor relations - no later than three working days from the date of recognition of these relations as labor relations, unless otherwise established by the court.
3) Article 140 of the Labor Code Calculation terms upon dismissal Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.
In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.
What is the liability for violation:
Article 236 of the Labor Code. Financial liability of the employer for delay in payment of wages and other payments due to the employee
If the employer violates the established deadline for payment, vacation pay, dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in the amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time Federation from unpaid amounts on time for each day of delay starting from the next day after the established payment deadline up to and including the day of actual settlement. The amount paid, local regulations or employment contracts. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault.
Article 5.27 of the Administrative Code. Violation of labor and labor laws
1. Violation of labor and labor protection legislation -
shall entail the imposition of an administrative fine on officials in the amount of one thousand to five thousand rubles; for persons carrying out activities - from one thousand to five thousand rubles or administrative suspension of activities for a period of up to ninety days; for legal entities - from thirty thousand to fifty thousand rubles or administrative suspension of activities for a period of up to ninety days.
2. Violation of labor and labor protection legislation by an official who was previously subject to administrative punishment for a similar offense -
entails disqualification for a period of one to three years.
Write that if within 10 days they do not make the required settlement with you and do not pay the amount due, you will write to the management that he is violating labor laws, to the tax office, that he does not officially register employees at work and thereby evades, and also go to court, and you will ask to pay settlement and interest for late payment in accordance with Article 236 of the Labor Code. And then the employer will begin to have problems, which may result in fines greater than the amount that he owes you.
The point of the claim is that if the employer does not want to have problems with the above authorities, he will still deign to pay you the money you are entitled to. If he ignores it, write a complaint against him to the prosecutor’s office, the tax office, or go to court to establish the fact that he works for this employer and collect it from him. And evidence of work for this employer may be testimony of witnesses, etc.
Unfortunately, in modern conditions it is impossible to exclude a situation in which you cannot receive payment for your work. It is especially problematic to resolve the issue when you were not officially employed. What to do and what ways there are to force an employer to pay you a salary - let’s try to figure it out in this article.
Tricks of employers
What tricks can employers resort to to avoid having to pay the money an employee earns? Sometimes these are outright fraudulent schemes; in some cases, the employer tries to explain the delay in payments by temporary financial difficulties at the enterprise.
As you understand, the reasons can be far-fetched, and their variety is constantly growing. Let's look at several real examples in which employers either do not pay wages at all or pay significantly less than the previously agreed amount.
According to staffing schedule
You are in a job search. You respond to a vacancy posted in the media or on the Internet. After a successful interview, you are hired. To do this, you need to write an application, which may include the wording “with salary, according to the staffing table.”
On the day you receive your first salary in this position, its size may be unexpectedly small. The secret is that they paid you a monetary reward in full accordance with the salary provided by the company's staff. And when the advertisement was submitted, the salary was deliberately increased to attract candidates. They will simply tell you that there was a mistake in the ad.
Around the coefficient
Another opportunity for an employer to significantly reduce the salary of its employee is the use of coefficients for the probationary period.
During the hiring process, they will simply “forget” to warn you that for 1-2-3 months, while you, according to the employment contract, are on a probationary period, your salary is a certain percentage of the salary of a full-time employee. Depending on the impudence of the employer, this reduction factor in actual payments can vary from 10 to 50 percent.
Captured by the crisis
In an environment of financial and economic crisis, enterprises justify delays in payment by the fact that they do not have the funds to do so. Perhaps the company did not receive the planned profit, or the transaction turned out to be unprofitable. Employees are asked to “be patient” for a month, then two...
There are real cases when a person worked for more than one month, hoping to get his earned money. When such a situation arises at an enterprise where you have worked for a long period, you can wait a few months. But if this becomes the norm, and, moreover, you have only recently started working in a new place, then it is better to start looking for another job.
Unofficial employment
Studying the problem of delay or refusal to pay wages if you worked unofficially, you need to start with the fact: Russian legislation does not provide for such a thing as “unofficial employment.”
Despite this, practice shows that relations between an employer and an employee without signing an employment contract are quite common. This negatively affects, first of all, the employee, depriving him of the social guarantees and rights provided by law.
The signing of an employment contract between an employer and an employee is provided for in Article 67 of the Labor Code of the Russian Federation. The letter of the law requires the employer to draw up this document, which stipulates the relationship between both parties.
In the case when you work unofficially, the document is not issued. Also, the company will not have any documents about you (an order for enrollment, etc.), and the corresponding entry will not be made in the work book. You will be paid a “black” salary, without paying taxes and all necessary contributions to social funds.
How to get your salary paid
What to do in a situation where you worked without registration and did not receive a salary? Are there real mechanisms that can force the employer to pay the money earned?
Article 67 of the Labor Code contains a provision according to which even an undocumented contract can be considered concluded in a situation where the employee began working and the employer gave his consent to this. In this case, you will have to fight for your rights with the help of such structures as the prosecutor's office and the labor inspectorate.
First of all, you will have to provide strong evidence that you actually worked for this company. There will be certain difficulties with this, since there is no signed employment contract. Once you file a complaint describing the work without proper documentation, an appropriate investigation will be initiated.
Based on the results of the investigation, the employer will have to be held accountable in accordance with current legislation. In this case, you have the right to demand that the employer pay you the agreed amount of remuneration for the work done.
How to prove the fact of work
In such a difficult situation, the most difficult thing may be to collect evidence that can confirm the fact that the person actually worked and performed certain functions in the interests of the employer. This need will arise if the relevant government agencies are closely involved in considering your complaint.
What to do in such a situation? First of all, the testimony of witnesses will be useful. These can be not only former colleagues and employees of the organization. The witness could be a client or business partner of the company you worked for.
Additionally, you can present documentation that you worked with in this company.
If there are documents processed by you personally, or with your signature, they will certainly defend the fact that you really worked in this organization. Any acts, invoices, even a printout of calls from your cell phone, if it can indicate that you regularly had contact with employees or management of the company.
Features of unofficial work
To be fair, it should be noted that informal work has both positive and negative sides. Negative:
- There are no guarantees of payment for sick leave and maternity leave, there is a high chance of being left without bonuses and additional payments.
- If you recycle, you may also not receive the co-payment due;
- High risk of delayed wages, or even refusal to pay.
- When you receive a “black” salary, you do not accumulate your work experience; it is not taken into account when calculating your pension.
- If you suffer a work injury, you may be left without the required insurance payment and compensation.
But there are also positive aspects to informal employment:
- By paying “black” wages, the employer, and therefore you, saves on tax payments.
- Having a “black” salary, you will not pay alimony or other court-ordered payments from it.
- Working unofficially, you cannot be held legally responsible for the results of your work.
- There is a high probability that the “black” salary will be significantly higher than what you will receive if you officially apply for a job.
Assessing all the pros and cons, everyone must independently decide whether to work under an employment contract or informally. It is important to assess all risks and foresee the possible consequences of the decision made.
Now there is active propaganda of the need to choose an organization with “white” wages. However, there are still employers who refuse employees partial registration, when the salary is divided into the official and managerial part.
Also, a significant part of people agree to receive their salaries completely unofficially and remain socially unprotected. Sometimes employees are faced with a situation of non-payment of monetary remuneration and the question arises: what to do. Let's try to figure it out and, if possible, give advice.
About informal employment and its consequences
In a normal situation, the organization receiving the employee enters into an employment contract with him (Article 67 of the Labor Code of the Russian Federation), which specifies the position, work schedule, and the employee’s right to leave. In addition, when an employee is faced with the fact that his salary has not been paid, he can rightfully turn to the help of the labor inspectorate or the prosecutor's office.
When an employee is hired unofficially, this actually means that no contract is signed with him, no hiring order is issued, and there are no deductions for the tax and pension fund. An entry in the work book is also not made, as a result of which the employee loses his seniority. If you don't receive money, the question arises: where to go?
In addition to non-payment of due wages upon dismissal, the employee faces the following negative consequences:
- such an employee is forced to be sick at his own expense;
- maternity leave for unemployed employees is not paid, and their job after maternity leave will also be lost;
- length of service, as mentioned above, will not be taken into account when determining the size of the pension;
- an injury at work will not be the basis for an employee to receive monetary compensation;
Positive aspects of informal employment:
- an employee without employment is free from taxes and alimony;
- there is no legal liability to the employer;
- financial liability to the organization is difficult to prove (an employer is unlikely to sue an unofficial employee);
- unofficial remuneration often exceeds the average market offer.
Signing an employment contract is the responsibility of the organization’s management.
If a violation of labor legislation is detected, the employer may be fined and its activities suspended (Article 5.27 of the Administrative Code).
In addition, for such a violation, the manager faces criminal liability (Article 199.1 of the Criminal Code of the Russian Federation) - imprisonment for up to two years.
What can you do if you fail to pay?
A lot of forums, if you search, are full of questions: “I work without a work book, I decided to leave, they haven’t paid me the money, what can I do?” Or these may be questions related to the fact that they do not pay money and are asked to wait.
However, based on Art. 67 of the Labor Code of the Russian Federation, labor relations are recognized as formalized when the employee begins to perform labor functions with the knowledge of the head of the organization.
The answer to the question of where to go if wages are not paid without an employment contract can be answered: to the labor inspectorate and the prosecutor's office. Of course, this will require more strength and patience from you than if the employment relationship were secured by a contract. When a person worked unofficially, it is necessary to prove his actual cooperation with this employer.
By showing persistence, you can achieve a prosecutorial inspection and a labor inspector visit to the employer. Then the manager will be held accountable and obligated to pay everything due to the employee.
When it comes to massive non-payments, it makes sense to complain as a whole team by submitting a jointly drawn up statement.
How to collect evidence?
Anyone working informally needs to understand that he is obviously taking a risk by agreeing to accept such cooperation. However, it is possible to receive wages from an unscrupulous employer.
This will, of course, require witnesses who will confirm that the person worked daily at such and such an address. For proof, clients of the organization who interacted with those who were not paid their salaries can be brought in.
Documentation can be very important evidence. An employee working without an employment contract will need to painstakingly collect all available documents that bear his signature. If there is written evidence, the inspection authorities will be required to accept the complaint. The presence of a person’s signature as a representative of the organization is strong evidence of his actual work in the organization.
It would be ideal if in some documents you find how much your earnings are - in this case it will be easy to establish what the amount of unpaid funds is.
So, we can conclude: if an unemployed employee has not been paid money, then there are ways to restore justice, but it will be more difficult to collect the evidence base.
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