Unofficial and fictitious employment - concepts, advantages, responsibility

General information about a fictitious employment contract

Forgery of documents entails criminal liability.
Therefore, if an employee or boss decides to falsify a contract, the law will be violated. This fact can be identified by an individual or legal entity. However, it is not enough to notice a fake; you will need to prove it. Important! In general, there are certain reasons why an employee would want to voluntarily change an agreement. For example, he wants to increase wages, change his rights and obligations, or adjust the validity period of the document.

It also happens that a citizen completely creates a new contract if he has access to the internal database of the enterprise. In this case, it will be more difficult to prove the violation.

But it also happens that an organization creates a fake agreement during employment. It will be considered, by law, void in certain situations. In particular, we are talking about the case if a person has not even seen the document, but his signature is there. Then you can be sure that the contract is without the participation of a new employee.

Also, the document will be considered invalid in the following cases:

1. The person signed the document under the influence of threats, violence and deception.
2. The contract was concluded on extremely unfavorable terms for the employee due to a combination of difficult circumstances.
3. The agreement is imaginary. That is, it has no legal consequences. As an example, a citizen supposedly decides to get a job, but in fact does not go to work. He is only listed as an employee, but his superiors receive the salary instead of him and dispose of it without permission.
4. The citizen has not yet turned 14 years old. According to the law, no labor relations with him are possible.
5. The person is 14 years old, but did not provide parental consent during employment.
6. Hiring a person with another citizenship, for example, Ukraine. However, there is no work permit in the Russian Federation.

By the way, only some conditions can be invalid. Namely, those that worsen the employee’s position in comparison with the collective agreement or legislation, or are discriminatory in nature. As a rule, this problem can be solved if such conditions are corrected. Then there will be no need to terminate the business agreement.

Common cases of penalties for illegal employment of foreigners and the amount of payment

The migration registration rights established by law fix the amount of penalties and other methods of punishment not only on the employer of migrants, but also on the illegal immigrants themselves. Moreover, the amount of monetary penalties and other measures are imposed on both individuals and legal entities, depending on who employs the citizen of another country.

Consider the following reasons that lead employers to punishment:

1. Failure to provide the required package of documents confirming the legal stay of a citizen on the territory of the Russian Federation.
2. Violation of labor rights and laws.
3. Employment without drawing up a contract or providing job responsibilities.
4. Failure to comply with the criteria specified in state regulatory requirements for labor protection.
5. Unestablished order in the workplace, lack of assessment.
6. Employment of a foreigner without identity documents permitting work activity.
7. Lack of provision by the employer of personal protection consistent with labor safety regulations.

These factors are more popular in applying penalties to migrant employers. By complying with the labor legislation of the Russian Federation, companies or entrepreneurs will be able to avoid various penalties and prevent the possibility of employment of persons living illegally in the territory of the Russian Federation (who do not have citizenship).

How to check authenticity

Currently, various measures are used to identify fictitious employment. The inspection can be carried out by a government agency responsible for monitoring the activities of companies. Or the employee will want to identify violations in the agreement. To make sure that the document is not fictitious, you can use the special service of Rostrud. The Federal Service for Labor and Employment offers to check the contract online.

Considering the fact that individuals often do not know all the provisions of the Labor Code of the Russian Federation, it will be useful for them to use this service. Employers can also review the completed document to ensure it is correct. If it turns out that any conditions are contrary to the law, it is worth changing them.

Currently, illegal cases related to employment contracts are being actively prevented. The Labor Protection Inspectorate can inspect any company to identify violations. If they are detected, then a certain measure will be applied. The company may receive a warning, and in the worst case, it or the employee will face criminal charges.

Reasons for imposing penalties on the employer this year

Failure to comply with Russian legislation in the field of migration

1. Penalties for hiring a foreign citizen without a patent/state permit.

Illegal labor implies the illegal organization of labor activity by a migrant in the territory of residence of the employer, without first obtaining a patent or state permit or citizenship. The company/entrepreneur will be fined for hiring illegal immigrants.

1. Invalidity of documents (expired validity).

Official registration of a migrant for work places responsibility on the employer for the provided documentation with permission to stay and work on the territory of the Russian Federation. If the document is expired or illegally executed, a fine will be imposed on the employer. In simple words, the one who provides a workplace for a foreigner must monitor the expiration date of his documentation.

Example 1 : when applying for a job, a migrant provided all the necessary documents, after which the organization officially employed him. After a month, the work permit became invalid, which the company did not monitor. During a routine inspection, the organization was fined for illegally hiring a foreigner.

Example 2 : a foreigner was hired under a patent. When the date for paying the tax under this document arrived, the employed person did not make the required payment, after which the patent became invalid and was completely revoked.

It is worth noting that neither the employee nor the employer is notified about this problem. Therefore, a foreigner can work without changes without notifying management about the missed payment. Violations are detected only during an inspection by the Federal Migration Service, after which the company is penalized for the illegal labor activity of a foreigner.

The employer needs to monitor the regularity of tax payments by an employed foreigner. A single delay may result in invalidation of the patent, which will result in penalties for the employer. Additionally, it is important to monitor the validity periods of all documents provided by the foreigner. If an invalid period is discovered, large monetary penalties are imposed not only on the worker, but also on the organization (individual).

1. Work activity incompatible with existing professional qualifications.

A patent/work permit provides access to a specific type of professional activity. If a foreign citizen is hired for a position opposite to the profession specified in the document, the employer will be fined for the foreigner’s illegal work. Therefore, the employer has the right to employ a migrant only in those positions that are specified in the permit. In case of this violation, the labor inspectorate carries out a large monetary penalty for each foreign worker employed. Penalties are imposed on individuals and legal entities, based on who employed the foreign worker.

Current amounts of penalties for illegal labor activities by a migrant:

• Individual – from 5,000 to 7,000 rubles;
• Legal entity – from 400,000 to 1,000,000 rubles, additional suspension from work for a period of two weeks to 90 days;
• Official - from 35,000 to 70,000 rubles.

1. Illegal use of labor.

Before hiring a citizen of another state, any employer must obtain a permit to attract and employ foreign citizens. In case of non-compliance with current legislation and further illegal activity, representatives of labor legislation collect money from the employer for illegally recruiting migrants to work.

The amount of payment for an official for illegal recruitment varies from 35,000 to 70,000 rubles, and for an entrepreneur – 5,000-7,000 rubles. For legal entities, more stringent measures are provided - a fine of up to 1,000,000 rubles with suspension from work for 2 weeks or 90 days.

1. Inconsistency with the FMS.

When registering the employment of a foreign citizen, dismissal, re-registration, an individual or an organization is obliged to notify the migration service about the drawing up (termination) of an employment, civil law contract for the foreigner’s labor activity. If the employer does not notify the FMS of the actions taken, he is subject to a fine commensurate with the sanctions for the illegal use of labor.

Failure to comply with the provisions of the Labor Code of the Russian Federation

1. Unofficial employment of a foreigner (stateless person).

A citizen of another state can only be employed if he is officially registered with the existing staff and an employment contract is drawn up with the necessary job responsibilities stated. If this clause is violated, the employer will be fined. A foreign citizen is fined 5,000 rubles and expelled from Russia.

1. Incorrectly (fictitiously) drawn up contract.

If all sorts of errors were made in the employment contract: from an incorrect date to the absence of a signature of one of the parties, the labor inspectorate has the right to consider this document fictitious/invalid. After which, a sanction is also imposed on the company for illegally employing a foreigner or for an incorrectly drawn up document for violating the standards of the Labor Code of the Russian Federation.

Penalty amount in 2020:

• For an individual – 5,000-10,000 rubles;
• For a legal entity – 50,000 – 100,000 rubles;
• For an official – 10,000 – 20,000 rubles.

Failure to comply with labor protection requirements established by the state

If the employer has officially employed a migrant, correctly drawn up an employment contract and notified the migration service about this, he is responsible for further ensuring labor protection in accordance with the Labor Code of the Russian Federation. If the following standards are not observed, the inspectorate has the right to fine the employer.

Reasons for penalties:

1. Failure to comply with state regulations on labor protection leads to a warning or fine: individual (entrepreneur) - 2000-5000 rubles, organization - 50,000-80,000 rubles.
2. The absence of completed assessment reports of the workplace and provided working conditions also leads the employer to penalties: entrepreneur - 5,000-10,000 rubles or a warning, legal entity - 60,000-80,000 rubles or a warning.
3. Admission of a foreign worker without a medical examination, a conclusion from a narcologist/psychiatrist, professional suitability testing, training and with existing medical contraindications is subject to a fine or warning to the employer: official - 15,000-25,000 rubles, company - 110,000-130,000 rubles.
4. Failure to provide individual protection for a worker during high-risk work is subject to a fine of 20,000-30,000 rubles, and monetary penalties for legal entities in the amount of 130,000-150,000 rubles.
5. If the law is violated again, the official is fined 30,000-40,000 rubles and suspended from work for up to three years. In case of repeated violations, the legal entity is fined 100,000-200,000 rubles with the possibility of suspension from work for 3 months.

What to do if falsification is detected

Of course, preventing illegal cases related to labor relations gives positive results. However, cases of falsification still occur. That is why it is important to remain vigilant and promptly notify the necessary authorities about the problem.

You can contact the Labor Protection Inspectorate, the prosecutor's office or the judicial authority. However, if it is necessary to verify documents or the company itself, you should not go straight to court. There should be evidence, as well as witness statements, so that the illegality of the actions can be confirmed. Then it will be possible to hold violators accountable and achieve punishment for falsification.

If a person discovers some inconsistencies in the employment contract, then you can first discuss this point with your superiors. Perhaps it will be possible to resolve everything peacefully, and then the case will not go to court. But if you personally were unable to solve the problem, then all that remains is to contact the above authorities.

What responsibilities are provided?

If it is proven that the law has been violated, then punishment will follow. First of all, criminal liability will arise for forgery of documents. In this case, a fine of up to 300,000 rubles, or correctional labor, or arrest for up to 4 months is imposed.

But punishment may also occur under other articles. Because falsification often entails other violations. Let's say the boss drew up an imaginary contract and received money for a non-existent employee. In this case, he can be charged under Article 160 of the Criminal Code of the Russian Federation, which concerns embezzlement and theft of other people's property using his official position.

That is why it is impossible to say unambiguously what punishment will be applied. However, the attackers will definitely be held accountable if the violation is proven. Therefore, you should not remain silent about falsification; you should immediately contact the inspectorate, prosecutor’s office or judicial authority.

Fictitious employment and responsibility for it

Legal responsibility of the employer for fictitious employment of employees At the legal level, the essence of fictitious employment of a potential employee is not regulated, therefore such actions are often regarded as fraud by the parties to the labor relationship and can be punished in accordance with the Criminal Code of the Russian Federation. Thus, for proven fictitious employment, punishment is provided in the form of the return of funds received in such an illegal way in full, as well as a fine (in accordance with Article 159.2 of the Criminal Code of the Russian Federation). If an act of fraud and theft of public money is recorded through fictitious employment of employees, then, according to the norms established by the Criminal Code of the Russian Federation, the employer will be held criminally liable, up to and including imprisonment (Article 201 of the Criminal Code of the Russian Federation).

Why use this scheme?

Referring to diagrams is relevant for situations where work is only needed in documentation.

Here are examples of such situations:

1. Women and girls receiving maximum benefits. Usually they are in position.
2. Parents who are required to pay child support and do not have a suitable official income.
3. Those who plan to get a mortgage, but cannot obtain income certificates.
4. Chiefs in state and municipal institutions with access to employee salaries.
5. Other persons for whom official status without real work is important.

About the advantages and disadvantages

It is not for nothing that fictitious schemes have become widespread: they are beneficial for employees and employers.

But there were also significant drawbacks:

• there is a high probability that the scheme will be exposed;
• bringing to real responsibility if the crime is solved;
• There is no real experience in the position held.

The advantages of this type of employment for the employee and the employer

When employing a citizen without a contract, an employer has a number of positive bonuses:

• tax minimization. The fact is that most of the taxes paid by the employer to the state treasury are calculated from the wage fund of the employees employed by him. The logical conclusion: the smaller the tax base, the smaller the amount to be paid;
• lack of personnel paperwork;
• lack of responsibilities and obligations towards an unofficially employed citizen. For example, it is not necessary to ensure labor safety; it is possible not to pay the employee the full amount of the promised fee.

If the first item from the list can somehow justify (from the employer’s point of view) unofficial employment, then the last item is very doubtful and remains entirely on the conscience of the employer.

A citizen who deliberately seeks informal employment also benefits from this:

Please note: If the employer does not want to enter into an employment contract when hiring, the citizen has three options - insist on concluding the contract, quit, or continue working, simultaneously collecting evidence of the employment relationship, so that in the event of a conflict, he has supporting documents on hand. Read more on our website

• if the employee has any financial obligations, for example, alimony payments, payments under a writ of execution, etc., he may not transfer these amounts from his unofficial salary;
• the opportunity to earn additional income in your free time from your main job;
• the opportunity to earn money while retired without losing social benefits;
• lack of full financial responsibility of the employee;
• the opportunity to receive a larger sum of money than with official employment for performing the same amount of work. A simple example: an employer can spend 1 thousand rubles on installing software. By hiring a programmer unofficially, he will pay him this 1 thousand rubles. Hiring the same employee under a fixed-term employment contract, he will be forced to pay taxes on the allocated thousand, this, according to data for 2020, will be 43.2% (if the employer’s organization is not included in the preferential list of taxpayers). It turns out that from a thousand rubles 432 rubles will be spent on taxes, which means that the employer will be able to pay the programmer only 568 rubles instead of a thousand. In this case, it is beneficial for the employee to do the work without registering for employment.

Fictitious employment: methods

There are several ways to fictitiously obtain a job.

But this type of behavior is acceptable when the leader is a close friend or relative of a citizen. After all, the manager is entrusted with obligations associated with all benefits provided to the employee.

Sometimes such workers are hired by those who manage state or municipal institutions. Then there is a high probability that the employer will not only not pay, but will also appropriate the remuneration due to the citizen.

Managers themselves can offer options for fictitious employment - when in fact a person is on the staff, but in practice does not fulfill his duties.

Sometimes this scheme is adopted in collaboration with persons who have received one of the disability groups. The boss then appropriates the money intended for the subordinate. And the employee continues to receive experience for calculating a pension in the future.

Fictitious employment: how violators are punished

The citizen was officially hired. If he does not actually work for the company, it is a fictitious employment. How will the employee, HR officer and manager be punished for this? The Labor Code of the Russian Federation defines the principles of employment in the Russian Federation. The law obliges the employee to sign an employment contract before he begins to perform his labor functions, familiarize him with the PVTR, provide instructions, etc. The company pays taxes, insurance payments, etc. for the employee. If the employee has signed the documents and his salary is transferred on time, but in fact he does not work for the company, this is a fictitious employment. A similar method can be used by a company employee who has the ability to influence someone’s employment and “helps” a relative or friend. For example, if he works in the HR department. Due to such employment, the interests of the employer suffer, since the company incurs real costs. With fictitious employment, the interests of the company suffer. Fictitious employment means that a person was given a job according to documents, but in reality he does not appear at the company. He is formally listed in a regular position and does not perform his duties. However, the employer not only pays wages, but also makes all the necessary contributions for the employee to the Pension Fund, Social Insurance Fund, and other funds. As a rule, such employment is associated with an attempt by citizens to obtain an employment record or enrich themselves at the expense of the company. The personnel officer who hired such an employee and the employee himself commit a criminal offense. Depending on the corpus delicti and accompanying circumstances, actions are qualified under one or another article of the Criminal Code of the Russian Federation, for example, under articles 159, 160, 285, 292. You will have to pay a criminal fine of up to 500 thousand rubles, and in some cases face imprisonment of up to 6 years . Fictitious hiring is organized to increase seniority. Many positions require a certain amount of work experience. Therefore, some employees try to falsify this information about themselves. For example, an employee wants to become a lawyer, but does not have the required four years of experience. The citizen negotiates with his friends so that they register him in their organization and make an entry in the labor record. He does not work as a lawyer, but according to the documents his experience is increasing. The company really pays for non-existent employees. A company employee who makes decisions about hiring can abuse his position and “hire” relatives or acquaintances. These citizens receive a salary, but do not perform actual work. In this situation, the company incurs unjustified expenses: it pays salaries and makes the necessary contributions to the Pension Fund and other organizations. If such employment is carried out with the permission of the company’s management, this can be done so that according to the documents the organization’s staff is larger than it actually is. For example, a company wants to win a tender, but the customer requires that the supplier have a staff of at least a certain number of people. An unscrupulous supplier attracts fictitious workers to increase staff. Responsibility for fictitious employment depends on the circumstances Responsibility for the fact that a personnel officer has organized fictitious employment for a friend or relative will depend on the circumstances and consequences of the violation. If this was done without the knowledge of the employer, the company will demand compensation for damages. You will have to bear criminal liability and also return the money. If a company artificially increases its staff and employs those who will not actually work, this entails administrative liability, as well as criminal liability for management. For example, the organization will be included in the register of unscrupulous suppliers or the tax authorities will recognize it as a shell company. The director will have to answer to the business owners or for waste of funds if the organization receives funding from the budget. Courts punish for fictitious employment of managers and personnel workers If the employer discovers that one of the employees has abused his official position, he can be held accountable for fictitious employment. Let's look at examples of how this happens. The boss compensated for the damage for the formal employment of her common-law husband S. She worked as the head of the Municipal Budgetary Institution “Centralized Accounting Department of the Municipal District “Verkhnevilyuysky Ulus (District)”. She abused her powers and issued a fictitious job application for her common-law husband. He was in a correctional facility and could not perform his official duties. Nevertheless: - he was assigned to the position of driver; - they made an entry in the work book that he worked as a security guard and janitor in another municipal institution; — calculated his salary and regularly transferred money to him. Unreasonable payments caused damage to the budget of the municipality. The court found S. guilty of committing a crime under Part 3 of Art. 160, part 2 art. 292 of the Criminal Code of the Russian Federation. She was sentenced to imprisonment for 4 years, suspended for 2 years, with a fine of 10 thousand rubles. In addition, S. was banned from holding administrative positions in government bodies for 3 years. In addition, the prosecutor's office filed a civil lawsuit against the defendant demanding compensation for the damage caused. Since S. deliberately committed theft and embezzlement of funds, the court granted the claim (decision of the Verkhnevilyuisky District Court of the Republic of Sakha (Yakutia) dated April 29, 2016 in case No. 2-217/2016-M-197/2016). Judicial practice often connects the facts of fictitious employment with fraud. When personnel department employees make entries in the employment record of an employee who does not actually work for the company, or pay wages, they are fined for fraud. For example, the head of the hospital’s personnel department hired her daughter to the position of deputy head physician. We prepared an order and drew up an agreement. The time sheet allegedly recorded the time worked and calculated the salary. At the request of the head physician, a criminal case was opened. The boss was fined 230 thousand rubles. under Part 3 of Article 159 of the Criminal Code of the Russian Federation (sentence of the Liskinsky District Court of the Voronezh Region dated December 15, 2016 in case No. 1-K-66/2016). In another case, a personnel officer was fined 20 thousand rubles for fraud. under Part 1 of Article 159 of the Criminal Code of the Russian Federation. An employee of the HR department registered a fictitious employment in favor of a relative. She was considered to have length of service and was paid benefits. The relative was sentenced to 130 hours of compulsory labor (sentence of the Ulyanovsk District Court of the Ulyanovsk Region dated 06/07/2011 in case No. 1–27/2011). Link to full version: https://www.tspor.ru/article/2245-qqe-17-m5-29-05-2017-vozmestit-ushcherb-za-fiktivnoe-trudoustroystvo Labor disputes. **************************************** **************************************** **************************************** ******************** And one more thing for you: We will give recommendations on liquidation of companies and bankruptcy: Several ways to close companies. Risks of each method. If you do not want: - to completely lose control over the situation with the liquidation of the company; — pay penalties, taxes and fines; — answer very unpleasant questions from the prosecutor’s office, the Federal Tax Service and other government agencies; - be brought to criminal liability; - to pay, including with personal property, then contact lawyers for advice. If your company has no debts, only voluntary liquidation of the company. If there are debts - only Bankruptcy. We will help you! Our lawyers will also advise you on what safe alternative methods of liquidating a company can be used to avoid wasting time and unforeseen risks. The materials we have prepared will tell you how and in what (legal!) ways to act in each specific situation *** Recommendations for liquidating companies: Several ways to close companies. Risks of each method. And so: Bankruptcy of companies Various reasons can lead to the bankruptcy of an organization - the enterprise has become unprofitable, the financial crisis has led to the fact that the owners cannot pay creditors or the bank. Bankruptcy of an enterprise is a legal way to get out of business with minimal losses. - Real bankruptcy. This type is characterized by the inability of the enterprise to restore its solvency due to real capital losses. The company is declared insolvent by the arbitration court in accordance with bankruptcy law. Bankruptcy of an organization occurs due to ineffective management of the company. -Temporary (conditional) bankruptcy. It is caused by an excess of the company's balance sheet assets over its liabilities or a large amount of receivables. In this case, with the help of administrative and external management procedures, it is possible to restore the solvency of the enterprise. -Intentional (intentional) bankruptcy. A situation when the management of an enterprise deliberately brings it to bankruptcy, stealing its funds in various ways. Deliberate bankruptcy of a legal entity is prosecuted by law. -Fictitious bankruptcy. Knowingly false declaration of insolvency in order to obtain deferment and installment payments from creditors. Those guilty of fictitious bankruptcy and concealment of assets to pay off debts are also prosecuted. The benefit of carrying out a company bankruptcy procedure for the Debtor is the write-off of the company's debt to creditors and, as a rule, the liquidation of the organization, because In our country, the practice of financial recovery of enterprises is practically absent. However, going bankrupt is not so easy. This requires careful preparation for bankruptcy, which is carried out by our specialists (lawyers, accountants, arbitration managers), namely: - a specialist study of the activities of the Debtor’s organization for the previous 3 years with the issuance of a preliminary analysis of the possible consequences for the Debtor in bankruptcy, - elimination of unfavorable factors in activities of the Debtor (restoration of financial statements, primary documents, etc.) - in case of bankruptcy of the debtor, we necessarily introduce only our own arbitration manager, because This is the only way to control the bankruptcy procedure. — during the bankruptcy process, we do not allow the person controlling the Debtor to be brought to subsidiary and criminal liability, but we minimize such liability, and in most cases to zero. Other schemes: 1. Sale of the company or change of founders and directors Selling the company to third parties or changing the participants and directors to nominees is the cheapest and most unreliable way to get rid of the company. We recommend using this method only as an intermediate method in combination with others. We categorically do not recommend using only this method, since from March 31, 2015, this threatens criminal liability. Since March 31, 2020, Articles 173.1., 173.2 of the Criminal Code of the Russian Federation have been in effect in a new edition (Federal Law No. 67-FZ of March 30, 2015) and provide for criminal liability for the use of dummy persons as participants and/or executive body of the company. Pros: 1) the cheapest method; 2) the fastest way (4 weeks). Disadvantages: 1) The LLC is not closed (it is not excluded from the Unified State Register of Legal Entities), but continues to exist. You can make a claim against her. Including the period of activity of the previous director; 2) high risks: subsidiary (i.e. personal property) liability of former participants and directors, lawsuits, criminal liability under Art. 173.1 and 173.2 of the Criminal Code of the Russian Federation. To reduce risks, it is recommended to draw up a purchase and sale agreement for a company through a notary with a foreign citizen and/or a foreign management company in the executive body. 2. Change of founders and directors + change of address (change of region) Recently, the procedure for changing the address/region has caused quite a lot of difficulties. The tax office is trying to counteract this method of closing an LLC, especially for companies with budget debts. Moreover, problems can arise both at the stage of transferring a company to another region (repeated submission of documents for transfer, increase in notary costs), and after successful registration of a change of address. In judicial practice, such cases have become frequent: after a certain period of time, the Federal Tax Service Inspectorate conducts an on-site inspection at a new address and, not finding confirmation of the location, returns the organization to the old address. That is, after spending a lot of money, you can come to the same result you started with. 3. Reorganization by acquisition or merger As a rule, a company being liquidated is merged with a company from another region. Upon successful completion, your company ceases to exist and is excluded from the Unified State Register of Legal Entities. But there are several pitfalls that are practically not written about. I will briefly list 3 main problems that you may encounter. 1) Problematic companies in the same connection with yours. Your company may join a successor company in a group with other companies completely unknown to you. Their number can reach 20-30. This means that if problems arise with one of the companies being merged, the entire bunch will suffer. This will attract the attention of the tax inspectorate, which may initiate an audit with bad consequences. 2) Tax claims within 3 years after joining. Joining in conjunction with other companies can be successful. Your company will be excluded from the Unified State Register of Legal Entities. But over the next 3 years, claims may arise against one of the reorganized companies that were in connection with yours. Then the Federal Tax Service can cancel the reorganization, restore the company to the Unified State Register of Legal Entities and initiate an audit. 3) Members of your company become members of the successor company. There are cases when some legal entities. When merging, firms leave the participants of the liquidated company as participants in the legal successor. That is, your company is excluded from the Unified State Register of Legal Entities, but the participants of your company move to the legal successor. Along with a lot of other strangers with their own baggage of problems. Pay attention to these points. Ask your lawyer questions to avoid surprises in the future. 4. Reorganization of a company by joining “one for one” One of your organizations joins the legal successor without the unnecessary proximity of other companies. This is a safer way. Pros: 1) risks associated with other companies in conjunction are eliminated; 2) such a connection does not raise suspicions from the Federal Tax Service, therefore it goes a little faster. An additional safety net may be the subsequent official closure of the successor company. With this procedure, risks are minimized; there is no tax audit of your company. The possibility of canceling the closure of the LLC is also excluded, since the legal successor company has been officially closed in compliance with all necessary legal procedures. Cons: the only drawback is the fairly high cost. 5. “Irreversible reorganization” This method is not very common today. But, in our opinion, it is completely undeserved. The reorganization procedure is the same, only the company with foreign participants and the management company as the executive body (director) acts as the legal successor. This method is safer than reorganization with the legal successor of the Russian Federation for this reason. Now the reorganization procedure can only be canceled by interviewing the current persons of the legal successor. In the case of a foreigner, this is quite difficult to do. Therefore, if all necessary actions and precautions are followed, the procedure cannot be canceled. The main point that affects the success of the reorganization is who certifies the documents on behalf of the successor to the notary and signs the necessary documents. There are 2 safe options: 1. Documents are certified abroad, apostilled and translated, then the applicant is a foreigner, but this increases the time and cost. 2. Documents are certified by a resident representative on the territory of the Russian Federation on the basis of a power of attorney, which is submitted to the registration authority, and from which it follows that this person does not have the right to conduct financial and economic activities, but is only vested with a courier function. Pros: the main difference of such an accession is that it cannot be canceled. Cons: the procedure is somewhat more expensive than usual. 6. Close an LLC through an offshore This is the closure of an LLC by registering your company as a foreign incorporation (offshore). This method is not very common, since there are certain difficulties in its implementation, but it has undoubted advantages: 1) short period of time: the whole procedure takes 3.5 - 4 weeks. 2) the risks are significantly reduced compared to the usual change of director and participants, since the offshore company that will lead your company in the future has neither branches nor representative offices in Russia. The tax authorities do not have any information about the owners of this organization. 3) when re-registering a company offshore, the tax authorities do not conduct an audit (it is possible to close the company in this way with small debts). 4) a foreign company does not have a representative office in the Russian Federation, which excludes the possibility of tax authorities requesting company documents. 5) the decision to change the head of your legal entity is made by the offshore company, which excludes the interest of the former leader in the renewal of the company. ****** The option of closing an LLC that our center offers you is a transfer of an enterprise to hired founders with the replacement of the General Director with a foreign management company, or to a foreign hired director. The bottom line is that the rights and obligations of the founders of the liquidated LLC are transferred to new founders, foreigners, a new general director and accountant are appointed. The main plus of such a closure of LLC is short terms and cost. The essence of such a translation is that, under the legislation of the Russian Federation, liability for the activities of the organization is carried by the General Director and Accountant (in financial terms), and in the specially provided cases, the founder. After the transaction of sale, or transferring the share to the company, all responsibility passes the new founder and gene. Director. You get a complete set of documents confirming that the company has passed re -registration and passed to the new owner, a foreigner. We will also help you carry out the bankruptcy procedure of your enterprise.

Informal employment of citizens: what threatens the manager?

At the level of laws, the essence of this phenomenon is practically not regulated. Therefore, actions can be regarded as fraud on either side.

If there is evidence in favor of fictitious employment, the full amount transferred to the citizen in such an illegal scheme is recovered. Additionally, there is a system of fines. An employer may be held criminally liable if it is proven that an act of fraud or theft of funds belonging to the state took place.

The provisions of the Criminal Code of the Russian Federation also apply to those violators who participated in the creation of counterfeit documents.

More severe penalties are applied to those found guilty of unofficial labor. The following types of penalties apply to violators:

1. Prohibition of work in a specific position.
2. Imprisonment for a certain period of time.
3. Involvement in forced labor.
4. A fine of at least 20% of taxes and other amounts taken from the state.
5. Recovery from the manager of all amounts that he has not paid, despite the current law.
6. Powers are suspended for 3 calendar months or more.
7. Administrative penalties in the form of fines up to 50 thousand rubles.

How to prove formal employment in court

Attention

Risks of each method. If you do not want to: - completely lose control over the situation with the liquidation of the company; - pay penalties, taxes and fines; - answer very unpleasant questions from the prosecutor’s office, the Federal Tax Service and other government agencies; - be prosecuted; - pay, including and personal property, then contact lawyers for advice. If your company has no debts, only voluntary liquidation of the company. If there are debts, only Bankruptcy. We will help you! Our lawyers will also advise you on what safe alternative methods of liquidating a company can be used to avoid wasting time and unforeseen risks.

The materials we have prepared will tell you how and in what (legal!) ways to act in each specific situation*** Recommendations for liquidating companies: Several ways to close companies. Risks of each method.

How can you prove that employment is fictitious?

First of all, official requests are sent to employees of the Pension Fund. After this, you can see whether contributions to this body are paid or not. If there are no contributions for some time, it means that the citizen’s employment is definitely fictitious.

Another option is to contact the organization itself to provide the following documents:

• employment contract;
• staffing table.

They make it easy to look at the position and the salary received. The salary should not be less than the minimum wage for a particular region.

A pay slip also helps to understand whether the work was actually performed. Typically such requests are sent to bailiffs. If they refuse, then you can send the demands to management or already draw up a statement of claim.

Fictitious employment: examples from judicial practice

There are certain recommendations that have been identified over the past few years of judicial practice.

The main thing is to conduct checks immediately after receiving confirmatory information that an offense has been committed. You will need to ask to see not only documents, but also to conduct a survey among employees about how many people actually work. This scheme is often applied to various municipalities.

Books of orders for personnel in a given case are considered separately. After this, the fact of whether the citizen actually performed any duties is carefully studied. It is good if official contracts concluded between the parties are checked.

Employees of inspection bodies interview subordinates at enterprises, who can be divided into two groups:

1. The employed persons themselves, who know about the state of things or not.
2. Other subordinates who confirm or deny the fulfillment of any duties.
3. Those who officially knew that the manager committed violations.

Unofficial employment

The labor legislation of the Russian Federation does not consider such a phenomenon as unofficial employment. Therefore, citizens hired to perform any work without drawing up an employment or civil law contract do not have obligations towards the state in the form of paying taxes, but also do not have social guarantees and other rights guaranteed by the labor legislation of the Russian Federation.

The wages of workers employed unofficially are not accounted for and taxes are not paid on them, which is why they are also called “black” wages. By the way, where to complain about the payment of black wages - read on our website here https://otdelkadrov.online/6392-plyusy-minusy-chernoi-zarplaty-dlya-rabotodatelya-rabotnika-mesta-kuda-mozhno-obratitsya-po-povodu- zarplaty-v-konverte

This type of job placement as a phenomenon gained large-scale proportions after the start of the economic crisis in 2008. This has its own logical premises, which we will discuss further.

How can a new boss understand the situation?

At first glance, it would be correct to clear the staff of employees who were hired fictitiously. The main thing is to find out about the design methods in advance.

To do this, it is important to find answers to several questions:

1. What contracts and documents does the organization have to confirm this fact?
2. Was a time sheet issued for the employee? How were wages paid, if any?
3. Did the citizen perform work duties, and is there any evidence left to support this event?

In such a situation, there is additional evidence that the citizen did not begin his duties after signing the agreement:

• memos from the head of a specific department;
• act of absence of a subordinate from the workplace.

After identifying all the circumstances, the manager himself can issue an Order, which confirms several facts at once:

1. Recognition of invalid entry in the work book.
2. Cancellation of the employment order.
3. Cancellation of an employment contract.

The documents become the reason to issue a further order. The employee’s personal file is destroyed, since any basis for storing data on a specific citizen disappears. But it’s better to issue a work book.

Fictitious employment documents

The results obtained as a result of fictitious employment are:

• A certificate of income, drawn up in accordance with the legislative model, as well as a model issued by banking institutions or any financial organizations;
• The seal of an economic entity placed in the work book, which, in fact, does not exist;
• The seal of the company/company/organization placed in the work book for which the person did not actually work;
• An employment agreement drawn up between a fictitiously employed individual and an organization;
• A certificate about the general terms of a person’s fictitious labor activity in a company in which he did not fulfill labor obligations, or which does not exist.

Is it possible to recover wages?

Wages overpaid to a citizen cannot be recovered, according to the current law. There are exceptions under certain circumstances:

• unlawful actions of the employee himself, as established by the court;
• the court found that the citizen was guilty of idle time and other types of failure to fulfill obligations;
• the appearance of counting errors in documents.

It will be possible to demand wages from fired fictitious employees only if the employment contract is cancelled. Then receiving money will be considered unjust enrichment.

Each citizen himself chooses the form of labor that has suitable properties. But it is better to abandon schemes with fictitious employment, since it conceals dangers for each of the parties.

Lack of social guarantees and arrears of wages - these are some of the problems that subordinates themselves may face with this approach. And they cannot go to court to protect their rights, since there are no official grounds for this.

The nominal director of the organization is the formal leader, while the true owner and director of the company is another person. See about this here:

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Features of drawing up and implementing an effective contract

In the Budget Address of the President of the Russian Federation dated June 28, 2012, the concept of “effective contract” was first introduced in relation to state and municipal institutions. After reading the article, you will understand what an effective contract is and be able to make an effective contract.

Based on the concept given by the President of the Russian Federation, we can say that an effective contract is nothing more than an effective employment contract with an employee of budgetary institutions, which includes a number of additional indicators.

Industry specifics

For certain areas of activity, their own regulatory documents have been developed and adopted regulating the procedure for its implementation, for example, for:

• medical organizations - order of the Ministry of Health of the Russian Federation No. 421;
• educational organizations - letter of the Ministry of Education and Science of the Russian Federation No. AP-1073/02;
• cultural institutions - order of the Ministry of Culture of the Russian Federation No. 920;
• social service organizations - order of the Ministry of Labor of the Russian Federation No. 287.

Action plans (“road maps”) for relevant areas have been developed. For example, for the sphere of education and science, the “road map” was introduced by Decree of the Government of the Russian Federation No. 722-r.

How to organize the work of transferring employees to EC

The method of concluding a contract depends on whether the person is already in a relationship with the employer or is just about to enter into such a relationship.

In the case of ongoing labor relations, an additional agreement should be concluded to the existing agreements with amendments in accordance with Art. 74 Labor Code (clause 6 of Order No. 167n). These actions are possible by agreement of the parties and are documented in writing (Article 72 of the Labor Code of the Russian Federation). The employer is obliged to inform the employee in writing two months before the planned changes and about the reasons that caused them (Article 74 of the Labor Code of the Russian Federation).

If the employee refuses, you can change the terms of the existing agreement unilaterally. To do this, the employer must indicate the reasons and justify them as inevitable. In particular, the employer should refer to changes in the regulatory framework for the remuneration system and the introduction of an effective contract system. If the employee refuses to work under the new conditions, the employment contract with him is terminated.

The mandatory program introduces new indicators and criteria for assessing the performance of employees, and this leads to changes in wage conditions and clarification of job responsibilities. These facts indicate the inevitability of changes to the employment agreement.

If an employee is hired for the first time, an agreement is signed with him in the format recommended in Order No. 2190-r.

The main innovations, compared to the terms of the employment agreement, are:

• adjustment of wage conditions (establishment of compensation and incentive payments);
• clarification of the employee’s responsibilities, bringing them into line with the introduced professional standards;
• inclusion of established measures of social support for employees.

The provisions of the contract must be based on the provisions of Art. 57 of the Labor Code of the Russian Federation and contain all the positions specified in this article.

What is a forgery of an employment contract?

As a rule, an employment contract is forged either by the employee or his employer. The main goal is to use such a document in accordance with its purpose. Specific motives for counterfeiting may be different, in particular:

• confirmation of the existence of an employment relationship;
• creating evidence of an employment relationship that did not actually exist;
• changing the terms of the employment contract to a more advantageous direction for oneself and (or) to a disadvantage for the other party;
• error correction.

An employment contract as the subject of an offense (crime) is a document (the medium and its contents) that is forged.

The fake may include the following:

• production (drawing up) in whole or in part of a fictitious document;
• erasure;
• addition;
• correction of information;
• signature forgery;
• certification with a fake seal.

Thus, the entire document, its individual details, text, words, signature, etc. turn into ones that do not correspond to reality (false, fictitious). An employment contract may be fictitious insofar as it should not have been drawn up in principle (there was no employment relationship). Or it may be fake due to changes in its content. The method of forgery does not play a special role. The very fact of drawing up a completely or partially fictitious employment contract is important.

Procedure

The procedure for introducing an effective contract may consist of the following activities:

1. Conduct an analysis of existing labor agreements with employees to determine their compliance with the requirements of Art. 57 of the Labor Code of the Russian Federation and order of the Ministry of Labor of the Russian Federation No. 167n.
2. Make changes to the wage regulations.
3. Clarify the employee’s job function and terms of remuneration.
4. Develop a form of contract (additional agreement to the existing one) with employees based on the form of an exemplary employment contract using indicators and criteria for the performance of the institution’s employees.
5. Approve the amended job descriptions.
6. Notify employees of changes to the terms of the current contract.
7. Conclude additional agreements with employees.
8. Conclude contracts with newly hired persons using developed forms.

Compliance with the formalities described in the article when switching to efficient work in budgetary institutions will allow you to avoid labor disputes, including in the courts, and also to quickly switch to new payment methods.