The employer does not give out the work book and salary: what to do and where to go

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If the employer does not hand over the work book and salary, you will have to immediately contact regulatory organizations, and then law enforcement agencies. Let's consider what legal methods of influencing the employer are used in such situations.

What does the Labor Code of the Russian Federation say about issuing a work book?
The employer is withholding the work book: what to do?
Filing a complaint to the labor inspectorate
Lawsuit against employer
What to do and where to go if you are not paid your salary upon dismissal?
Conclusion

When are they required to issue a work book by law? Acceptable delay periods

The current provisions of the regulations establish the employer’s obligation to issue the resigning employee his work permit on his last working day. This register can be transferred to the employee earlier, but not later than the last working day of this person.

The exception is when the employee does not come to collect his book or refuses to receive it. Then the HR department should write him a letter in which the employee will be asked to dispose of his labor.

The employer must also draw up a report indicating the reason for not issuing the employee’s work permit. As soon as a former employee shows up with a desire to receive this document, the company administration must issue it to him within three days.

Attention! There are no other acceptable delay periods for this register. The employer may be held liable for such a delay.

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Common problems when obtaining a job:

We can highlight the following main problems that an employee may encounter when receiving a work permit.

They don’t hand over the labor, demanding to pay the “shortage”

During the course of work, an employee may incur a debt to the company. The employee does not want to repay this debt upon dismissal or he does not have the funds to repay this debt. Then the employer can say that he will return the work only if the debt is returned.

Important! However, this requirement of the company administration is unlawful. If the employee does not pay off his debts, the company can go to court, but under no circumstances should the employee be delayed in issuing the work permit. This offense is a serious violation of labor laws.

They refuse to issue a book without a bypass sheet or work off.

Many business entities are required to fill out walk-in forms when dismissing employees. This is a register that reflects the procedure for transferring cases and settlements with a resigning employee.

As a rule, this document is submitted to the personnel service on the last day of work, and the personnel officer is the last to sign it when he issues the employee his work permit.

However, many employees may ignore this requirement and not issue a bypass slip. Then the employer may try to force them by threatening that he will not hand over the work permit. This is also an offence.

By not issuing a work book, the administration of the enterprise may try to force the resigning employee to work out the work period established by the Labor Code of the Russian Federation. You can't do that either.

Attention! If an employee does not want to work and does not start work from the moment of application, then he can be fired for absenteeism and an appropriate entry can be made in the employment record. After this, it is subject to mandatory handover to the dismissed person. It is unlawful to delay labor.

The employer did not formalize it, but also does not return the work

The situation may turn out to be that the employee handed over to the employer all the necessary documents for employment, including the employment document, but the administration did not formalize it - that is, it did not conclude an employment contract.

In this situation, the important point is whether there is evidence of the employee transferring these documents to his employer. If yes, then you can file a complaint with the employer himself, the labor inspectorate or the prosecutor’s office. If these authorities intervene, the employer will be obliged to return this document.

When the employee does not have any evidence that he transferred his work to the employer, then it will be very difficult to prove this fact. In this situation, it is recommended to act through negotiations with him, or threaten to contact the competent authorities.

No way to find an employer

The employer can stop conducting business and disappear along with all documents. This situation occurs quite often in cases where the employer is an individual entrepreneur. Therefore, the employee is recommended to immediately begin the process of restoring his employment, since it is most likely impossible to get the old one back.

Attention! To confirm his work experience, an employee can submit a request to the Pension Fund of the Russian Federation.

The work permit was lost, what should I do?

Despite the fact that loss of employment is a serious offense on the part of the employer, such a situation can arise.

What to do if the employer refuses to hand over labor: employee actions

As soon as it becomes clear to the employee that the employer is not handing over the work book, he will need to write a letter to his employer.

We draw up a written appeal to the boss

The employee must submit a written request to the employer requesting the issuance of his work record book.

He can submit this application to the company’s responsible official. It is possible to send this request to the company by mail.

Attention! In the latter case, the application must reflect in detail exactly how the employee plans to collect the work permit. This can be done in person, received this document by mail, etc.

Application to the labor inspectorate (Rostrud)

An employee needs to know where to go if they don’t hand over their work book. First of all, you can complain to the labor inspectorate. The employee must submit an application on his own behalf. Anonymous complaints will not be accepted for consideration.

A complaint from one dismissed employee can trigger inspections of the entire enterprise. As soon as the employer finds out that the employee is going to write a complaint to this body, he can immediately make concessions, so the labor inspectorate can check not only the issue of the complaint, but in general compliance with mining legislation.

During the inspection, the inspectorate will check compliance with labor laws. If violations are discovered, for example, failure to issue labor to a dismissed person on time, the employer may be held liable.

What is the deadline for issuing the document, and how to write the application correctly?

The law obliges the employer to return the work book to the employee on the day of dismissal. This norm is fixed in Article 232 of the Labor Code of the Russian Federation.

If HR department employees do not issue a work book upon dismissal, then the employee must draw up a second application addressed to the employer.

This statement is written in two copies, which must be signed by the manager. One remains at the enterprise, and the second is taken by the employee.

The document is drawn up in free form, but must contain the basis for the request for a work record, the names and positions of the manager and employee.

Application example.

If, having received such a statement, the management refuses to sign, the paper must be sent by registered mail, attaching all the necessary additions.

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Penalties

The fine for failure to issue a work book is established by Article 5.27 of the Code of Administrative Offenses of the Russian Federation. It provides:

A fine for an official is 1-5 thousand rubles;
A fine for an entrepreneur is 1-5 thousand rubles;
A fine for the company is 30-50 thousand rubles.

If this violation is recorded again, the amount of fines increases:

For an official - 10-20 thousand rubles. or disqualification for 1-3 years;
For an entrepreneur - 10-20 thousand rubles;
For a company 50-70 thousand rubles.

Important! In addition, it is necessary to remember that according to the Labor Code, the employer must pay the employee the average salary for each day the work book is delayed.

Responsibility of an employer who does not hand over a work book

Whatever the reason for the dismissal of the employee and the reason why the issuance of the document was delayed, the employer will be held accountable for the violation. The actions will be qualified under Part 1 of Article 5.27 of the Administrative Code, since they are a violation of labor legislation.

The sanctions in this case differ depending on the guilty party:

Up to 5,000 rubles if an official or individual entrepreneur is found guilty.
Up to 50,000 rubles if the legal entity is at fault as a whole.

These amounts are subject to recovery for the benefit of the state..

We should not forget that in addition to the fine, the culprit will need to fully pay the amounts due to the employee. One of these amounts is compensation due to unlawful deprivation of the opportunity to work due to failure to issue a work permit on time (Article 234 of the Labor Code). Accruals will be made for the entire period of document retention.

Moral damage caused by the employer is compensated on the basis of Article 237 of the Labor Code. The amount of this compensation is determined by the court individually, taking into account all the facts of the violation and its consequences.

Responsibility arises not only in the event of actual evasion of the return of labor, but also in the event of failure to send the appropriate notice to the employee.

Contacting the prosecutor's office

Filing a complaint with the prosecutor's office is a fairly common occurrence if the workplace does not give the employee's work record book after dismissal. This is because this violation affects several areas of labor law.

The application must be submitted to the authority at the location of the company. The text itself is formatted in free form. In it, the employee can not only blame his employer, but also detail the violations committed by him.

The end of the application should be a request to conduct a prosecutorial investigation and restore the employee’s rights. The result of the consideration of the application and the inspection is communicated to the applicant within 30 days from the date of its submission.

The employer did not give the work book and disappeared: what to do

Liquidation of an enterprise or termination of the activities of individual entrepreneurs does not relieve them from fulfilling their obligations under employment contracts. However, in practice, in such situations, obtaining a work book can be very difficult, especially if the former employer avoids meeting and it is impossible to establish his location.

The court's decision in this case will most likely be in favor of the employee, but it can take years to wait for its execution. The only way out is to issue a new work book.

Important! It will not be possible to restore the work book in its previous form, but you can confirm the existence of length of service by contacting the territorial divisions of the Pension Fund of the Russian Federation and the Social Insurance Fund at the employer’s location. Based on previously made deductions, the authorities will provide relevant certificates. Subsequently, they will be useful for presentation to the new employer and when calculating the pension.

Going to court

How to make an application?

This application is drawn up in free form.

It must include the following information:

Information about the applicant (employee);
Information about the employer;
Information about dismissal (date, circumstances of dismissal);
The essence of the violation (that the work book was not issued on time);
Requirements for the employer (this can include a requirement to issue a work permit, make changes to the dismissal record, pay compensation for delays in labor, etc.).

Attention! The application must be accompanied by available supporting documents - for example, an application to the manager for the issuance of a work book.

Statute of limitations

The fact of non-issuance of a work book refers to general violations of labor legislation. According to the law, an employee must go to court within 3 months from the moment he learned of a violation of his rights.

According to the law, if the specified period is missed, it can be restored by the court upon presentation of supporting documents.

In practice, the court takes this position in such disputes. The work book must be issued to the employee on his last working day. If this does not happen, then a violation of his rights has occurred, so the period begins to count from that day. Even providing a late notification about the need to pick up work will not be considered an excuse.

Material and moral compensation

The requirement to compensate the employee for material damage caused is contained in Art. 234 Labor Code of the Russian Federation. It states that the employer is obliged to pay the employee the average salary for each day that he was deprived of the opportunity to work. According to the law, this can happen if an employee cannot get a new job due to lack of a work book.

Compensation for delay

The legislation provides not only administrative liability for violation of labor laws, but also material liability. Since the boss delays issuing the work book, the employee cannot earn money and, therefore, loses income.

To compensate for moral damage, an employee must file a claim in court. In this case, the administration of the enterprise compensates the employee’s income for the entire time during which he had a work book. The court will take into account that all this time the employee was illegally deprived of the opportunity to work.

The compensation payment must be calculated based on the employee’s income for the entire period of time during which he was not employed due to the fault of the employer.

If an employee did not have a work book in a given organization, nothing is recorded there when he leaves. This is possible in cases where the place of work was part-time or remote.

Circumstances excluding the employer's liability

The law establishes that the employer, regardless of the circumstances of dismissal, is obliged to hand over a work book to the employee on the last day of work. Even if there are any disagreements between the parties, they must be resolved after dismissal, including through court proceedings.

To relieve itself of responsibility for failure to issue a work book, the employer must send a notice on the next working day after the employee’s final day. It must contain an invitation to come to the enterprise and receive a work permit, or to give written permission and send this document by mail. Until this moment, the labor force must remain at the enterprise.

Important! The notification letter must be sent by registered mail with acknowledgment of receipt. It is not allowed to provide verbal notification of the need to obtain a book, since during proceedings before the supervisory authorities it will be impossible to prove that the employee knew that he needed to pick up the document, but did not do so.

Salary and personnel

Exemption of the employer from liability for failure to issue a work book on time. The management bears the above liability only if there is guilt, expressed in the deliberate or erroneous failure to issue or delay in issuing a work book.

6 tbsp. 84.1

In this case, the delay is caused by reasons beyond the control of the superiors; accordingly, the latter does not bear responsibility.

In addition, if the employer sent the employee a notice on the day of termination of the contract that he must appear for a work book or agree to its mailing, liability will also be relieved.

Is it possible to restore this document?

The employee can restore his work record.

There are several ways to do this:

Contact your previous employer. He needs to fill out an application with a request to issue a duplicate work permit. The document must be reviewed within 2 weeks, after which the employee is issued a new employment document marked “Duplicate”. It will include an indication of the length of service prior to employment and the last entry. In order to restore all previous records accurately, it is necessary to visit all previous employers.
Contact the MFC. There you need to fill out a form to reinstate your work record. The advantage of this method of restoration is that there is no need to independently contact all previous employers. The MFC will send a request to the State Archive and restore the document according to the records available in it.
Contact the Pension Fund. You must have your passport and SNILS card with you. The fund will need to fill out an application using a special form. Next, the specialist will inform you about the readiness of the new labor document.

How to get a new work permit instead of an unissued one

If the employer does not give the work book, then you can draw up a new document at the new place of work. But at the same time, several difficulties will arise for the employee - for example, it will be difficult to establish the total length of service, length of service for calculating a pension, time worked in a certain position, etc.

It must be remembered that, by law, an employee must have one work book and keep it at his current place of work. To issue a new one, you must declare the old document lost. However, this will remove liability from the previous employer.

Attention! To restore all entries in the work book, it is necessary to obtain certificates from all places of work, and based on these documents, the personnel officer will make entries in a new document.

Obligation to issue a work permit to a dismissed employee

According to the Labor Code, namely Article 84.1, the employer is obliged to issue the employee a work book with a corresponding entry on the termination of labor relations with the employee immediately on the day of dismissal. There can be only two exceptions here:

if the employee was not present for any reason on the day of termination;
the employee refused to take the document.

In this case, the employer must notify the dismissed employee to pick up the book in person or through the post office. If there is no reaction, but the employee then applies for a work book, then it should be issued within 3 days.

Reinstatement of labor through the court

The surest, but at the same time time-consuming way to restore the restoration of this document is to go to court. Only he can accurately restore all the facts of the employee’s work activity.

To begin the procedure, you must submit an application to the court. It must indicate the reason for restoring the document, as well as available information on work experience.

The court itself sends requests to all affected persons. If one of the employers no longer exists at the time of the trial (the company has closed, gone bankrupt, etc.), then restoration can be made based on the testimony of witnesses.

Attention! The disadvantages of this method of restoration is the need to pay for restoration services. Also, interested parties may remain dissatisfied with their summons to court.

What violations occur

The employer, of course, may not give the work book for purely technical reasons.
For example, if the HR department made an incorrect dismissal entry. In this case, he is still not released from liability. And he is obliged to submit a document with a clarifying entry within three days. Read: Employer's responsibility for black wages in 2019
In addition, a situation may arise in which the employer demands to pay the shortfall if the employee is financially responsible. Such actions are illegal. If there really is material damage, then the work book will still be returned. And then you can file a claim in court and demand compensation for damages.

Plus, there are situations in which an employee is required to sign a bypass sheet . Such a requirement is considered illegal. An employer may require completion of a project or work that has been started and remains unfinished on the date of dismissal.

There are also employers so confident in their impunity that they either simply refuse to accept and register a dismissal application without reason, or use threats and blackmail, promising the employee, if the requirements are not met, to be fired “under the article”.

Although rare, circumstances arise in which a work book is lost or seriously damaged . In such cases, the employer is obliged to draw up a proper document on the need for replacement (RF PP No. 225). But this step automatically leads to the punishment of the responsible person for improper storage of archival documents. If such a problem occurs, the employee has two options for further action:

Obtaining a certificate from your old place of work about the loss of your work book. On its basis, another one must be issued at the new location;
Applying to court to demand restoration of the document and compensation for damage incurred.