What to do if you do not conclude an employment contract: procedure, employee rights, responsibilities and obligations of the employer, laws

What to do if they don’t issue an employment contract, or the employer refuses to draw one up at all? According to the law, the responsibility for formalizing the relationship between the employee and the employer rests with the latter. An employee has the right to stay at his workplace, if he does not have an employment contract, for only 3 days. This is the period allocated by the Labor Code for official registration.

But unfortunately, cases where an employee works at an enterprise without a contract for several months or even years are becoming more and more common. Moreover, this situation often suits even the most unemployed citizen.

If the employee refuses to sign an employment contract

67 of the Labor Code of the Russian Federation, an employment contract must be concluded in writing. It is mandatory to draw it up in two copies, each of which is signed by the parties. However, an agreement that is not drawn up in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative. When an employee is actually admitted to work, the employer is obliged to formalize a written employment agreement with him no later than 3 working days from the date of actual admission to work.

Can I be fired under the article if the employment contract has not been signed?

So, a month later, they show me my application (which is handwritten) and in the upper corner is the director’s visa. accept with trial for a period of ONE month). As a result, 2 weeks end after I wrote my resignation letter. Among these 2 weeks, I didn’t work for 3 days, but every time I came in the morning, I was told that there was no equipment yet, it would be tomorrow. and I was leaving. Now they are trying to interpret this as my absenteeism (absence from work for no official reason). As a result, can I be fired under the article (for absenteeism).

If the employment contract is not signed by the employee

67 of the Labor Code of the Russian Federation must be concluded in writing. It is mandatory to draw it up in two copies, each of which is signed by the parties. However, an agreement that is not drawn up in writing is considered concluded if work has begun with the knowledge or on behalf of the employer or his representative. When an employee is actually admitted to work, the employer is obliged to draw up an agreement with him in writing no later than 3 working days from the date the employee is actually admitted to work.

From what moment does the additional agreement come into force?

The additional agreement comes into force from the moment of its conclusion, unless otherwise follows from the additional agreement itself or, when you change the agreement, the nature of the change (clause 3 of Article 453 of the Civil Code of the Russian Federation). Thus, you can specify in the agreement a specific date or period of time upon the occurrence or expiration of which the agreement will be considered modified or terminated.

If the agreement is subject to state registration, then the additional agreement must be registered. In this case, it is considered concluded and comes into force for the parties at the time of signing, and for third parties - at the time of registration, unless otherwise provided by law (clause 3 of article 433, clause 2 of article 164 of the Civil Code of the Russian Federation).

change the agreement retroactively : indicate in the additional agreement that it also applies to the relations that existed between the parties previously. The possibility of applying the retroactive force of a contract to an additional agreement to amend it is confirmed by judicial practice. However, keep in mind that in some cases this may contradict the law or the essence of the relationship that you have with the counterparty (clause 2 of Article 425 of the Civil Code of the Russian Federation).

to terminate a contract retroactively , but we do not recommend including a retroactive clause in the additional agreement on termination of the contract. A number of courts believe that when a contract is terminated, the relations of the parties are terminated only for the future and retroactive termination is impossible.

Is it possible to terminate a contract retroactively?

If the employment contract is not signed by the employee

67 of the Labor Code of the Russian Federation, an agreement is concluded in writing, drawn up in two copies, each of which is signed by the parties... an agreement not drawn up in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative. When an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing later than three working days from the date of actual admission to work.

If the employment contract is not signed by the employee

Although the priest, who was removed from the priesthood and removed from the staff of the Saratov Diocese, had a work book with a record of dismissal, the courts of two instances decided that the Labor Code did not apply to him. April 8 By order of the governor of the Kemerovo region, Aman Tuleyev, the regional parliament urgently adopted a law banning the activities of collection companies in the Kuzbass region.

The employment relationship must be secured by an agreement , which can be drawn up for a specific period of up to 5 years or indefinitely. If the employer is in no hurry to draw up the document, but the employee is allowed to work, Article No. 67, Part 2 of the Labor Code of the Russian Federation comes into force.

— application to the labor inspectorate;
- application to the court.

If you are allowed to work and have begun to perform your direct duties assigned to you by your employer, the employment contract must be drawn up in writing within three days and signed by both parties.

Working without an employment contract is a direct violation of current labor laws. During the inspection, the labor inspectorate will impose an administrative fine on the responsible manager. If a re-inspection reveals that violations have not been eliminated, the operation of the enterprise may be suspended for up to 90 days.

Without waiting for verification, contact the head of the enterprise directly and

concluding an employment contract

. If the manager does not enter into a constructive dialogue and does not want to explain to you the reason for the refusal to consolidate the employment relationship in writing, indicating all working conditions, rest, payment, etc., you have the right to submit a written application to the labor inspectorate or to the court.

Based on Article No. 67, Part 2, an employee who has begun to perform his duties is considered to have his rights infringed, and his legal right to document labor relations can be legally restored through a labor inspectorate or court.

In accordance with the court order or written recommendations for the employer from the labor inspectorate, an employment relationship will be concluded with you in the form provided for by the current labor legislation.

If you do not plan to contact these authorities, you have the right to stop working with this employer and withdraw your documents. However, the law does not provide for any type of work. Relations that are not concluded in writing are considered invalid, therefore, the parties have no obligations, as well as rights.

What to do if you don’t sign an employment contract

Employment without an employment contract no longer surprises anyone.

Moreover, even the candidates themselves often prefer this type of employment. Why?

The salary in such cases is usually higher ; with other alternatives, few candidates agree to take risks.

But upon closer examination, it turns out that everything is not so simple. First of all - for the employer.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to know

how to solve exactly your problem - contact the online consultant form on the right or call +7 (499) 703-35-96. It's fast and free!

The employee does not want to sign an employment contract without explaining the reasons. Are we subject to any sanctions?

Question

Our employee does not want to sign an employment contract. Doesn't explain the reasons. It could be anything. Will we be subject to any sanctions?

Answer

Despite the fact that the situation, of course, is not so common (usually employers are in no hurry to formalize the relationship), there is no need to treat it as an ordinary matter. The development of events can be very different. Especially if the employee hides the real reasons from you.

Let us remind you that in accordance with Art. 16 of the Labor Code of the Russian Federation, you have already established an employment relationship (the employee is actually admitted, and, most likely, you have already paid him wages at least once). Therefore, in accordance with Art. 67 of the Labor Code of the Russian Federation, it is necessary to formalize the relationship in writing.

We will not consider possible reasons for an employee’s refusal to sign an employment contract. We will only give an algorithm for your actions. Do not forget that you and the employee may not have reached agreement on essential working conditions - but at the same time you should not have allowed him to work. The following actions are aimed at protecting you from an unscrupulous employee.

Record the fact of refusal to sign. Invite the employee to an official conversation, take minutes of it, record it on audio (video). Warn the employee that the conversation is being recorded.
Give the employee a copy of the employment order. Strictly speaking, this would be a violation - after all, the employment contract serves as the basis for such an order. But in this case, it is not your fault that the employee suddenly does not conclude it. In the order, you MUST indicate the salary amount (salary, allowances). This will be additional insurance against a possible lawsuit related to the fact that you allegedly agreed on much more money.
As an option, familiarize the employee with the staffing table or other document indicating the salary for this position.
Pull up all the tails. Upon signature, familiarize the employee with the Internal Labor Regulations, Regulations on Remuneration and Bonuses, and other local documents with which the employee must be familiar (especially with those documents that, in accordance with the law, are familiarized with before the start of the employment relationship). Conduct occupational safety training and organize on-the-job training.

IMPORTANT. Theoretically, an entry in the employment record cannot be made: it is made on the basis of an order for admission, and the order, as already noted, is based on an employment contract.

If the employee persists, there is nothing to do, more stringent measures must be taken. You cannot work without an employment contract.

The most convenient way is to remove the employee from work due to failure to complete labor safety training due to the employee’s fault (failure to pass a knowledge test, instruction, etc.).

As for dismissal, this is a controversial issue. Unfortunately, there is no reason. Just as there are no grounds for canceling the contract. In fact, the employee performs a labor function. A stalemate for both parties: an employment contract has been concluded, but not formalized.

Let us repeat: in any case, the fact of refusal to sign must be documented DOCUMENTARY, because By law, the obligation to conclude a contract (preparation, etc.) is still assigned to the employer.

How to write a refusal letter: samples and examples

When one organization sends a proposal for cooperation, which involves the signing of an agreement, to another company, then, obviously, the most common case will be a refusal of such cooperation; cases of consent are more rare.
In a situation of such a refusal, the standard option is the absence of response from the offeree. However, a situation is possible when this person is either interested in the proposal, although he could not accept it, or believes that further interaction is quite possible. Then it makes sense for the recipient of the offer to send the sender a letter of refusal, in which the recipient politely refuses cooperation at the moment, but expresses hope that it will be possible later

A refusal to enter into an agreement is a document that is sent by one organization to another when the first company has made a corresponding decision.

The basis for it is an offer sent by this other company to the first one. Thus, composing such a message is common courtesy, since it can be left unanswered.

At the same time, such a letter will provide an opportunity to improve relations between potential counterparties, so its preparation will certainly be a rational step if there is a prospect of cooperation in the future.

Provided form

The form of refusal to enter into a contract must be in writing . A verbal communication to an offeror that his offer has been rejected does not, by definition, constitute a letter.

Sample letter

A non-cooperation letter can be executed in various ways . Below are some examples of such a document.

First refusal letter:

Dear Egor Nikolaevich,

Our company has carefully studied the proposal received from you regarding the concept of an advertising campaign for our product. We noted the professionalism and creativity of your product.

Unfortunately, this campaign does not coincide with our vision of how our product should be promoted. Therefore, we have now decided to enter into an agreement with another advertising agency.

In the future, we are ready to get acquainted with your new ideas.

Thank you for your offer.

Sincerely,

Oleg Sidelnikov

Second refusal letter:

Dear Egor Nikolaevich,

We have considered your proposal regarding participation in the tender for the purchase by our institution of your medical devices. We found his conditions interesting.

However, unfortunately, we are forced to refuse it, since your price proposals for several significant items included in this tender do not coincide with our capabilities.

In the future, we will inform you regarding the dates and conditions of our next tenders

Sincerely,

Oleg Sidelnikov

Polite content

When composing a refusal letter, its author needs to take care of the correctness of the wording. After all, in the future it is possible that cooperation with this organization will still be beneficial . Also, violating the rules of good manners can affect the business reputation of a company that has refused another in an improper manner.

If the employee refuses to sign an employment contract

“Personnel officer. Labor law for personnel officers", 2008, N 11

If the employee refused to sign the employment contract.

This material explains how to protect yourself and what to pay attention to to avoid problems. The author shares his experience on the issue of drawing up employment contracts from the point of view of regulatory authorities, focusing on the attitude of the employer himself, which often leads to controversial situations.

In accordance with Art. 67 of the Labor Code of the Russian Federation, an employment contract must be concluded in writing. It is mandatory to draw it up in two copies, each of which is signed by the parties. However, an employment contract that is not drawn up in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his 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 3 working days from the date the employee is actually admitted to work. Let us also turn to the contents of Art. Art. 56 and 57 of the Labor Code of the Russian Federation, which, in particular, lists the conditions that are mandatory for inclusion in an employment contract, and also clearly states that if, when concluding an employment contract, any mandatory conditions were not included in it, then this is not a reason to recognize the employment contract as not concluded or as a basis for its termination. In this case, the employment contract must be supplemented with the missing conditions.

So, the employer’s obligation to conclude an employment contract is a guarantee of the employee’s rights. However, in this situation, how can the employer protect himself from the employee’s actions that could lead to unpleasant consequences?

In practice, situations often arise when a person entering a job, or an employee already working for a given employer, or an employee who was fired but subsequently reinstated at his previous place of work, for one reason or another does not sign the text of the employment contract, creating an almost insoluble problem, primarily for the employer. Provisions of Art. 67 of the Labor Code of the Russian Federation imposes the obligation to draw up an employment contract with an employee in writing on the employer, and Part 2 of Art. 67 of the Labor Code of the Russian Federation establishes the deadline for drawing up (signing) an employment contract, which in this scenario will be violated.

In this connection, responsibility for failure to fulfill this obligation, if there is fault, will also be borne by the employer.

As a rule, it is the employers themselves who initially make the mistake here.

Example. In Teplo LLC (Tambovka village) - one of the housing and communal services organizations in the Amur region - literally the entire team consisted of people fired due to the liquidation of the previously existing municipal unitary enterprise Tambov Housing and Communal Services. At the same time, all employees worked in the new organization for more than six months without written employment contracts, which they refused to sign when they started working due to dissatisfaction with the wage conditions offered there.

Ilyasova M.I. was hired at ZAO Stroitel in Blagoveshchensk, Amur Region, for the position of accountant, which was in the staffing table in force at the time of hiring. According to the oral agreement between the named employee and the director of CJSC Ilyasova M.I. was supposed to perform the duties of a lawyer, which actually took place. After the illegal dismissal, the court reinstated M.I. Ilyasova. at work, of course, as an accountant. The employee, despite this, continued to insist on providing her with a job as a lawyer, refusing to sign and receive a copy of the accountant’s job responsibilities, which were not presented to her by the employer in accordance with Art. Art. 57, 67, part 3 art. 68 of the Labor Code of the Russian Federation when hiring, but were offered for signature only after the court decision on reinstatement entered into legal force.

Mikhaleva V.G. worked at Aphrodite LLC in Blagoveshchensk, Amur Region, as a part-time dentist. After illegal dismissal under paragraphs. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the court restored Mikhaleva V.G. at work, and the state labor inspector, during an inspection at the request of the employee, obliged the employer to supplement the employment contract with V.G. Mikhaleva. missing conditions on working hours, rest time and wages. The director of Aphrodite LLC, fulfilling the order of the state labor inspector, alternately sent Mikhaleva V.G. two different versions of annexes to the employment contract containing the listed missing terms of the employment contract. But none of them was signed by the employee due to “disagreement” with the proposed conditions. Mikhaleva V.G. made his own proposals on the issues under consideration. did not present it to the employer.

In such cases, it is possible to assert that an agreement has been reached between the employer and the person who has not signed the employment contract (or the changed conditions introduced by the additional agreement), which represents the essence of the employment contract, only when, among the mandatory conditions provided for in Part 2 of Art. . 57 of the Labor Code of the Russian Federation, there is a clear agreement on the conditions that are not only mandatory, but also necessary, that is, those without which the employment contract cannot be considered valid. Such mandatory and necessary conditions can rightfully include:

— start date of work.

Commentary on the Labor Code of the Russian Federation (short article-by-article) / Rep. ed. Yu.P. Orlovsky. 2006 // ConsultantPlus.

There should be no dispute over these terms, even if they were only agreed upon verbally.

The proposal to include among such conditions the condition on wages is not without logic and is quite reasonable. However, as can be seen from the above examples, despite the fact that the issue of the amount and components of remuneration was not resolved between the parties to the employment contract, the employees still carried out their activities within the framework of labor relations, receiving wages from the employer throughout the entire period of work .

Kozlova T.A. Employment contract: concept and its content // Labor Law. 2006. N 2. P. 20.

In connection with the above, it can be argued that if one of the parties to the employment contract (both written and oral) does not agree with the content of its basic conditions regarding the place of work, job function and start date of work, and in some cases, the conditions regarding remuneration, then there is no meaning in labor relations based on such an “employment contract”.

Protecting itself from possible claims, including from officials of supervisory and control authorities, the employer must approach the solution of each specific problem individually, acting in legal ways. Thus, if it is not possible to agree on paper even with the person(s) applying for work at the very beginning, when hiring, even the necessary working conditions due to the refusal of such a person to sign the necessary documents, it would be correct not to allow such a person to work. In the event of a labor dispute with an employee actually performing labor functions, the court often takes the employee’s side, and for the employer, the decision made may have a negative impact on its activities.

Unfortunately, the reality is that in reality, between the employer and the person applying for work, as a rule, there is an unequal discussion of the terms of the future employment contract, ultimately arriving at a mutually acceptable solution, and there is an agreement similar to what is called a contract of adhesion in civil law.

Dictionary of labor law. Agreement of adhesion (according to the civil legislation of the Russian Federation) is an agreement, the terms of which are determined by one of the parties in forms or other standard forms and can be accepted by the other party only by joining the proposed agreement as a whole.

A more difficult case is when the employee is already working with the knowledge or on behalf of the employer or his legal representative. And the employer began to directly process the hiring process (in particular, the written execution of the employment contract), for example, only on the second day from the start of work. However, the amount of time that has passed from the moment the employee actually begins work until the moment his hiring is documented is no longer of fundamental importance in relation to the issue under consideration. Ideally, the mandatory or at least necessary conditions of the employment contract here should initially be clearly stated orally, and when the contract is drawn up in writing, they should only be reflected unchanged on paper.

However, in the majority of cases, what the employer records in the text of the employment contract is not the essence of the conditions that were discussed with the person applying for work, but which significantly worsens the employee’s situation. In most cases, we are, of course, talking about wage conditions and job responsibilities. Sometimes, on the contrary, the behavior of an employee who demands the conclusion of a written employment contract on conditions that were not initially discussed and the implementation of which is beyond the capabilities of the employer is incorrect.

In any of the described cases, perhaps the only possible legal course of action for the employer would be to draw up a written employment contract that is as close in content as possible to the one previously concluded orally. This employment contract must be presented to the employee for signing, and one copy must be handed over to him, as required by Part 1 of Art. 67 of the Labor Code of the Russian Federation, until the employee is actually admitted to work. The employee’s refusal to sign a written employment contract must be timely recorded in an act or other document, from which information about the fact, exact place and time, and other circumstances should be clearly visible in which the employment contract was presented to the employee for signing, but was not signed by him. In the same act or other document, it is advisable to indicate the reason why the employee refused to sign the employment contract, if known. In the same way, the employee’s refusal to sign on a copy of the employment contract kept by the employer should be recorded in order to receive a copy of the employment contract. If an employee does not agree with the terms of a written employment contract, which, in his opinion, are distorted in comparison with those agreed upon when entering work, if this employee still wants to continue the employment relationship with the employer, there is nothing left to do but contact the authority consideration of individual labor disputes with relevant requirements.

In modern domestic labor legislation and other regulatory legal acts containing labor law norms, there is an increasingly clear tendency towards written confirmation of various actions (inactions) of each of the parties to the employment contract in labor relations, which is aimed exclusively at their own benefit. First of all, it is worth carefully confirming the very beginning of the employment relationship and determining its conditions, having most fully and correctly drawn up and executed a written employment contract for this purpose.

What should I do if an employment contract was not concluded with me or was not given to me?

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 3 working days from the date the employee is actually admitted to work. Let us also refer to Art. Art.

56 and 57 of the Labor Code of the Russian Federation, which, in particular, lists the conditions that are mandatory for inclusion in an employment contract, and also clearly states that if, when concluding an employment contract, any mandatory conditions were not included in it, then this is not a reason to recognize the employment contract as not concluded or as a basis for its termination.

In this case, the employment contract must be supplemented with the missing conditions. So, the employer’s obligation to conclude an employment contract is a guarantee of the employee’s rights.

When joining a new employer, many personnel workers are faced with the fact that they have employees who have been working for a long time, as they say, since time immemorial, and there are no written employment contracts with them. To rectify the situation, these agreements are concluded urgently.

Attention

It is good when all employees with whom you need to sign an employment contract sign it.

But what to do if one of these workers does not agree to sign an employment contract on the proposed terms, and in addition dictates his own conditions, which he considers necessary to include in the text of the employment contract? And if the inspection was carried out and the State Labor Inspectorate obliged the employer to conclude written employment contracts with all employees, but the employees refuse, what should they do? We will give some recommendations after an example from judicial practice, which illustrates a similar situation.

Career

But even within this framework, persons wishing to enter into labor relations as employees have the opportunity, if not to force the employer to accept their claims, then, in any case, not to bind themselves to labor obligations with an employer whose offers do not seem attractive. A more difficult case is when the employee is already working with the knowledge or on behalf of the employer or his legal representative.

And the employer began to directly process the hiring process (in particular, the written execution of the employment contract), for example, only on the second day from the start of work.

However, the amount of time that has passed from the moment the employee actually begins work until the moment his hiring is documented is no longer of fundamental importance in relation to the issue under consideration.

Violation of labor and labor protection legislation by an official who has previously been subjected to administrative punishment for a similar administrative offense entails disqualification for a period of one to three years. Let us explain two concepts that appear in this article.

A similar administrative offense should be understood as the commission by an official of the same, and not any violation of labor and labor protection legislation1.

Disqualification is the deprivation of the right of an individual to hold leadership positions in the executive management body of a legal entity, to join the board of directors (supervisory board), to carry out entrepreneurial activities to manage a legal entity, as well as to manage a legal entity in other cases provided for by the legislation of the Russian Federation.

Themes:
Employment contract
Fixed-term employment contract
Responsibility of the parties to the employment contract

We suggest you familiarize yourself with how a general meeting of owners is held
When hiring a new person, employers regularly face the fact that the future employee refuses to sign an employment contract. The main reasons that explain this refusal are the desire to evade wage deductions and the inability to provide the necessary documents.

After reading this article, you will understand: • what to do if an employee refuses to sign an employment contract? • what is informal employment? • what threatens the company if it does not sign an employment contract with the employee? What to do if an employee refuses to sign an employment contract? Refusal to sign an employment contract may result in refusal to hire.

2006. N 2. P. 20. In connection with the above, it can be argued that if one of the parties to the employment contract (both written and oral) does not agree with the content of its basic conditions regarding the place of work, labor function and start date of work, and in some cases, even if there are conditions regarding remuneration, there is no meaning in labor relations based on such an “employment contract”.

The parties did not agree that the type of work of R., a researcher at the institution, is limited to a specific topic

A contract is an agreement under which the manager must provide the employee with a workplace, ensure normal operating conditions provided for by law, and pay wages on time. In turn, the employee undertakes to perform the function established by the contract and to comply with the rules of procedure established in the organization.

Consequently, the contract is a fundamental document that records the fact of the employee’s employment and the basic conditions for the performance of his work activities. It is possible to work without this document only if there is an alternative - a civil contract, which records the fact that a person provides paid work.

Attention! The actual admission of an employee to perform work at the enterprise means the beginning of an employment relationship.

If the employee is actually allowed to work, the employer must formalize the employment relationship with him in writing. The contract must be drawn up within 3 days.

Another common case is when an employee first worked under a civil contract, after which the parties decided to formalize the relationship under an employment contract. In this case, three days are given to conclude a new document, except in cases where the deadline for re-registration is established by court order.

Refusal to formalize relations with an employee is very popular due to several positive aspects:

It may not be possible to provide an employee with a safe environment for work, because Labor Code norms do not apply to him.
There is no need to remit taxes, which allows for significant savings.
There is no need to clearly establish deadlines for paying wages or their exact amounts.
It is possible to terminate the employment relationship at any time, ignoring the guarantees established in labor legislation for certain categories of citizens.

Important! The only negative point that an employer may face is liability.

Contrary to existing opinion, the absence of official registration can also be beneficial for the employee:

The possibility of receiving a higher salary, since a person has the opportunity to work more hours than required by law.
Work without documents.
No additional obligations, for example, financial liability or trade secrets.

Besides this, there are many negative points:

There are no labor guarantees.
Lack of confidence in receiving wages.
Working time is not included in the length of service, which will negatively affect the amount of the pension.
Lack of confidence in work deadlines.

If the employer for any reason refuses to draw up an employment contract, the employee may act in one of the following ways:

Insist on formalizing the relationship.
Write a letter of resignation.
Continue to work without official registration, while simultaneously collecting documents with which it will be possible to prove the existence of an employment relationship.

The following can be used as evidence of the fact of work without registration:

Medical record, provided that the company requires regular medical examinations.
A card statement indicating regular transfer of funds.
Waybills if the employee worked as a driver.
Power of attorney for the right to perform any actions.
Invitations to work in any form.
Other documents from the company that contain the signature of the employee or his last name.

If the boss refuses to formalize the contract, the employee can file a complaint with the labor inspectorate. This can be done through the website or by visiting the territorial office.

The complaint must include the following information:

Place of work.
Information about the manager.
Type of violation of rights.
Options to correct the situation.
Confirmation of the fact that there is no employment relationship.
Papers confirming the arguments set out in the complaint.

Liability measures for an employer who has not formalized the relationship with its employee can be divided into three types:

Tax office. If an employee works officially, his employer must make contributions to several state funds to provide for the employee during periods of incapacity. If the parties do not enter into an agreement, the boss deprives his subordinate of the opportunity to count on any payments in case of illness.

Attention! If such a violation is detected, the employer will be required to make all unpaid deductions and pay a fine in the amount of 20 percent of the total debt.

Administrative. According to the requirements of Article 5.27 of the Code of Administrative Offenses, an employer who allowed an employee to work, but did not properly register him, is held liable in the form of a fine of 10,000-20,000 rubles.

We invite you to familiarize yourself with Queue reservation at Estonian Luhamaa

Work without registration also means the absence of an employment contract, provided that the person actually performed the duties agreed upon with his superiors at the enterprise. In this case, the amount of liability is much higher - 10,000-20,000 rubles for an official and 50,000-100,000 rubles for a legal entity.

Criminal. If the total amount of unpaid taxes falls under the concept of large or especially large damage, the manager is held accountable under the Criminal Code. This could be a fine of up to 500,000 rubles, arrest or imprisonment for up to 5 years.

What to do if an employee refuses to sign an employment contract

Question

Our employee does not want to sign an employment contract. Doesn't explain the reasons. It could be anything. Will we be subject to any sanctions?

Answer

Record the fact of refusal to sign. Invite the employee to an official conversation, take minutes of it, record it on audio (video). Warn the employee that the conversation is being recorded.
Give the employee a copy of the employment order. Strictly speaking, this would be a violation - after all, the employment contract serves as the basis for such an order. But in this case, it is not your fault that the employee suddenly does not conclude it. In the order, you MUST indicate the salary amount (salary, allowances). This will be additional insurance against a possible lawsuit related to the fact that you allegedly agreed on much more money.
As an option, familiarize the employee with the staffing table or other document indicating the salary for this position.
Pull up all the tails. Upon signature, familiarize the employee with the Internal Labor Regulations, Regulations on Remuneration and Bonuses, and other local documents with which the employee must be familiar (especially with those documents that, in accordance with the law, are familiarized with before the start of the employment relationship). Conduct occupational safety training and organize on-the-job training.

IMPORTANT. Theoretically, an entry in the employment record cannot be made: it is made on the basis of an order for admission, and the order, as already noted, is based on an employment contract.

If the employee persists, there is nothing to do, more stringent measures must be taken. You cannot work without an employment contract.

The most convenient way is to remove the employee from work due to failure to complete labor safety training due to the employee’s fault (failure to pass a knowledge test, instruction, etc.).

Let us repeat: in any case, the fact of refusal to sign must be documented DOCUMENTARY, because By law, the obligation to conclude a contract (preparation, etc.) is still assigned to the employer.

Refusal to sign the contract

Refusal to sign an agreement is the right of the subject of civil legal relations - this is indicated by the provisions of Part 1 of Art. 421 of the Civil Code of the Russian Federation, which establishes the principle of freedom to conclude a contract. Moreover, it is not at all necessary to respond to the proposal to conclude an agreement, that is, the potential party to the agreement may simply remain silent (for example, in the case of refusal to accept the terms of the public offer agreement).

However, exceptions to this rule are possible if:

a person obliged to conclude a public agreement with any person has grounds for refusing the consumer to join such an agreement (Part 3 of Article 426 of the Civil Code of the Russian Federation);
in the course of preparation for the conclusion of a supply agreement (Part 2 of Article 507 of the Civil Code of the Russian Federation) or a state/municipal contract (Part 12 of Article 95 of the Federal Law "On Contract..." dated 04/05/2013 No. 44), one of the parties refuses to sign the documents .

Civil contract

Is it possible to work without concluding an employment contract?

Yes. Which, however, does not mean that the law allows people to accept labor “without paperwork.” An alternative to an employment contract is a civil law contract (also known as a contract for the provision of paid services).

It does not provide the worker with the guarantees provided for by the Labor Code of the Russian Federation (paid sick leave, for example, vacations), but does not relieve the employer from the need to make the necessary contributions (including pension contributions).

A civil law contract means, in fact, almost nothing. It does not even imply a full-time position . All that he records is that one person provided paid services in the form of some kind of work.

Signing deadlines

The employer has 3 days . If the candidate is not Russian, then the employer is obliged to notify the FMS about the fact of hiring a foreigner.

If the document has not been signed, but the employee has begun his duties in his position, then the law considers such an agreement to be concluded (Article 67 of the Labor Code).

Refusal to sign an additional agreement to the contract

Free legal advice:

In a situation of such a refusal, the standard option is the absence of response from the offeree.

However, a situation is possible when this person is either interested in the proposal, although he could not accept it, or believes that further interaction is quite possible. Then it makes sense for the recipient of the offer to send the sender a letter of refusal, in which the recipient politely refuses cooperation at the moment, but expresses hope that it will be possible later

Concept and means of expression

A refusal to enter into an agreement is a document that is sent by one organization to another when the first company has made a corresponding decision.

The basis for it is an offer sent by this other company to the first one. Thus, composing such a message is common courtesy, since it can be left unanswered.

Free legal advice:

At the same time, such a letter will provide an opportunity to improve relations between potential counterparties, so its preparation will certainly be a rational step if there is a prospect of cooperation in the future.

Refusal to conclude a contract

Refusal to conclude a contract is a right reflecting the principle of freedom of contract (Part 1 of Article 421 of the Civil Code of the Russian Federation). The subject has the right to refuse cooperation both at the stage of negotiations (Part 1 of Article 439.1 of the Civil Code of the Russian Federation) and during the contractual process (at the stage of responding to an offer, etc.).

The legislation contains a limited list of situations when it is impossible to refuse to enter into an agreement:

when concluding an agreement with the winning bidder (Part 1 of Article 447 of the Civil Code of the Russian Federation);
when concluding a public contract (Article 426 of the Civil Code of the Russian Federation);
if a preliminary agreement was signed (Article 429 of the Civil Code of the Russian Federation);
after sending an irrevocable offer, including according to the rules for an option under Art. 429.2 Civil Code of the Russian Federation;
in certain other situations specified by law.

In most cases, it is enough for a subject who does not want to enter into an agreement to simply remain silent in response to the offer.

However, sometimes the law directly requires you to express your position in the form of a document. For example, when:

Free legal advice:

the person obligated to enter into a public contract has acquired grounds for refusing the consumer counterparty;
During the contractual process, a party refuses to sign a supply agreement (Part 2 of Article 507 of the Civil Code of the Russian Federation) or a state/municipal contract (Part 2 of Article 528 of the Civil Code of the Russian Federation).

Letter of refusal to conclude an agreement

There is no clearly regulated form of a letter of refusal to sign an agreement at the legislative level. This letter is drawn up on the company’s letterhead and certified by the signature of the manager or another authorized person. However, it is recommended that you include the following information:

Name of the addressee, namely:

for legal entities - name, address, contact details;
for individuals - full name, address, contact phone number if available.

The outgoing document number, as well as the date of its registration in the outgoing correspondence journal.
The name of the document, namely: “Notice of refusal to conclude a contract.”
Further in the text it is necessary to state:

initial conditions, as well as offers received from the addressee;
the wording of the refusal indicating clear reasons, as well as links to the legal framework allowing the refusal.

In cases where a written refusal is required, it is necessary to pay attention to sending it to the counterparty in accordance with the rules for the transmission of legally significant messages.

When is it legal to refuse to sign a public contract?

The very essence of a public contract is the need to conclude it with everyone who applies.

At the same time, sometimes the law allows an obligated person to refuse to conclude a contract for reasons that do not allow him to provide the service necessary for the consumer (Part 3 of Article 426 of the Civil Code of the Russian Federation). For example, due to:

lack of technical ability to organize rail transportation (Article 11 of the Charter of Railway Transport of the Russian Federation dated January 10, 2003 No. 18-FZ);

Source: https://xoxr72.ru/otkaz-v-podpisanii-dopolnitelnogo-soglashenija-k/

Minuses

Here everything depends on whether there was at least something “paper” that could confirm the fact that the citizen started working in the designated position, and in general provided the employer with some kind of paid services.

Because in this case, the emergence of a labor dispute is more than likely (a conscientious and decent employer will not refuse to assume official responsibility ).

But let's even assume. If they accept your claim, how will you prove it? cannot help in this case .

It is not clear what “advantages” candidates are counting on?

dismissal. They can “ask” at any time, without explanation and without severance pay;
non-payment or delay of wages;
no insurance premiums;
failure to register in the work book - the work done will not be included in the length of service.

As you can see, from the proposed list there is nothing at all that could at least indirectly pass for an advantage. Often employers lure candidates with a large salary .

But again, who can guarantee that they will pay you? What if it goes to court? Again, the employee does not win - it is almost impossible to win such a dispute on your own, and the lawyer will ask for payment for his services.

Proof of work

Evidence may include things like:

Witness's testimonies.
The order of acceptance to work.
Local documents indicating your presence.
Certificates, salary receipts, receipts.

If a cunning employer does not want to register you in any way, despite his promises about official activities, there is no need to shout that you are suing.

Although, in general, according to Article 62 of the Labor Code, you have the right to make such a request and, in theory, you should receive an answer within three days.

However, in practice it turns out that in this case you will not be given anything at all.

It’s better to contact the HR department or an accountant (or the person who issues your salary) and tell them that you are taking out, say, a mortgage with your life partner.

One problem - you need documents from both: a salary certificate 2-NDFL and a copy of the work book, which, of course, contains information about your registration. They will be given to you.

What to do if the employer does not conclude an employment contract with the employee (after 3 days)?

In any case, an employee without an employment contract can file a complaint with: the labor inspectorate or the court.

Labour Inspectorate

This can be done either through the website or at your territorial unit. The complaint is written in any form, but it must clearly indicate:

Where do you work.
What is the leader's name?
How exactly are your rights being violated?
How would you like to improve the current situation?
What do you confirm?

In addition, you will need papers that can somehow prove the validity of your arguments.

The claim is filed at the place of registration of the employer (Article 28 of the Civil Procedure Code of the Russian Federation). It should contain:

Full name of the court.
Information of the applicant, defendant (full name and address of the company, also who you worked there and since when).
What happened to you?
What do you want from the court?
List of submitted documents.
Date, signature.

In addition to the application itself, you will have to provide “paper” evidence of the validity of your claims.

Yes, at least the fact that you even started working in this organization.

That is why it is best to contact a qualified lawyer specializing in labor disputes.

Or maybe, with its help, you will be able to solve the problem peacefully, without resorting to Themis.

In this case, the applicant is not required to pay (Article 393 of the Labor Code).

Among other things, the employee may also claim material damage.