Working without a work book under a civil contract - design features

When the law allows you to work without a work book

Articles 44 and 48 of the Labor Code of the Russian Federation allow the employment of an employee by an employer on the terms of an employment contract, but without recording this fact in the work book:

• external part-time work – when the employee is a full-time employee of another enterprise, and works for the specified company on a part-time basis or remote access;
• performing work duties for a citizen-individual who does not have the status of an individual entrepreneur.

Only the listed circumstances give the right to conclude employment contracts with employees without entering information about the work in the work book.

Registration for work

Labor relations in the Russian Federation are regulated and regulated by the Labor Code of the Russian Federation. It describes all the features and nuances of the relationship between the boss and subordinates.

It is mandatory for a citizen to have a work book. It contains data on official employment and dismissals. The document is extremely important when assigning a pension.

But more and more often in practice we find work under a contract without a work book. What advantages and disadvantages does this scenario have?

External part-time work - nuances of work

A citizen who has several jobs and is registered under employment contracts has full rights guaranteed to him by labor legislation:

• leave, in the amount provided by law, provided in agreement with management at the same time for all employers;
• in case of illness - obtaining a certificate of incapacity for work for each place of work separately;
• accrual of labor and insurance pension experience.

Keep in mind: at the request of an employee who is a part-time employee, the employer can enter an additional place of work in the work book, guided by the information from the certificate issued by the main company.

Legality

The first thing you should pay attention to is the legality of this work. Is it possible to work without a work book, and even officially?

According to established legislation, it is impossible to work with a contract without a work permit. The corresponding entries must be made in the employee’s document.

The agreement may be oral, but such experiments are not encouraged. Indeed, in this case, employment will be considered unofficial. And this, in turn, is illegal. Registration for work under an employment contract takes place in Russia. But without an entry in the work book, the work is considered risky.

This is important to know: How to draw up an employment contract with an employee: sample 2020

Employment with an individual

Household assistant, nanny, tutor, gardener - such professions are often in demand on the labor market in the private sector. Citizens who are not business entities by status have the right to hire employees if this activity is not related to making a profit.

Naturally, there cannot be any entry in the work book about this period of work activity, and the employee’s rights are protected by a formalized employment contract between individuals.

When entering into such an agreement, the private employer must notify local authorities about hiring people for work. Data about dismissed employees is transmitted in the same way.

The working conditions of a private owner must not contradict the provisions of labor legislation - regarding the length of working hours, the provision of days off and annual leave, and other social guarantees.

A private individual acting as an employer must be responsible for paying insurance contributions to extra-budgetary funds (medical insurance, social insurance, Pension Fund) in order to ensure the availability of insurance and work experience for his employee.

Benefit for employers

The absence of a contract regulating labor relations allows employers to avoid the liability imposed by this document.

The main benefit for the organization (enterprise) and management is:

If you want to find out how to solve your particular problem, please contact us through the online consultant form or call:

• Moscow.
• Saint Petersburg.

• in the absence of liability for delays in payment of wages;
• the ability to assign a salary that will be less than the minimum established by the government (minimum wage);
• the possibility of not including the employee in the staff (such an employee is automatically deprived of the protection of the trade union organization, since it actually does not know about his existence);
• the ability to refuse to an employee payment for vacation days, compensation for travel expenses for a business trip, or payment for overtime work;
• there is no need to ensure decent working conditions in the workplace;
• the possibility of not paying insurance contributions to the Pension and Insurance Fund for the employee.

In addition, the employer may dismiss such an employee on his own initiative without good reason or without giving notice.

The employee does not actually exist in this enterprise or organization! But his rights and obligations are not documented (theoretically, the employer does not violate anything).

Contract agreement and service agreement - how do they differ from an employment contract?

An alternative to an employment contract are civil law contracts (CLA) that are often used in practice:

• on the provision of services;
• contract;
• author's;
• agent

Work under these types of contracts is subject to the norms of civil law, in contrast to the agreement, which lies within the scope of the Labor Code.

FILES Contract agreement for the performance of work with an individual (sample).doc Contract for the provision of services (universal, sample).doc Civil contract with an employee (sample).doc

The differences between an employment contract and civil law contracts are discussed in more detail in a separate section.

.

Civil contracts are often designed to disguise ordinary employment contracts, since they have a number of valuable advantages for the employer:

• the contractor under the GPC agreement performs the task assigned to him at his own peril and risk, the customer is only interested in the final result;
• the contract has a strictly defined validity period;
• after completing the assigned task, the customer pays only the agreed amount, and not all the working time spent by the contractor on completing the work;
• the period of validity of the GPC agreement is counted in the employee’s insurance period, but is not included in the length of service;
• the customer has no obligations for the employee’s social security, does not pay for vacation, sick time or business trips;
• the contract/service agreement can be terminated at any time before signing the work completion certificate at the initiative of the customer;
• The contractor uses its own equipment and materials to perform work under the GPC agreement.

Important: for using a GPC agreement that replaces an employment agreement, the employer is subject to punishment in the form of a fine. The head of the organization will be required to pay from 10 to 20 thousand rubles, and the enterprise - from 50 to 100 thousand rubles.

What cannot be specified in a contract

Fiscal authorities pay serious attention to the correct execution of work contracts and contracts for the provision of services by an individual. It is these types of GPC agreements that are most often used by employers to conceal the fact of labor relations. To avoid claims from regulatory authorities, the terms and wording of the contract should be used with caution.

It is advisable to comply with the following conditions in a civil contract:

• it is impossible to link a job or service to specific labor functions or to the indication of positions according to the staffing table;
• it is necessary to have quantitative parameters of the work performed in the civil process agreement;
• the order should not be long-term, but one-time in nature;
• It is not allowed to mention the employee’s compliance with the organization’s internal regulations;
• the contractor is not provided with a workplace or the necessary equipment to complete the task;
• payment under the contract should not overlap in time with the salary payment deadlines established by the company, a fixed guaranteed amount of payments is not allowed;
• engaging a contractor under a contract to perform overtime work or sending him on a business trip at the expense of the employer.

The certificate of completion of work is a mandatory part of the GPC agreement

An indispensable condition for the correct drawing up of a civil contract is the execution of a certificate of completion of work upon completion of the prescribed task. The document can have any form, it is important to have the required attributes:

• document's name;
• date of;
• indication of the customer organization and contractor data;
• transfer of the completed amount of work with certain units of measurement and the amount of monetary remuneration;
• signatures and details of the contractor and the customer.

Important: since the GPC agreement is concluded for a specific period of time, in order to continue the activities of the contractor, a new agreement must be drawn up, listing a different scope of work. The acceptance certificate is drawn up in addition to each contract.

Probationary period for a fixed-term employment contract

What is a probationary period in a fixed-term employment contract? This is a kind of test of the employee’s competence. That is, the desire to find out whether he can cope with all the necessary responsibilities.

But there are some nuances that need to be taken into account. For example, a trial period for a fixed-term contract. In general, it can only be established if the contract period varies from 2 to 6 months. And the probationary period can be no more than 2 weeks.

And if a fixed-term contract is concluded for less than 2 months, there can be no talk of any probationary period.

What risks does an employee take when applying for employment under a GPC agreement?

From a legal point of view, a civil law contract is a completely acceptable alternative to a regular employment agreement. In certain situations, a contract or agency agreement may be more beneficial for the employee:

• a civil contract does not oblige the employee to visit the office every day - the assigned amount of work is carried out at any time convenient for the person;
• the performer does not have a direct supervisor, he acts on his own behalf and is responsible only to himself;
• The contractor is not tied to a specific company; if he has the potential, he can cooperate with several organizations, which will significantly increase his remuneration.

At the same time, a citizen working under a civil law contract is not protected from the whims of the customer by the provisions of labor legislation. The negative consequences of civil legal contracts are as follows:

• the performer does not have the right to any type of leave (annual, educational, maternity leave);
• in case of illness, time spent on treatment is not paid;
• an employee registered under a GPC agreement has a “gap” in his work experience;
• the remuneration received by the contractor under a civil contract is not subsequently taken into account when calculating average earnings (to pay for vacations or social benefits);
• if the assigned task is completed in violation of the deadline, the customer has the right to apply penalties to the contractor;
• The customer may, on his own initiative, terminate the contract at any time before its expiration. In the best case scenario, the contractor will receive only part of the amount due to him, in the worst case, he will be left without remuneration.

Applying for a job without a work book is possible. Ultimately, the guarantee of compliance with legal relations between an employee and an employer is not an entry in the work book, but a correctly completed contract. If an employee has a choice, then it makes sense to give preference to a standard employment contract. In situations where the employer insists on employment under a GPC agreement, you should protect yourself as much as possible by carefully studying the terms of the contract.

Unofficial employment

But the employer must understand that if an employee violates something or causes damage to the company, then it is impossible to hold him accountable and officially recover the damage, since the employee is not registered. Maximum - the employer will not pay wages, but will not be able to go to court or law enforcement agencies, he will not have evidence of an employment relationship. In this case, the employee can go to court at any time, and if the employment relationship is proven, the employer will have to pay him wages, as well as other due payments (compensation for unused vacation, moral damages, penalties for delayed wages). Moreover, the salary may be collected again, because the employer will not be able to prove that the work was paid. In addition to payments to the employee, it is necessary to take into account that failure to draw up an employment contract is a separate violation provided for in paragraph 4 of Art.