Consequences of actual admission to work. Actual admission to work: legal assistance to the employee

21.09.2019

“The Code allows actual admission to work with the knowledge or on behalf of the employer or his representative as a basis for the emergence of an employment relationship, regardless of whether employment contract properly formatted. It should be borne in mind that this legal fact will give rise to labor relations, if the employee has started to perform labor function without a written employment contract. In this case, the employer is obliged to draw up an agreement within three days from the date of commencement of work. in writing” Commentary on the Labor Code Russian Federation/Ed. K.N. Gusova. - M.: Prospekt Publishing House LLC. 2003 - P. 59.

According to para. 7 tbsp. 16 of the Labor Code of the Russian Federation - “In cases and procedures established by law, other regulatory legal act or charter (regulations) of an organization, labor relations arise on the basis of an employment contract as a result of: actual admission to work with the knowledge or on behalf of the employer or his representative, independently depends on whether the employment contract was properly executed.”

Actual admission to work is determined by the presence of the following circumstances:

a) the employee actually started work (i.e., began to perform a labor function that he was supposed to perform under the employment contract that had not yet been properly executed);
b) this happened with the knowledge of the employer (if his representative). It doesn’t matter that the latter will not directly give permission: the main thing is that he did not prohibit starting work. Thus, along with the written form of the agreement, Art. 67 of the Labor Code also distinguishes another form of employment contract, namely “by actual admission to work”;
3) upon “actual admission to work,” the employer is obliged (and not only has the right) to draw up an employment contract with the employee in writing. In this case, the period for drawing up an employment contract cannot exceed three calendar days.

When an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three days from the date the employee is actually admitted to work. Circumstances indicating the actual admission of the employee to work labor responsibilities, can serve as: issuing a pass to enter the building occupied by the employer; performance of certain work on behalf of management (any written orders, documents addressed to the employee) indicating the employee’s last name, written materials completed by the employee depending on the nature of the specific work, payment wages.

Thus, in the case of I., who filed a lawsuit against Tekstilstroy OJSC for reinstatement at work, recovery of wages for forced absence, compensation for moral damage, payment of arrears of wages, materials from the judicial practice of the Sosnovsky District Court of the Chelyabinsk Region were used., The following facts and documents were accepted as evidence of I.’s actual admission to work:

“The court found that I. was allowed to work as a security guard at Tekstistroy OJSC from September 28, 1997. This circumstance is confirmed:

The testimony of witness L., who explained to the court that he worked in this organization from July 1, 1997 to April 1998. In the fall of 1997, they had a vacancy, and he invited I. to talk to the boss. I. called the boss and was accepted. After working for a little over a month, I. fell ill, and the boss fired him, as if for absenteeism. He claims that I. worked with him as a security guard in October-November 1997. The operating hours were every three days. When hiring, an employment contract was drawn up; no entry was made in the work book. I received my salary once a week using a cash receipt. When accepting a shift, I walked around the area with the person handing over the shift, checking the locks, windows, and vehicles. We signed in notebooks about the delivery and acceptance of duty, and then started a journal. When the magazine became dilapidated, it was replaced with a student notebook. The log of reception and delivery of duties and vehicles, in which there are entries from April 17, 1996 to October 20, 1997. From January 23 to June 29, 1997, the log contains entries on the acceptance and delivery of duty by I. It is noteworthy that when accepting duty, I., unlike other guards, always made comments on the state of the protected area, as evidenced by his entries in the log . I.’s signature and his notes appear again in the journal on September 28, 1997. The testimony of witness L., who confirmed that it was this journal that he filled out during the period of his work in this organization. Witness L. identified both the signature and notes of I. The conclusion of a handwriting examination dated January 19, 2000, according to which “The signatures executed in the log of reception and delivery of duties and vehicles for the period from September to October 20, 1997 belong to I, L., M. , G., and not to other persons. Handwritten texts in the duty log for the period from September to November 20, 1997 on behalf of I. were made by I. himself, and not by another person, on behalf of L., by L. himself, and not by another person.”

Analyzing the norms of the Labor Code of the Russian Federation, A. Kurennoy points out: “The Labor Code of the Russian Federation spells out in some detail the mechanism for the entry into force of an employment contract (Article 61 of the Labor Code of the Russian Federation). The employment contract begins to operate from the day it is signed by the employee and the employer, unless otherwise established by federal laws, other regulatory legal acts or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative. The provision has practically been preserved, according to which actual admission to work is considered the conclusion of an employment contract, regardless of whether the hiring was properly formalized... In this regard, the case of Kirichenko, who filed a lawsuit against JSC Areopag EKS LTD, is of interest "on making entries in the work book about hiring as a chief specialist and about dismissal due to staff reduction, as well as on the collection of wages and two-month severance pay due to staff reduction. The case was considered by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, which satisfied the protest of the Deputy Chairman of the Supreme Court of the Russian Federation and indicated the following. In refusing to satisfy the claims, the court proceeded from the fact that the fact of concluding an employment agreement between the plaintiff and the defendant was not confirmed at the court hearing. However, we cannot agree with this conclusion. An employment contract is concluded in writing. Hiring is formalized by order (instruction) of the administration, and actual admission to work is considered the conclusion of an employment contract, regardless of whether the hiring was properly formalized. In this regard, an employment contract is considered concluded if the performance of work without issuing an order is entrusted to an official who has the right to hire, or when the work was performed with his knowledge. From the attached case of the Presnensky Intermunicipal Court of the Central administrative district Moscow, it is seen that the plaintiff was actually allowed to work, carried out the instructions of the vice-president of Areopag EKS LTD JSC and received a salary for two months. Refusing to satisfy the demands for making an entry in the work book about hiring and dismissal due to staff reduction, the court referred to the absence of a chief specialist in the approved staffing table presented by the defendant. However, this does not indicate that the plaintiff was not hired and did not perform it. The absence of an appropriate position in the staffing table is grounds for dismissal of an employee due to staff reduction. The court did not take into account the circumstances indicating that the plaintiff was actually allowed to work by a person with the right to hire, that his tasks were completed, that wages were paid (which was not disputed by the defendant at the court hearing), that he had a pass to enter the building occupied by the defendant, therefore unreasonably refused to satisfy the claims and did not apply the norms of substantive law corresponding to these legal relations” Kurennaya A.M. Legal regulation of concluding an employment contract and transfers to another job. // Legislation. 2002. No. 11. P. 27.

Thus, actual admission to work is the basis for the emergence of labor relations between the employee and the employer. The actual admission of an employee to work is confirmed by any written documents from the employer addressed to the employee, the issuance of wages to the employee, witness statements and other evidence.

If, as a result of an interview or otherwise, the employer and employee have reached agreement on all the essential terms of the employment contract, then the process of formally consolidating the relationship between the employee and the employer begins. This process generally consists of two stages. First, an employment contract is concluded in writing, which must contain everything essential conditions, as they are defined in Article 57 of the Labor Code of the Russian Federation. Then within three days from the moment the employment contract is signed, the employer formalizes employment by issuing an order for employment (Article 68 of the Labor Code of the Russian Federation). The order is issued on the basis of an employment contract, so the content of the order must correspond to the terms of the agreement reached.

However, in practice, very often employers prefer not to enter into a written employment contract, limiting themselves to only an oral agreement regarding the employee’s job function, working conditions and wages. In doing this, employers are guided by various circumstances: on the one hand, the lack written contract creates significant difficulties for the employee when defending his rights in court; on the other hand, this scheme allows him to evade paying taxes, pension and other contributions, and from maintaining numerous personnel documentation. In general, this practice is very common, therefore, enshrining in labor legislation the norms on actual admission to work makes it possible to cover the relevant relations within a legal framework, extend labor law norms to these relations, and thereby protect the rights and legitimate interests of the employee.

The essence legal regulation actual admission to work is as follows. According to the provisions of Article 67 of the Labor Code of the Russian Federation, an employment contract that is not properly executed (i.e. in writing) is still considered concluded if the employee has started work with the knowledge or on behalf of employer or his representative. According to the explanations of the Plenum of the Supreme Court of the Russian Federation, which are contained in its Resolution No. 2 of March 17, 2004, the representative of the employer in the above case is a person who, in accordance with the law, other regulations, constituent documents of a legal entity, local regulations or by virtue of the employment contract concluded with this person, he is vested with the authority to hire employees. The consent or awareness of such a person regarding the actual admission to work entails the emergence of an employment relationship.

Thus, in the absence of a written form, the employment contract is still considered concluded and comes into force from the moment of actual admission to work (Article 61 of the Labor Code of the Russian Federation). This means that the emergence of labor relations is not caused by the employer issuing an order (instruction) on hiring, therefore the employer cannot refer to the absence of this order to justify the absence of labor relations. As evidenced by the Determination of the Judicial Collegium of the Supreme Court for Civil Cases dated December 15, 1998, even the absence in the staffing table of an enterprise of a position to which the employee was actually admitted is not at all proof that the employee was not hired and did not perform it.

Within three days after the employee is actually allowed to work, the employer is obliged to draw up an employment contract with him in writing (Article 67 of the Labor Code of the Russian Federation). The consequences of the employer’s failure to fulfill this obligation are not specified in the Code, however, it can be assumed that the employee’s rights should not be infringed due to the fact that the other party to the contract has not fulfilled his obligations. Therefore, relations that arose from the moment of actual admission to work will be qualified as labor relations, and labor law standards will be applied to them, even if the contract is not properly formalized. In general, it should be noted that the legislator proceeds from the fact that it is the employer who bears the burden of complying with all the formalities that are necessary to conclude an employment contract. Therefore, violation of the rules on the form of the employment contract, its content, the procedure for maintaining personnel documentation and the registration of employment (i.e., issuing the appropriate order) should not adversely affect the rights and legitimate interests of the employee.

However, it should be noted that the employee is often to a greater extent, rather than the employer, is interested in the proper execution of the employment contract. Otherwise, his relationship with the employer will suffer from uncertainty, and most importantly, in the future the employee may face the problem of proving the fact of concluding an employment contract, and most importantly, the terms of the concluded contract. Therefore, if the employer does not fulfill his obligation to formalize the employment contract in writing (after three days from the date of actual admission to work), the employee has the right to file a claim in court on recognition of an employment contract concluded on certain conditions . Along with the requirement for recognition, the employee may make any other claim that, in accordance with labor legislation, arises from his rights as an employee (for example, a claim for recovery of wages, reinstatement at work, etc.). A court decision to recognize an employment contract as concluded entails the employer’s obligation to make appropriate entries in the employee’s work book.

The fact of concluding an employment contract and its content (the terms of the employment contract that were verbally agreed upon by the parties) can be proven by the employee using any evidence allowed by civil procedural law, including testimony of witnesses. Thus, the actual admission of an employee to perform labor duties may be evidenced by the following circumstances: issuing a pass to enter the building occupied by the employer (this evidence, in particular, was noted by the Judicial Collegium of the Supreme Court of the Russian Federation in its Ruling dated December 15, 1998); performing work on behalf of management, as evidenced by the results of this work (for example, written materials completed by the employee, depending on the nature of the work); any written orders and other documents addressed to the employee indicating the employee’s last name; written statements from the employee addressed to the administration, signed by representatives of the employer (for example, an application for leave); payment by an employer of wages to an employee.

The conclusion of an employment contract, as a rule, is always preceded by an interview stage between the employer and the applicant, based on the results of which the question of hiring is decided. Novella Labor Code is the norm of Art. 64, according to which the employer, at the request of a person who is denied an employment contract, is obliged to provide the reason for the refusal in writing. Having received a written refusal, a person who considers his right to be violated can go to court with a demand for the forced conclusion of an employment contract. A court decision on the conclusion of an employment contract made in such a case is the basis for the emergence of an employment relationship (Article 16 of the Labor Code of the Russian Federation).

According to the recommendations given by the Plenum of the Supreme Court of the Russian Federation in its Resolution No. 16 of December 22, 1992 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes,” an employment contract that is concluded on the basis of a court decision must be concluded retroactively - from the day when the employee applied to the administration about applying for a job and received an unlawful refusal. In addition, if, as a result of refusal or untimely conclusion of an employment contract, an employee had forced absenteeism, his payment is made in the manner established for payment of forced absenteeism of an employee illegally dismissed from work (i.e., Article 234 of the Labor Code of the Russian Federation is to be applied by analogy). It seems that the position of the Supreme Court, adopted by it back in the period of Soviet legislation, does not contradict the norms of the Labor Code of the Russian Federation, and therefore may well be applied by the courts today.

It should be taken into account that in practice, difficulties often arise in establishing the unlawfulness of an employer’s refusal to conclude an employment contract. Refusal to conclude an employment contract is unlawful if it does not meet the requirements legality and validity. Depending on which of these requirements is violated, the legal regimes for challenging the corresponding refusals also differ.

From the point of view legality refusal to conclude an employment contract will be unlawful in several cases:

· 1) If the employer has an obligation to hire a specific employee. Thus, employment cannot be refused to an employee invited to work by way of transfer from another organization by agreement between the heads of both of these organizations. In addition, the administration is obliged to conclude an employment contract with persons sent to work by the employment service against a quota (for example, disabled people). In a number of cases, the employer is obliged to restore the previously existing employment relationship with his employees. former employees(for example, with members of parliament - after the end of their term of office). In all cases of this kind, when appealing against the actions of the administration, it is necessary to prove the fact of refusal to conclude an employment contract and the existence of an obligation to conclude an agreement.

· 2) Even if the employer does not have an obligation to conclude an agreement with a specific person, refusal to conclude it will be illegal if the reasons for the refusal are illegal. This basis for the illegality of refusal to conclude an employment contract follows from the general legal principle of non-discrimination. Thus, Article 64 of the Labor Code of the Russian Federation prohibits any restriction of rights when concluding an employment contract, which is due to circumstances not related to the business qualities of employees (for example, restrictions depending on gender, race, nationality, language, etc.). It is important to note that the Labor Code, unlike the Labor Code, separately establishes a provision prohibiting discrimination depending on place of residence and the presence or absence of registration. Pregnancy or the presence of children are also considered illegal reasons (refusal for such reasons may result in the employer being held criminally liable on the basis of Article 145 of the Criminal Code). In order to achieve a positive court decision when challenging the actions of the administration in similar situations, it is necessary to prove a number of circumstances: that the employer made an offer about the vacancies available to him (for example, by posting a message in the newspaper), that negotiations on concluding an employment contract were actually held between the employer and the applicant, that the conclusion of the contract was refused, and that the reasons for the refusal are illegal .

Regarding the requirement validity, then its violation occurs in the case when the employer incorrectly assessed the employee’s business qualities, as a result of which the job was refused. The legislation does not provide for the possibility of appealing against the administration’s decision on the grounds that the employer’s assessment business qualities employee is unreasonable. Some authors believe that in this case it is possible to demand compensation for moral damage caused (it should be noted that this requirement can be stated in any situation of unlawful refusal to conclude an employment contract). However, if the administration’s reference to the inconsistency of the employee’s business qualities with the employer’s requirements is clearly unfounded, and the actual reasons for the refusal are discriminatory in nature, a demand for compulsion to conclude an employment contract may still be made.

In conclusion, it should be noted that the norms of labor legislation on unlawful refusal to conclude an employment contract are still largely in the realm of theory and are implemented relatively rarely in practice. This is due both to shortcomings of legal regulation and to a number of other circumstances. Thus, employers in practice avoid in every possible way issuing a written reasoned refusal to conclude an employment contract.

Certification.

The employee’s inadequacy due to insufficient qualifications must be confirmed by certification results, i.e. conclusion certification commission. The procedure for certification is established by labor legislation and other regulations containing labor law norms, LNA, adopted taking into account the opinion of the representative body of workers. The employer does not have the right to terminate employment. agreement with the employee, if no certification was carried out in relation to the employee or the certification commission came to the conclusion that the employee was suitable for the position held. When conducting certification, which may serve as a basis for dismissal of an employee in accordance with clause 3, part 1, art. 81 of the Labor Code, the certification commission must include a member of the commission from the corresponding elected trade union body. In the absence of a conclusion from the certification commission, the employee cannot be dismissed under clause 3, part 1, art. 81 TK. Dismissal on this basis is not permitted if the employee has not been subject to certification. An employee who is subject to dismissal due to insufficient qualifications based on the results of certification must be offered another job. If it is impossible to transfer an employee with his consent to another job, he is subject to dismissal. Dismissals of workers who are members of the trade union are carried out taking into account the reasoned opinion of the elected trade union body of the organization, and the heads (their deputies) of the elected trade union collegial bodies of the organization, its structural divisions (not lower than shop units and equivalent to them), not exempt from their main work, - with prior consent of the relevant higher elected trade union body.

IN recent years management has paid increased attention to personnel assessment and certification. Today it is difficult to imagine an effective model of personnel management without the institution of certification.

Personnel certification- personnel activities designed to assess the compliance of the level of work, qualities and potential of the individual with the requirements of the activities performed.

Main purpose (task) of certification- identify the potential capabilities of an employee (person) and, if necessary, send for additional training, as well as financially encourage and motivate the most competent and experienced.

Personnel certification serves as the legal basis for transfers, promotions, awards, salary determination, as well as demotions and dismissals. Certification is aimed at improving the quality of personnel, determining the degree of workload of workers and their use in their specialty, improving the style and methods of personnel management. She
aims to find reserves for growth, increase labor productivity and employee interest in the results of his work and the entire organization, the most optimal use of economic incentives and social guarantees, as well as creating conditions for a more dynamic and comprehensive development personality.

There are four types of employee certification:

1. Another certification is mandatory for everyone and is held at least once every two years for management personnel and at least once every three years for specialists and other employees.

2. Certification after the probationary period is carried out in order to develop reasonable recommendations for the use of a certified employee based on the results of his labor adaptation in a new workplace.

3. Purpose promotion certification is to identify the potential capabilities of the employee and his level vocational training to occupy a higher position, taking into account the requirements of the new workplace and new responsibilities.

4. Certification upon transfer to another structural unit necessary in cases where a significant change occurs job responsibilities and the requirements of the new workplace.

Certification is carried out in all departments of the organization. The list of positions subject to certification and the timing of its implementation are established by the head of the organization.

Article 61 of the Labor Code states: An employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise established by this Code, other federal laws, other regulatory legal acts of the Russian Federation or an employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his authorized representative. Registration of the employee’s actual admission to work should be carried out only if the employment contract has not been properly concluded?

Answer

Answer to the question:

In practice, first an employment contract is concluded with the employee, then he is allowed to work. But there are times when an employee needs to be allowed to work, but for some reason there is no opportunity to sign an employment contract. At this moment, the actual admission to work is carried out.

However, the law does not relieve the employer from the obligation to formalize all necessary documents, but only changes the stages of the hiring procedure and establishes features.

Part 2 Art. 67 of the Labor Code of the Russian Federation provides that when an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date of the employee’s actual admission to work. There are no exceptions from general rule Part 2 Art. 68 of the Labor Code of the Russian Federation: the employer’s order for employment is announced to the employee against signature within three days from the date of actual start of work.

A situation in which an employee is allowed to work before a written employment contract is concluded is exceptional. Therefore, in order to protect the rights of the employee, the legislator establishes additional guarantees: even if subsequently the necessary documents are not properly executed, the employment contract is considered concluded from the moment the employee is actually admitted to work.

Labor legislation does not regulate the procedure for actually admitting an employee to work and does not directly stipulate that in this case any documents must be drawn up. In part 2 art. 67 of the Labor Code of the Russian Federation focuses only on the fact that “the employee began work with the knowledge or on behalf of the employer or his representative.”

Details in the materials of the Personnel System:

Literature:

Actual permission to work: important changes

Do labor relations arise if a person is allowed to work by an authorized person?

- Yes, they do arise.

Is it possible to involve an employee in disciplinary liability for permission to work without the knowledge of the employer?

- Yes, you can.

Does an employee have to work two weeks if he decides to quit the day after being allowed to work?

- Yes, I should.

On January 1 of this year, changes to the Labor Code regarding admission to work came into force, in particular, it specifies who has the right to admit individuals to work, what are the consequences of actual admission to work by an unauthorized person (Article 12 of Law No. 421 -FZ).

Related articles:

“Financial responsibility of the employee: important recommendations"(No. 11, 2013)

“We allow an employee to work until an employment contract is concluded” (No. 12, 2010)

Now, an employer or an authorized representative can allow a citizen to perform work (part two of Article 67 of the Labor Code of the Russian Federation). An authorized representative of the employer may be an employee of the organization whom the employer has vested with such powers.

The Labor Code does not establish how to authorize a representative of the employer to actually allow new employees to work. The employer independently chooses the appropriate method of empowering his representative.

You can register the powers of a representative in constituent documents organization, local normative act, employment contract or job description(Clause 12 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). If the authority is vested in the head of a separate structural unit(for example, a branch), then its powers are enshrined in the regulations on the division and in the power of attorney (Article 55 of the Civil Code of the Russian Federation).

You can also empower an employee by issuing an order. Indicate in the order the new rights of the representative and familiarize him with the administrative document (sample below). Because this function will be new for such an employee, it is necessary to obtain his consent.

download sample

Advice

If you want to establish a probationary period for an employee, enter into an employment contract with a probationary clause until the employee is actually admitted to work (part two of Article 70 of the Labor Code of the Russian Federation)

If a person has begun to perform official duties with the knowledge or on behalf of the employer or his authorized representative, the employment contract with the citizen is considered to have already been concluded, even if it is not drawn up in writing (part two of Article 67 of the Labor Code of the Russian Federation). From the moment of admission to work, the employee acquires all rights and obligations provided for by labor legislation. An employment contract must be drawn up in writing within three working days from the day the employee was actually allowed to work. In this case, the employment contract must indicate the start date of work, that is, the date of actual admission to work (part two of Article 57 of the Labor Code of the Russian Federation)

The Labor Code now directly provides that actual admission to work without the knowledge or instructions of the employer or his authorized representative is prohibited (part four of Article 16 of the Labor Code of the Russian Federation).

We issue actual permission to work

To formalize an employment relationship with a person admitted to work, an authorized representative of the employer must draw up a memorandum on admission to work addressed to the person responsible for processing the employment (for example, the head of the personnel department). It is also advisable to notify the accounting department about the actual admission of the employee to work. The report is drawn up in free form indicating full name new employee and actual start date (sample below).

download sample

Based on the specified memo, an employment contract is concluded with the new employee and an employment order is issued according to the unified form No. T-1 or another sample accepted in the organization (sample below)

download sample

Confirmation of actual permission to work

How can an employee prove that he was actually allowed to work if an employment contract was not concluded with him and an employment order was not issued? There is a lot of evidence that an employee can resort to if a dispute arises.

In the "Personnel Documents" section

you will find examples: employment contract (), employment order (), entry in the work book ()

If the employee worked with documents, evidence will be that he has copies of documents or reports that he prepared for the employer. Perhaps the employee can present registration numbers and the names of the documents that he prepared for the employer, written instructions or resolutions of the manager addressed to the employee.

If an employee, in the course of his activities, manufactured certain products, the numbers or codes of the parts that he manufactured may serve as evidence.

The most difficult thing is to prove the fact of performing work that is not related to material production. This work is carried out by consultants sales representatives etc. They can prove that work was performed in the interests of the employer by presenting photographs or videos from the workplace. Today, almost any phone has photo and video capabilities. You can also use video surveillance installed by the employer. If an employee declares in court that the employer has video surveillance, the court has the right to request from the employer a video recording for those days when the employee worked without formalizing an employment relationship.

Attention!

The burden of proving the existence of an employment relationship upon actual admission to work lies with the employee (cassation ruling of the Nizhny Novgorod Regional Court of December 27, 2011 No. 33-12786/2011)

In addition, employees are often given a pass to enter the employer’s territory and may be given uniforms containing elements of the employer’s corporate identity. Perhaps the employee received equipment or keys for which he signed in the employer’s documents

Evidence may include confirmation by colleagues (witness testimony) of the fact that the employee is on the employer’s premises and performing work for the employer (cassation ruling of the Krasnoyarsk Regional Court dated January 11, 2012 No. 33-77). The presence of the above evidence will help the employee prove in court that he was actually allowed to work and performed work for the employer without concluding an employment contract.

Payment for work performed upon actual admission by an unauthorized person

Changes to the Labor Code provide that if an employer refuses to formalize an employment relationship with a citizen who has been allowed to work by an unauthorized person, the employer is obliged to pay the employee’s labor (part one of Article 67.1 of the Labor Code of the Russian Federation). Payment is made for the time actually worked or work performed.

However, the law does not establish the amount of remuneration without formalizing an employment relationship. The employer can pay for the work based on the salary of the position in which the person admitted to work actually worked.

In any case, the wage must be no less than the federal or regional one (if the organization has joined the regional tripartite agreement on the minimum wage) minimum size wages calculated in proportion to the time worked (Articles 133, 133.1 of the Labor Code of the Russian Federation). Please note that if the employee does not agree with the amount of payment for his work, he can go to court.

Advice

Pay for the actual work performed based on the regional minimum wage

Responsibility for allowing a person to work without formalizing an employment relationship

Responsibility for allowing a person to work without formalizing an employment relationship may be borne by the employer, his authorized representative, as well as the employee who allowed individual to work without being authorized by the employer.

If an employer has not drawn up a written employment contract within three days, he may be held administratively liable for violating labor laws. In this case, officials face an administrative fine in the amount of 1,000 to 5,000 rubles, legal entities– from 30,000 to 50,000 rubles or administrative suspension of activities for up to 90 days (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Attention!

No more than 20 percent can be withheld from an employee’s monthly salary (part one of Article 138 of the Labor Code of the Russian Federation)

Bringing an employer to administrative liability does not relieve him of the obligation to draw up an employment contract with an employee in writing. An unauthorized employee who allows a person to work without formalizing an employment relationship may be held liable by the employer, including financial liability, if the employer does not recognize the employment relationship (part two of Article 67.1 of the Labor Code of the Russian Federation).

Rules for attracting an employee to financial liability provided for by Chapter 39 of the Labor Code. The employee must compensate the employer for the damage caused to him in connection with unlawful actions. In this case, the amount of damages to be compensated should not exceed the average monthly earnings of the guilty employee (Article 241 of the Labor Code of the Russian Federation).

The employer is obliged to find out the causes of the damage. To do this, you must request from the employee written explanations. If the employee refuses to give an explanation, a corresponding act must be drawn up (part two of Article 247 of the Labor Code of the Russian Federation).

If the amount of damage does not exceed the employee’s average monthly earnings, the damage caused can be recovered from the employee by order of the employer. This must be done no later than one month from the date of final determination of the amount of damage (Article 248 of the Labor Code of the Russian Federation).

Also, the tortfeasor can compensate for the damage voluntarily. If the guilty employee has agreed to voluntarily compensate for the damage caused, he must submit a written undertaking to the employer.

If the month period from the date of final determination of the amount of damage has expired or the employee does not agree to voluntarily compensate for the damage, the amount of which exceeds his average monthly earnings, the employer must go to court to recover the damage (part two of Article 248 of the Labor Code of the Russian Federation).

Also, an unauthorized employee may be subject to other types of liability - disciplinary or administrative. In particular, an administrative fine in the amount of 1,000–5,000 rubles may be imposed on officials for violating labor legislation (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Remember the main thing

Note the experts who took part in the preparation of the material:

Tatiana VASILYEVA,

lawyer, leading expert of the magazine “Personnel Business”:

– The employer or his authorized representative has the right to allow a person to work. The employer must specifically authorize its representative to allow new employees to work. Actual admission to work without the knowledge or instructions of the employer or his authorized representative is prohibited (part four of Article 16 of the Labor Code of the Russian Federation).

Margarita ERMOLAEVA,

lawyer, consultant, independent expert (Moscow):

– When allowing someone to work as an unauthorized employee, the employer is obliged to pay for the work of the person actually admitted. Payment is made for time worked or work performed. In this case, an unauthorized employee may be held liable by the employer, including financial liability.

Related documents

Document	Will help you
Article 12 Federal Law dated December 28, 2013 No. 421-FZ “On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law “On Special Assessment of Working Conditions”” (hereinafter referred to as Law No. 421-FZ)	Find out what changes regarding the actual admission of workers to work have been made to the Labor Code
Articles 57, 67 of the Labor Code of the Russian Federation	Remember the requirements for the content and form of an employment contract
Article 5.27 of the Code of Administrative Offenses of the Russian Federation	Learn about liability for violation of labor laws

The material was prepared by Irina PODLESNYKH, Head of the Human Resources Department of Quality Supervision Agency CJSC (Moscow)

With respect and wishes for comfortable work, Ekaterina Zaitseva,

HR System expert

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Personnel officer. Labor law for the personnel officer", 2008, N 6 Actual admission to work In accordance with Art. 67 of the Labor Code, when a person begins work with the knowledge or on behalf of the employer or his representative, the employment contract is considered concluded, even if it is not in writing. This situation is called actual permission to work. Actual admission is considered an improper procedure for concluding an employment contract, but, despite this circumstance, it is expressly provided for in Art. Art. 61 and 67 of the Labor Code as the basis for the emergence of labor relations. Currently, in enterprises, especially in medium and small businesses, persons hired for work are organized with a so-called internship. Its duration is set from two to five days, but it happens that the very next day a person is suspended from work.

Actual permission to work = conclusion of an employment contract?

Actual admission is considered an improper procedure for concluding an employment contract, but, despite this circumstance, it is expressly provided for in Art. Art. 61 and 67 of the Labor Code as the basis for the emergence of labor relations. In this situation, the employer is obliged to draw up an employment contract in writing and provide it to the employee for signature no later than 3 working days from the moment he began to perform his job duties. During the same 3 days, the employer is obliged to prepare an order for employment, announce it to the employee against signature, and give a copy of this order to the employee upon his request.

In conclusion, I would like to remind you that labor relations, in accordance with the law, arise from the first day of the so-called internship. A person admitted to such a professional suitability test is recognized as an employee, i.e.

What are the consequences for an employer of actually allowing an employee to work?

An agreement indicating the test period is drawn up before the start of work in in writing in duplicate. Each copy must be signed by the head of the organization or other authorized representative of the employer and the person allowed to work. Execution of an employment contract As mentioned above, an employment contract must be drawn up in writing no later than three working days from the date of the employee’s actual admission to work (Part.
2 tbsp. 67 Labor Code of the Russian Federation). According to Part 2 of Art. 57 Labor Code of the Russian Federation prerequisite for inclusion in an employment contract - the start date of work, therefore, in the employment contract with an employee admitted to work, the actual date of start of work, preceding the date of conclusion of the employment contract, is indicated. If the parties entered into an agreement to establish a test before starting work, this condition must also be reflected in the employment contract (Appendix 4).

Actual permission to work

It is impossible to give a resigning employee a copy of SZV-M. According to the law on personal accounting, when dismissing an employee, the employer is obliged to give him copies of personalized reports (in particular, SZV-M and SZV-STAZH). However, these reporting forms are list-based, i.e. contain information about all employees. This means transferring a copy of such a report to one employee means disclosing the personal data of other employees.
< … Компенсация за unused vacation: ten and a half months go in a year When dismissing an employee who has worked in the organization for 11 months, compensation for unused vacation must be paid to him as for a full working year (clause 28 of the Rules, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 No. 169). But sometimes these 11 months are not so spent.< …

Actual permission to work

Important

However, in the future they will help confirm the legality of the employment relationship: if necessary, it is the written order of admission that will be proof that the three-day period for concluding the employment contract was met. In addition, written documents confirm (or refute) the fact that the employee was allowed to work by an authorized person. Preparation of documents As a rule, the need for the actual admission of an employee to work is recorded in a memorandum (Appendix 1) addressed to the head of the organization or another authorized person.

The memorandum also indicates the reasons why the employee should actually be allowed to work and determines the date of return to work.

We issue actual permission to work

The main document confirming the employee’s work activity is, in accordance with Art. 50 TK work book established sample. And although admission can be made by oral order of the authorized official, we recommend that you obtain actual permission to work in writing, for example, a memorandum, an order on actual permission to work. Such documents will confirm the start of work and will confirm the fact that labor relations have arisen.

Registration of actual permission Let's consider the registration of actual permission to work step by step. Option 1 Step 1. We receive from the person admitted to work the documents required for employment (Article 26 of the Labor Code). Step 2. We introduce the employee, upon signature, to the assigned work, conditions and remuneration, and explain his rights and responsibilities.
Step 3.

Is the actual admission of an employee to work considered the conclusion of an employment contract?

The applicant is given overalls, and during the working day he demonstrates his professional suitability. The next day, an unexpected circumstance happens. The applicant is denied employment, explaining that the director did not sign the employment contract and the hiring order.

The applicant is given special clothing, and during the working day he demonstrates his professional suitability. The next day, an unexpected circumstance happens. The applicant is denied employment, explaining that the director did not sign the employment contract and the hiring order.
In the course of resolving a labor dispute, taking into account the absence of a written employment contract and a hiring order, it is concluded that no employment relationship has arisen with this employee. But it turns out that not everything is so simple. In accordance with Art. 67 of the Labor Code, when a person begins work with the knowledge or on behalf of the employer or his representative, the employment contract is considered concluded, even if it is not in writing. This situation is called actual permission to work.

Is actual admission to work considered the conclusion of an employment contract?

On this page:

What does “approved to work in fact” mean?
Lines from the Labor Code of the Russian Federation
Employment contract = actual admission
How is actual permission to work obtained?
Evidence of actual permission to work
Actual admission and probationary period
Consequences of admission to work after the fact

The Labor Code aims to streamline the relationships between labor parties, therefore the positions enshrined in it have legal consequences. This also applies to the grounds for the emergence of these relations, one of which is actual admission to work. Let’s analyze how this can manifest itself in practice, what the consequences are for the employee and employers, and what the consequences may be in the event of dishonest fulfillment of one’s legal duties.

A fixed-term employment contract was concluded with him, which indicated that he was accepted for a while labor leave main employee (Article 293 of the Labor Code of the Republic of Belarus (hereinafter referred to as the Labor Code)). At the end of the term, the employment contract was terminated under clause 2 of Art. 35 of the Labor Code, the employee was issued a work book and the final payment was made. A month later, having failed to get into the university through the competition, the young man returned to the organization and was allowed by the foreman to do the previously performed work without paperwork.

Can actual admission to work be considered the beginning of the employment contract? Legal fact establishing labor relations The procedure for hiring in accordance with current labor legislation looks like this: 1) conclusion of an employment agreement (contract); 2) issuance of an order (instruction) on hiring (part four of Article 25 of the Labor Code).
It also happens: the employer gives verbal consent to the heads of structural units to hire workers, and then the head of the structural unit makes a decision to allow the employee to work without proper registration, and then notifies the HR specialist. For reference: labor legislation does not provide for an employee to write an application when applying for a job, however, the application form is provided for by the Unified System of Organizational and Administrative Documentation (USORD), approved by order of the Director of the Department for Archives and Records Management of the Ministry of Justice of the Republic of Belarus dated May 14, 2007 No. 25. The employment contract has not been drawn up. , but is considered concluded. It should be remembered that actual admission to work is the beginning of the employment contract, regardless of whether the hiring was properly formalized (part two of Art.
As a rule, hiring consists of the following stages: we conclude and sign an employment contract with the future employee, where a specific start date is determined, and are allowed to work. This is a standard and familiar scheme for all personnel officers. But life makes its own adjustments: for example, there is no HR department employee responsible for preparing employment contracts, or the head of the organization urgently went on a business trip and therefore cannot sign an employment contract, and the new employee had to start work “yesterday”, since under An urgent project that promises good profits is in danger of failure. In this case, actual permission to work comes to the rescue, and the future employee can begin to perform his duties even without an employment contract signed by the parties.

In itself, the actual admission of an employee to work is justified, is not recognized as a violation (up to a certain point) and is approved by law. This provision is strictly regulated, has its own deadlines and additional points, the implementation of which is mandatory. If these points are violated, we can talk about a violation of the law and the responsibility borne by the authorized person who assigned official duties to the employee.

Regulatory regulation

It can be considered effective even if it was not formalized in writing, but in fact the employee began to perform his duties. This situation has the formulation - actual admission to work. It has regulatory regulation, the violation of which becomes the basis for prosecution. FD is a position clearly limited by a time frame.

The responsibility borne by the employer towards an unauthorized employee labor activity, arises when the employer refuses to recognize the emergence of an employment relationship within a certain time and. The legislation of Russia establishes, setting out the principles for this issue in Government Resolutions and approved laws:

Part 1, Article 67 and Article 61 of the Labor Code of the Russian Federation regulates labor relations between an employee and an employer with actual access,
Article 2 of the Labor Code of the Russian Federation regulates issues of payment upon actual access of the employee,
Part 1, Article 5.27 of the Code of Administrative Offenses of the Russian Federation regulates issues of administrative liability that an employer bears in cases of violation of the law,
Article 391 of the Labor Code of the Russian Federation serves as the basis for regulating disputes on FD issues,
Part 4, Article 16 of the Labor Code of the Russian Federation regulates issues of access to work.

What is it used for and what does it mean?

There are several moments when this situation can arise:

when an employee is undergoing an internship and the employer is in no hurry to conclude an employment contract prematurely,
The employer evades paying taxes and registers,
The employer calculates this way.

The first point is quite justified. In cases where a probationary period has passed, which fully confirms the employee’s qualifications, the employer subsequently enters into an employment contract with him, thereby observing all established standards. The duration of the internship is from 2 to 5 days, sometimes longer, before passing the qualification test.

An employer has the right to refuse employment after completing an internship only if the employee cannot confirm his qualifications. and are a violation. However, in this case the law provides for complete official employment, which includes internship days.

Two last moments are an outright violation. An employee who is actually allowed to perform work, but has not concluded an employment contract with the employer, is unprotected in several directions at once:

Does not have the right to receive social security and social protection, like other employees,
He may be disadvantaged in payment for his work,
Upon dismissal, such an employee cannot count on any payments,
He doesn’t, etc.

Therefore, we can talk about insecurity at all levels.

How is FD issued?

According to the legislation, FD is not probationary period, this is already the beginning of working life. Despite the fact that in the case of FD an employment contract has not been drawn up, the employment relationship has already entered into force. The actual access of an employee without drawing up an employment contract has clear boundaries - 3 days. That is, after this period, the contract must be drawn up in writing, otherwise this moment can be considered a violation, which entails negative consequences. Since the FD is the beginning of labor activity, it must also be documented. Who issues the FD?

Directly from management
An authorized person who can prove these powers, i.e. provide documents.

Management or an authorized person draws up a memorandum authorizing the employee’s access to work. This note must be submitted to the accounting and personnel departments. It is compiled in any form. It must indicate the employee’s full name and the date when he starts work. After three days, an employment contract will be concluded with the employee on the basis of this note. The report must be registered in the local acts of the enterprise.

How to prove it

In cases where disputes arise on this issue, the employee is required to prove the FD for work. How can this be done?

Sometimes this can be quite difficult, especially in cases where the work is not related to production or paperwork. In such a situation, photographs from the place of work and videos can be useful. If there were CCTV cameras at the workplace, the court has the right to demand the provision of information from these media.
If the employee worked in production or worked with papers, then documents or the product he produced, respectively, can serve as evidence.
If an enterprise or organization operates a pass system, then an employee pass can be reliable evidence in such a situation.
And, of course, testimony of witnesses who can confirm the fact of the employee’s presence at the workplace and the performance of his job duties.

This process is quite complex; the burden of proving FD in court falls entirely on the employee.

Responsibility for actual permission to work

In this situation, both the employer or his authorized representative and the employee himself may be held liable. In addition to these persons, liability is also borne by the employee who was not authorized to involve the employee in work activities, but voluntarily took the initiative and allowed the employee to work.

Punishments against the employer.