What to do if you do not pay wages unofficially. Where to go if they do not pay a black salary? If there was informal employment

Unemployment is one of the problems of our society. In order to somehow live, many citizens work unofficially, without an employment contract.

Also, there are often cases when, although the salary is officially accrued, a smaller part of it is carried out through the accounting department, and large “gray” amounts are issued immediately to the hands of employees, without being reflected anywhere.

And often, when parting with an employee, such an employer either does not pay him anything at all, or pays only what is written in the employment contract. What can be done here?

In what cases can you recover after dismissal

First of all, it is worth understanding what the relationship is between an employee and an employer who does not draw up labor contract. However, the work itself was performed - therefore, it must be paid.

In this case, this method helps: by any means, the fact that the person worked unofficially is recorded.

Anything can be here:

Any documents that could be found. For example, if there are no accounting statements, but there are simply lists indicating the amounts for which employees signed, and a copy of such a list was obtained, this is excellent evidence.

Testimony of witnesses who saw the fact of work (best of all, when they also collect wages - and confirm each other's words).

Dictaphone recordings, videos, photos, etc.

Based on all this evidence, a statement of claim is prepared and submitted to the court. In it, the plaintiff requires payments not for labor activity, but for work performed or services rendered - within the framework of civil law.

It is impossible to predict in advance how successful such a move will be. However, there is a chance of winning the case with sufficient evidence.

What to do before dismissal

If “black” or “gray” wages are not paid, but the employee has not left yet, there is a way to put pressure on the employer.

The fact is that payments “in an envelope” are almost always tax fraud. Therefore, in a conversation with the employer, you can hint that you are going to complain to the local branch tax office. Sometimes it helps to get paid in full.

True, it is worth remembering: most likely, after that you will have to leave - it is unlikely that the owner will tolerate an obstinate worker.

In addition, you need to remember: a black salary is a double-edged sword. The employer breaks the law - but the employee also hides his income and does not pay VAT. Usually there are not the amounts due to which the tax authorities will start a case - however, there is a risk that the employee will be held liable.

You can also go to court, but not for the recovery of unpaid amounts, but with a demand to recognize the employment contract as concluded. The point is that Art. 16 of the Labor Code of the Russian Federation indicates that labor Relations arise from the moment when the employee was admitted to work - even if the employment contract was not concluded, or was concluded with violations. In this case, the problem will not be so much in proving the fact of work, but in the specific amounts of a gray or black salary.

Where else to complain

In addition to the tax worker who is not paid a black or gray salary, it makes sense to write a complaint to the prosecutor's office. Employees of this body will not help to recover money, but the materials of the check may turn out to be evidence in court.

In addition, the very fact of applying to the prosecutor's office may force the employer to pay the missing amount. This, however, refers more to psychological pressure - but, however, the method often works.

Complaints can be filed either by mail or in person. If you call the prosecutor's office, you can find out how and when such a reception is carried out even from the prosecutor himself. Assistants are accepted on any working day.

How much more effective is the appeal to labor inspection. This can be done both in the traditional way, by writing a statement and giving it to the duty officer, or using online services. In the latter case, you still have to fill out an application on paper - but the inspectors will start acting earlier.

If the fact is proved that people work at an enterprise or at an individual entrepreneur without employment contracts, a rather significant fine awaits him. Therefore, it should be noted that the threat to contact the inspection can be used in negotiations with the employer.

How effective are the methods

And now a little about the sad: unfortunately, proving the size of a gray or black salary in court is an extremely difficult and dreary process.

The fact is that it is still relatively easy to prove the fact of non-payment - problems begin with specific amounts. The burden of proof here lies with the employee, and if the gray part of the salary is not paid, it may turn out that it will not be possible to convince the judge. In this case, you will have to be satisfied with receiving only what is due under the employment contract.

Lawyers recommend: if you're having problems with unpaid wages, find a lawyer who specializes specifically in labor relations. In this case, the chances of getting justice are much higher than if you act on your own.

For most people, being fired from a job is a rather unpleasant and exciting situation. The need to explain the situation to the employer, write a statement, uncertainty, lack of a stable income - all this greatly affects the mental well-being of a person.

The situation when the employer violates legal rights employee and does not give a calculation, makes the dismissal procedure even more unpleasant. In addition, such a violation of the law can significantly affect the financial situation of a person - leaving work, people, as a rule, count on a certain amount of payments from their former employer. Consider what opportunities an employee has to receive a calculation.

Calculation payment procedure

According to the Labor Code, upon dismissal of an employee, the employer must pay him:

• Compensation for unused vacations. This includes all vacations while working at the enterprise.
• Salary for the days that a person managed to work out.
• In some cases, the law provides for the payment of additional benefits to employees upon dismissal. Such a payment is due in case of dismissal due to reduction, in connection with the liquidation of the enterprise.

Regardless of the reasons for dismissal, the organization must calculate the person on the last day of his work. Money can be handed out along with a work book or transferred to his bank account. If at this time he was absent from the workplace, the management of the organization must make payments after the employee submits a demand for payment.

What do you need to do to get your money?

The employer does not pay the amounts due upon dismissal? This is a fairly common situation. There can be many reasons. The most common situation is when the management of the organization and the former employee did not agree on the amount of the calculation.

The first step an employee must take is to contact the labor inspectorate. This body will help the parties to agree labor relations. And also oblige the employer to pay the amount of the calculation.

Did the appeal to the labor inspectorate affect the employer? The second step that will help you get your money back is going to court.

The procedure for applying to the court to receive a calculation from the employer

When approaching the judiciary, it is important to take care of reliable evidence. Along with the claim, you must provide:

• a copy of the employment order;
• dismissal order;
• a copy of the entry in the employment record about the dismissal.

You can also provide other evidence: testimonies, pay slips and other relevant to the case. The main thing: they must confirm the fact of work, the size of the average monthly salary and the conscientious performance by the employee of his work functions.

If the plaintiff succeeds in proving his position, the former employer will have to pay him not only his salary, but also additional interest for late pay.

Consequences of refusal to pay an employee

Refuse to pay with former employee dangerous enough for the organization. Such actions entail various negative consequences:

• material costs for litigation;
• the need to pay compensation to the employee for the delay in settlement;
• administrative responsibility.

For unscrupulous employers, the law provides for a fine. At the same time, the money is paid not only by the organization, but also by officials who are obliged to make settlements with the employee on time. For officials, the fine ranges from 5 to 50 minimum wages, and for organizations - from 300 minimum wages.

The rules described above protect the rights of workers from unscrupulous employers. Financial and administrative responsibility serves as a good deterrent. The main thing is to apply to the court on time! Maximum term for treatment - one month. This state body will help protect the rights of the worker and punish the unfair employer.

Khromykh Larisa Georgievna(03/05/2014 at 15:06:12)

Hello!

Your employer may have big problems. First, you were required to conclude an employment contract.

“An employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. When the 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 the employee was actually admitted to work.(Article 67 of the Labor Code of the Russian Federation).

And secondly, both administrative and criminal liability has been established. In your case, already criminal:

Article 145.1. Non-payment of wages, pensions, scholarships, allowances and other payments

1. Partial non-payment of more than three months of wages, pensions, scholarships, allowances and other payments established by law, committed out of selfish or other personal interest by the head of an organization, employer - individual, the head of a branch, representative office or other separate structural unit organizations -

shall be punishable by a fine in the amount up to 120 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period up to one year, or by holding certain positions or engaging in certain activities for a term of up to one year, or by compulsory labor for a term of up to two years, or by deprivation of liberty. for up to one year.

2. Complete non-payment of more than two months of wages, pensions, scholarships, allowances and other payments established by law or payment of wages for more than two months in an amount below the minimum amount established by federal law, committed out of selfish or other personal interest by the head of the organization, by the employer - an individual , the head of a branch, representative office or other separate structural subdivision of an organization, -

shall be punishable by a fine in the amount of 100 thousand to 500 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to three years, or by compulsory labor for a term of up to three years, with the deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without it, or by deprivation of liberty for a term of up to three years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

(as amended by Federal Law No. 420-FZ of 07.12.2011)

3. The acts provided for by paragraphs 1 or 2 of this Article, if they caused grave consequences, -

shall be punishable by a fine in the amount of 200 thousand to 500 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to three years, or by deprivation of liberty for a term of two to five years, with deprivation of the right to hold certain positions or engage in certain activities for a term. up to five years or less.

Note. Partial non-payment of wages, pensions, stipends, allowances and other payments established by law in this article means making a payment in the amount of less than half of the amount due.

You can write a complaint to both the prosecutor's office and the labor inspectorate. But first make a dictaphone recording of peaceful negotiations with the employer, on which you fix both the period of non-payment and its size.

For example, this can be your peaceful reasoning with your manager that “I have already worked for 4 months, and the salary was paid only for ..... The salary in such and such an amount suits me quite well, but the debt is already in such and such an amount. I just would like to know when approximately the payment of salary debts, etc., etc. will be. "

Recorded, and then write a complaint.

We tell you how to get the required salary from an employer with whom an employment contract has not been concluded.

- I worked in the company unofficially. At first they paid stably, then they began to delay, so I decided to quit. We were asked to work for two weeks. Worked, but I still have not been paid. What to do?

Legislatively, the concept of "unofficial work" is not fixed, but in real life you can often meet those who work without registration. In this case, a person takes conscious risks, because the absence of an entry in the work book or an employment contract actually deprives employees of any rights and guarantees related to Labor Code RF. For example, an employer may not pay vacation pay, deprive employees of bonuses and compensations, and delay or not pay salaries.

During employment, the employer, following, must conclude an employment contract with the future employee, which specifies all working conditions, as well as perform all the actions provided for by labor legislation. The law also states that even an unwritten contract is considered concluded if the employee, with the knowledge of the employer, began to work at the enterprise.

Therefore, if you clearly fulfilled the tasks set, you had a certain schedule, a set lunch break and other attributes of the work schedule, but you were not paid for your work, then you can safely go to court. This, of course, provided that the employer does not want to go to the world and decide everything in a pre-trial order.

- In the labor inspectorate, only officially concluded labor relations with the employer are considered: an order for employment, an employment contract, an entry in the work book. If this is not the case, it is necessary to confirm the employment relationship in court and prove whether any agreement has been established with the employer. For example, about the terms of payment of salaries, how long the working day lasts, what time lunch is, and so on. If all these agreements were made and the employer paid you money for all this, then you can recognize these relations as labor relations and oblige the employer to make an entry in your work book and pay all insurance premiums,” says state labor inspector Roman Trapitsyn. - Also, the employer can draw up a civil law contract for the performance of a certain type of work, but this is no longer formally an employment relationship.

Before you go to court, take care of the evidence that you really worked. For example, find witnesses who will confirm your words - they can be clients of the organization or your colleagues. Also, any documents related to you and your employer will serve as evidence: copies of contracts, acts, invoices, printouts of phone calls officials organizations, copies of statements signed by management and others.

- The payment of salary arrears will be appointed by the judge if he decides your evidence is convincing and recognizes your relationship as labor or civil law. In general, it is better to always receive and store all the necessary documents related to work, and formalize relations, including labor relations, - says an employee of the Labor Inspectorate of the Kirov Region.

For non-compliance labor law the employer may expect a fine or suspension of activities for a while. In addition, an employer who does not fulfill the duties of a tax agent (in other words, evades taxes) may be held criminally liable under article. In this case, he will face a fine of 100 to 500 thousand rubles or imprisonment for up to six years.

About the main thing - briefly:

Be sure to conclude an employment or civil law contract with the employer.

If the employment relationship has not been formalized, and the employer does not pay wages, try to resolve the issue first out of court.

If the employer refuses to go to the settlement, go to court.

Collect all the evidence that will indicate that you really worked in this organization - these are any documents and witnesses.

Despite the fact that the Labor Code of the Russian Federation does not contain the term "informal employment", in practice this is quite common. From the point of view of protecting the rights of an employee, such a phenomenon is unacceptable; however, the situation is very beneficial for the employer: you can not pay taxes, do not deduct contributions for the employee. In the article, we consider the consequences of such employment for both sides of labor relations.

Informal employment - what is it?

Labor Code of the Russian Federation in Art. 69 clarifies that the employer, when hiring, is obliged to conclude an employment contract with the employee. The document includes conditions on the place of work, schedule, salary, rest time, etc.

The legislator even considers the option of signing an employment agreement after the actual admission to work. In this case, the procedure for concluding a contract is the same, only the order of starting work and processing all necessary documents changes.

There is a third option - the conclusion of a civil law contract for the provision of services with a citizen.

But if an employee has started work, and they still do not sign any documents with him, then there is informal employment. In other words, the employee is not officially on the staff of the company. An order for employment is not drawn up for him, an entry about this is not made in the work book, and contributions to the funds are not deducted.

What are the consequences of working without an employment contract?

Informal employment has a number of negative aspects and advantages, which we will discuss below.

1. The employee does not receive payment for sick leave, in case of going on maternity leave, etc. In the latter case, for example, he needs to contact the social security authorities to apply for benefits; however, they will be calculated according to the minimum wage.
2. The employer may well leave the employee without processing, overtime payments and other additional payments that are due to him by law.
3. Due to the fact that there are no contributions to the pension fund, the employee's pension is not formed. In addition, the length of service in informal work will not be taken into account when calculating it.
4. If the injury was received at the workplace, then the employee may not receive any compensation.

The pros are as follows:

1. Savings on paying taxes, due to which wages increase.
2. Alimony cannot be collected from the employee, since he does not have an official place of work.
3. In fact, the employee does not bear any responsibility for their actions in the workplace. We are talking, for example, about liability.

For each employee and employer, there are pros and cons of formal employment. Therefore, before insisting on signing an employment agreement or refusing to do so, we recommend weighing the pros and cons.

An alternative to drawing up an employment agreement may be the conclusion of a civil law contract with the head of the organization. It is, as a rule, either a work contract or a contract for the provision of services. In this case, the employee is also not in an employment relationship with the employer and, accordingly, is not entitled to rely on the guarantees and compensations provided for by the Labor Code of the Russian Federation, however, he receives remuneration for his work and has the right to apply for protection of violated rights, having evidence of civil legal relations between him and the organization.

In some cases, the employer offers another employment option - a citizen is officially accepted into the staff of the enterprise, an employment contract is signed with him, but the text of the document indicates a different salary, less than what he receives in his hands. On the one hand, the advantage is that the salary is higher, since taxes are not charged on part of the earnings. On the other hand, the amount of maternity, sick leave payments, etc. will also be lower, since it is calculated, the outcomes of the official part of the income.

What is the punishment for an employer who has not concluded an employment contract with an employee?

Let's start with the fact that liability can only arise if the authorized bodies learn about the offense. In other words, if an employee files a complaint, for example, with the prosecutor's office or the labor inspectorate; The Federal Tax Service learns that the costs of wages, from which no deductions were made to funds and to the budget, etc.

The second circumstance for the occurrence of liability is the presence of the fault of the employer. That is, it is he who should not conclude an employment contract. For some reason, the employee sometimes refuses to sign the document; in this case, the head of the organization will not be punished.

And the third point is the causal relationship between the actions of the employer and the consequences. In particular, we can talk about the fact that, as a result of informal employment, the employer does not make contributions to the relevant funds and the employee does not form a future pension.

Responsibility may be as follows:

1. Administrative - according to Art. 5.27 of the Code of Administrative Offenses. In this case, a fine is imposed on the employer, the amount of which depends on the organizational and legal form of the guilty person and the repetition of the violation. An alternative is to suspend activities for a period specified by law. As a rule, this type of punishment can be applied if it is a question of repeated violations or in relation to several citizens.
2. Civil law - in the event that the employee has filed an application with the court and asks to recover the amount of moral damage.
3. Criminal - if there is a fact of fraud when hiding from the state a large number of "unregistered" citizens. The second option is liability under Art. 199.1 of the Criminal Code of the Russian Federation - as a tax agent: imprisonment for up to 2 years or a large fine.

Are loans given to unofficially working citizens?

One of the conditions for obtaining a loan in many banks is the presence of work experience of 1 month or more. The larger the loan amount, the more work experience required. For banks, experience is a kind of safety cushion that a trustworthy employee who has been working in one place for a long time will have the opportunity to pay the debt.

However, some banks allow the possibility of obtaining a loan without confirmation of experience. As a rule, we are talking about small amounts. But in contrast to this, there must be proof of income. For example, if a citizen is not officially registered, then the employer has the right to draw up letter of guarantee that the applicant really works for him and indicate the period of work.

The second option for confirming income is accrual to a card that is issued to a citizen. The undoubted advantage in this case will be that it is issued by the bank in which the loan is requested.

But one must be prepared for the fact that citizens who do not have an official place of work may have an increased loan rate compared to those who are officially employed. In the difference between the rates, the bank lays down its costs in the event that the debtor cannot repay the loan.

However, you can agree with the bank to confirm the solvency of the presence of real estate, Vehicle etc. in other words, the bank will have something to recover losses from if payments on the loan are not made.

If you have not paid a salary to an unofficially working employee

In practice, there are situations when, for some reason, an employer does not pay a salary to an employee who is not officially employed. What to do in this case?

A citizen can protect his rights either by going to court, or to the prosecutor's office, or to the labor inspectorate.

However, it will be necessary to prove the fact that the actual employment relationship between the employer and the applicant took place.

Upon the fact of the appeal, the authorized bodies should conduct checks and find out all the circumstances of the case. If there are violations of the law, the employer will be held administratively liable.

Evidence of work in informal employment

As a rule, it is necessary to prove the fact that a citizen really worked at an enterprise, even if they did not conclude an employment contract with him or draw up other documents on admission, if it is a matter of applying to a court, labor inspectorate or prosecutor's office.

How can this fact be proven?

1. Witness's testimonies. You can involve other workers who can confirm that the citizen really worked at the enterprise.
2. Video recordings from surveillance cameras, if they are installed, for example, at the entrance, in the workshop where the applicant works, etc.
3. Documents on which there is a signature of a citizen. For example, invoices, acts, contracts, etc.
4. Transactions in the form of a salary to a citizen's card.

At the same time, the evidence base must clearly indicate that these documents link 2 facts: that they come from the name of a particular organization; the fact that a specific person worked in this organization.

The burden of proof in this case rests solely with the employee. The employer is not required to provide any evidence, even if he is the defendant in the case.

Thus, official employment is a requirement of the legislator. If the parties decide not to enter into an employment contract, they must be mindful of the consequences of such a decision.