When an employee and an employer enter into an employment relationship, the conclusion of an employment contract between them is mandatory. At the same time, labor legislation prohibits the conclusion of civil law contracts instead of employment contracts, which actually regulate labor relations. And what threatens the employer for an unregistered employee, we will tell in our material.
What are the terms of the employment contract?
An employment contract must be concluded in writing in two copies (for the employer and the employee) and signed by each of the parties 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).
On the basis of the concluded employment contract, the employer issues an order (instruction) and presents it to the employee against signature within three days from the date of the actual start of work (Article 68 of the Labor Code of the Russian Federation).
Actual admission to work without a contract
If a situation arises when the employee actually started work with the knowledge or on behalf of the employer or his authorized representative, then even an employment contract not executed in writing is considered concluded (part 2 of article 67 of the Labor Code of the Russian Federation).
At the same time, liability is provided for evading the conclusion of an employment contract in this case. Penalties for an unregistered employee will be (part 4 of article 5.27 of the Code of Administrative Offenses of the Russian Federation):
- for officials in the amount of 10,000 to 20,000 rubles;
- for organizations - from 50,000 to 100,000 rubles.
The IP penalty for an unregistered employee in 2017 is from 5,000 to 10,000 rubles.
Permission to work by an unauthorized person
A situation is possible when an employment contract is not concluded with an employee, since the actual admission to work was made by a person not authorized by the employer, and the employer himself refuses to recognize the relationship with the employee as labor.
In such cases, liability is provided in the form of a fine (part 3 of article 5.27 of the Code of Administrative Offenses of the Russian Federation):
- for citizens in the amount of 3,000 to 5,000 rubles;
- for officials - from 10,000 to 20,000 rubles.
In addition, the employer, in whose interests the work was performed, is obliged to pay such an individual for the time actually worked by him (work performed) (Article 67.1 of the Labor Code of the Russian Federation). And it does not matter in this case that the employee is allowed to work without the knowledge of the employer.
Each individual entrepreneur using the labor of hired workers has the obligation to properly register such employees in full compliance with the Labor Code of the Russian Federation.
Failure to fulfill this obligation is recognized as a gross violation of the current legislation, as it can harm not only the rights of the employee himself, but also the state.
What is an unofficial device?
It does not appear directly in the legislation of the Russian Federation, however, based on the meaning of the law and established practice, informal employment is recognized as the actual admission of a person to perform labor functions, without drawing up documents that meet the requirements of the Labor Code of the Russian Federation.
The reasons for refusing to officially register an employee are different. Some categories of workers, such as, for example, foreigners or pensioners, actively use the opportunities of "shadow" work.
Foreign citizens prefer to do without registration of labor documents, since it is necessary to have a work permit, which is a very long and complicated procedure.
Disabled people prefer to work “outside” the accounting department in order to maintain the social benefits they are entitled to by law, which are abolished in the case of work on an officially concluded basis.
Benefits for employee and employer
The employer benefits from unregistered workers.
The employer prefers not to formalize employees for the following reasons:
- Opportunity to avoid taxation. The employer, as a tax agent, is obliged to withhold a tax of 13% from an employee, so many employers, not wanting to pay this tax, do not formalize relations with an employee;
- Non-payment of deductions from the wages of employees due to unfavorable rates;
- The possibility for the employer to regulate the level of wages at its own discretion;
- Many employers believe that due to the lack of documentary evidence of availability, compliance with the requirements of labor protection legislation is not mandatory.
Many of the above reasons are very unfavorable for workers, so the question arises why job seekers voluntarily agree to work informally? There are several reasons for this:
- it is not required to provide a package of documents provided for by the Labor Code of the Russian Federation when hiring a person;
- it is possible not to make many payments that are withheld from official wages (alimony, taxes, etc.);
- sometimes the applicant agrees to work unofficially due to the impossibility of finding a similar job with registration in accordance with the law.
The common reason for refusal from the employee and the employer is the avoidance of taxation and other payments, otherwise, as practice shows, the interests of these persons differ.
Responsibility of individual entrepreneurs for unregistered employees
The employer faces administrative liability.
An individual entrepreneur carrying out his activities with the involvement of employees is obliged to officially formalize labor relations with each of them within three days from the date of the person's actual admission to the performance of his labor functions.
In case of non-registration of the employee, the individual entrepreneur will be subject to administrative and criminal liability.
Administrative responsibility is applied to individual entrepreneurs on the basis of Article 5.27 of the Code of Administrative Offenses of the Russian Federation and entails a warning or a fine in the amount of 5 to 10 thousand rubles.
In the event of a repeated commission of a similar violation, the IP will be required to pay a fine in the amount of 30 to 40 thousand rubles. Moreover, the activity of an individual entrepreneur can be forcibly suspended for up to 90 days.
Criminal liability on the basis of article 199.1 of the Criminal Code of the Russian Federation provides for the punishment of an individual entrepreneur who has not fulfilled the duties of a tax agent in the form of a fine in the amount of one hundred to three hundred thousand rubles. In some cases, prison sentences of up to two years may apply.
It is important to remember that regardless of the type of liability, the individual entrepreneur is obliged to initially reimburse the state for all the lost funds.
In the case of hiring a foreign worker without proper registration, the individual entrepreneur (on the basis of Chapter 18 of the Code of Administrative Offenses of the Russian Federation) pays a fine of up to 50 thousand rubles. Which in some cases can reach up to 800 thousand rubles or develop into another sanction in the form of a suspension of activities for a period of 14 to 90 days, when, for example, a foreigner worked at commercial facilities.
In order to avoid such liability, an individual entrepreneur must register an employee and pay all taxes and fees due to the state for the entire period of the employee’s work.
It is impossible to avoid fines without bringing the activity in accordance with the law.
State Labor Inspectorate (SLI) and courts for the protection of workers' rights
In the event that an unregistered employee applies to the GIT or to the court in order to protect his rights, the individual entrepreneur will not be able to avoid liability for actually committed offenses. The law gives the parties to the dispute 30 days to resolve the situation and conclude a settlement agreement.
The individual entrepreneur may also offer the employee to withdraw the application subject to its subsequent official registration. Otherwise, the IP will face the liability described above.
Thus, despite the benefit received by the employer when employees are not registered, the liability for violation of labor laws exceeds all possible advantages of refusing an employment contract.
From this video you will learn about the fines for an unregistered foreign worker.
Question form, write your
Registration of an employee in accordance with the Labor Code of the Russian Federation is the responsibility of the employer, including the employer-individual entrepreneur. An individual entrepreneur is an individual who is registered in accordance with the procedure established by the Federal Law of 08.08.2001 No. 129 and is engaged in entrepreneurship without forming a legal entity. An individual entrepreneur can be with or without employees. An entrepreneur may have the following questions: how to register an employee, what will happen if this is not done? We will answer these questions in our article.
How to register an employee as an individual entrepreneur
The step-by-step procedure for applying for a job at an IP is as follows:
- The applicant writes an application for employment according to the staffing table.
- The individual entrepreneur acquaints the candidate (under signature) with the internal labor regulations, other local regulations that relate to his work, the collective agreement.
- An employment contract is being drawn up. When concluding it, the employee must present certain documents listed in Art. 65 TK. When it comes to a foreign citizen or stateless person, they additionally provide the documents listed in Art. 327.3 TK An agreement is drawn up in writing in two copies - one for the employee and the employer, each must be signed by the indicated persons. About what should be indicated in the text of the contract, says Art. 57 TC. For foreigners and stateless persons, information from Art. 327.2 TK. This document comes into force from the moment of signing by the parties (otherwise may be established by the Labor Code, other Federal Laws, other regulatory legal acts of the Russian Federation or an employment contract) or from the day when the employee is actually admitted to work with the knowledge or on behalf of the employer or his authorized representative. In fact, they can be allowed to work without an employment contract for three working days. In general, this document already testifies to the formality of labor relations.
- An order for employment is being prepared (form No. T-1).
- A personal card is created for the employee.
- An appropriate entry is made in the work book.
What happens if the individual entrepreneur does not register his employee
If an individual entrepreneur ignores the above procedure, he will not transfer personal income tax for an unregistered employee to the state budget, which will cause damage to the state. For the employee, this will mean the absence of:
- contributions to the Pension Fund, which will harm future pensions;
- receipts to the Social Insurance Fund - will harm sick pay, unemployment benefits;
- deductions for health insurance - you can lose free medical care.
Under these circumstances, the IP violator will face administrative or criminal liability. Its type depends on the period during which the worker was not registered, and, accordingly, no mandatory payments were received for him. This will allow you to calculate the amount of damage caused. If this period is, say, several months, it is worth waiting for administrative consequences. And if it is several years, they will be punished already criminally.
Administrative responsibility (Article 5.27 of the Code of Administrative Offenses of the Russian Federation)
Administrative fine for an individual entrepreneur for an unregistered employee in 2019 under part 1 Article 5.27 of the Code of Administrative Offenses varies between 1000-5000 rubles (instead of a fine, a warning is possible). In case of relapse, the fine will increase to 10,000-20,000.
If an individual entrepreneur evades registration or has improperly executed an employment contract or has entered into a civil law contract that actually regulates labor relations between an employee and an employer, he may face a fine under part 4 of this article in the amount of 5,000-10,000 rubles, in case of repeated violation the fine will increase to 30,000-40,000 rubles.
Criminal liability (Article 198 of the Criminal Code of the Russian Federation)
Criminal fine for an unregistered employee for individual entrepreneurs under part 1 Art. 198 of the Criminal Code of the Russian Federation is 100,000-300,000 rubles. or income for one or two years.
The punishment may be different:
- forced labor for up to a year;
- arrest up to six months;
- imprisonment up to a year.
If a crime under this article is committed on an especially large scale, it will be punished with a fine of 200,000-500,000 rubles. or income for one and a half to three years. Other punishments:
- forced labor up to three years;
- imprisonment for the same period.
The large amount of damage in this case is the amount of mandatory payments, amounting to more than 900,000 rubles within three consecutive financial years, if the share of unpaid mandatory payments is more than 10% of the amounts payable in aggregate or exceeds 2,700,000 rubles. An especially large amount is an amount similar to the above, with a value of more than 4,500,000 rubles, provided that the share of unpaid mandatory payments exceeds 20% of the amounts payable in aggregate or exceeds 13,500,000 rubles.
A person who breaks the law under this article will be released from criminal liability for the first time if he fully repays the amount of arrears, relevant penalties and a fine in the amount determined by Tax Code of the Russian Federation.
A fine for an unregistered IP employee in 2019 can hit your pocket hard. Although this does not stop some entrepreneurs. They prefer to recruit employees and not formalize an employment relationship with them. Such actions are motivated by high costs of paying contributions to the budget for each employee. But is it worth the risk? What threatens the lack of registration?
Responsibility for an unregistered employee
It is difficult to hide the presence of employees from the tax office, even if they do not work in plain sight.
Each entrepreneur submits reports to the regulatory authorities, and very often the turnover indicates that the activity was carried out not only on their own.
Employer's responsibility:
- Administrative. It is applied if the violation is minor, for example, a new employee performed his duties without registration for 1-2 weeks. In this case, a fine of up to 5,000 rubles is imposed. If the violation is more severe, individual entrepreneurs may be banned from operating for up to 90 days. And this threatens with serious losses and even loss of business.
- Criminal. This type of liability applies if it is found that for several years the individual entrepreneur has used hired labor and has not paid taxes to the budget. The fine increases to 300 thousand rubles. Also, by a court decision, an entrepreneur may face a prison sentence of up to 2 years.
In addition, payroll taxes will be charged for the entire period of employment without registration, which must also be transferred. It is worth noting that without concluding an employment contract, a new employee can work no more than 3 days. Exceeding this period is punishable.
Registration of employees
The norms of the law when hiring employees must be observed by the entrepreneur without fail.
A businessman, when applying for an official employment of an employee, must require the following documents:
- passport of a citizen of the Russian Federation;
- work book;
- military ID;
- specialist diploma.
Based on these documents, an employment contract is filled in two copies. The form is standard, but the employer has the right to make changes and additions.
The document states:
- passport data;
- entrepreneur and employee code;
- date and place of compilation.
In addition, the contract specifies the position of the employee, work schedule, conditions for granting leave and the availability of benefits.
It is from the moment of signing the contract that the employee is considered officially accepted. The employer is given only three days for registration, exceeding this period is punishable.
After the conclusion of the contract, an order for employment is issued and an entry is made in the work book.
The employee must perform his duties in accordance with the job description. The employer, in turn, provides all the conditions for the implementation of labor activity. In addition, he is obliged to calculate wages and transfer taxes and contributions to regulatory authorities. Also, the individual entrepreneur must provide vacation according to the schedule and pay sick leave.
The labor code governs all stages of the relationship between the employer and the employee.
Working for an individual entrepreneur without registration leads to the fact that the employee does not have social guarantees established by law. He does not receive sick leave payments, vacation pay and other income provided for at the conclusion of an employment contract.
The situation is especially acute upon dismissal, as unscrupulous employers refuse to make the final payment, do not pay compensation for unused vacation. It is almost impossible to recover these amounts in court, as there is no evidence of an employment relationship.
An IP fine for an unregistered employee threatens for the following reasons: 
- The absence of an employment contract leads to non-payment of personal income tax (personal income tax) to the budget.
- There are no transfers to the Pension Fund, which affects the amount of a person's future pension.
- The lack of payments to the social insurance fund leads to the loss of state guarantees in the form of sick leave, maternity and unemployment benefits.
- Contributions to health insurance are not made from the wages of an unregistered employee; a person may lose the opportunity for free care in a hospital or clinic.
These reasons lead to a tougher punishment in 2019 for the illegal use of labor.
So, if an employee is not registered, what penalty does the entrepreneur face? Administrative penalty - in the amount of 1000 rubles. up to 5000 rub. In addition, in case of non-registration, the punishment may be in the form of a ban on entrepreneurship for up to 3 months.
If the violation qualifies as criminal, then the punishment will be more serious. A fine can be imposed up to 300 thousand rubles. An individual entrepreneur can face a prison sentence of up to 2 years in case of long-term use of labor without proper registration. But all this does not exempt from compensation for the damage caused to the budget.
To avoid criminal or administrative liability, you must comply with the labor legislation of the Russian Federation.
Penalties for violation of immigration law
In case of detection of illegal immigrants working illegally, the individual entrepreneurs are waiting for serious penalties. To avoid them, you need to familiarize yourself with the rules for hiring foreign citizens.
Documents required for hiring foreign labor force:
- identification;
- initial registration;
- patent or work permit;
- PF certificate;
- qualification documents.
A fine for an individual entrepreneur for a foreign worker threatens in such cases:
- The employee does not have a permit for this activity.
- The individual entrepreneur does not have permission to involve foreign citizens in the labor activity.
- The foreigner works in a profession not specified in the permit.
- The individual entrepreneur did not submit information to the MFS on the employment of a foreign citizen.
For such violations, individual entrepreneurs face liability not only in the form of fines, but also in the form of suspension of activities for up to 90 calendar days. And this is a significant blow for any business.
All organizations, individual entrepreneurs must follow the rules of the law. They set the rules for hiring. Employment is accompanied by the execution of a contract: it is drawn up in 2 copies - one for the employer, and the other for the employee. The law provides for a fine for an unregistered employee.
Reasons for the fine
If the employer hires employees unofficially, then administrative or criminal liability is provided. It all depends on the damage done to the state. Informal registration is punished due to several reasons:
- The absence of an employment contract does not oblige you to pay personal income tax - 13%. Deductions are made only from official employment. This is done by the employer.
- The employee does not count the length of service, and the employer does not transfer money to the Pension Fund. As a result, the state does not receive funds for the maintenance of pensioners, and the employee loses his pension in the future.
- There will be no deductions to the insurance fund, which allows you to use free medical care.
- An employee without registration has no rights to many things. It will be difficult for him to receive payments in the calculation, salary, compensation for vacation.
- When disputes arise in court, it will not be possible to prove one's case.
Thus, informal employment harms the state and the employee himself. The task of controlling institutions is to identify violations and respect the rights of employees. What fines for an unregistered employee are supposed to be paid by employers will be discussed further.
When can you not register an employee?
There is only one case when it is possible to do without official registration. This applies to work that is performed by an employee for a short period, but it should not be more than 3 days. Then it is not necessary to register an employee, and this will not be a violation of the law. If the work continues for a longer time, then it is necessary to conclude an agreement.
IP responsibility
Entrepreneurs are subject to administrative liability. How much is the fine for an unregistered worker? If a violation is detected, the amount will be 1-5 thousand rubles. In this case, the work of the entrepreneur may be suspended for 90 days, which leads to losses and the closure of the organization.
Registration costs will be less than fines. But if the employee continues to work like this for more than 1 year, and taxes were not paid during this period, then the possible opening of a criminal case for major damage, the fine for an individual entrepreneur for an unregistered employee will be up to 300 thousand rubles or imprisonment for 2 years.
With criminal liability, deprivation of employment for a long period is possible. Usually, when unofficial employment is discovered, state bodies do not close the organization, but seek payment of taxes and compensation. An entrepreneur can suffer serious damage, so you should not take risks. It is best to fill out the necessary documentation right away.
LLC liability
The LLC also pays a fine for an unregistered employee. According to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation a large amount is assigned. It is issued to the head or responsible person who is engaged in the personnel sphere. In case of repeated violations that caused great damage to the state, large fines are called. Sometimes it provides for the release of responsible persons from work.
There is a possibility of criminal liability. Then the punishment will be correctional labor or imprisonment up to 2 years. Upon detection of the first violation, a legal entity must pay a fine for an unregistered employee in the amount of 100 thousand rubles.
Work is suspended for 90 days. The manager must also pay a fine for an unregistered employee. In 2017, its size is 5 thousand rubles. Responsibility is also provided for the incorrect execution of contracts, work books. Documentation must be drawn up according to standards, and any shortcomings lead to problems for both the employer and the employee.
Employment of migrants
A fine for an unregistered worker is also provided for in the case of illegal registration of refugees. The heads of the institution should be attentive to the employment of foreign citizens. Then it will be controlled by the state authorities.
Popular violations include:
- The employee works illegally, that is, he does not have a patent and other permits. Then he is deported from the country, and the employer must pay a large fine.
- The employer did not notify the migration service about the admission of a foreigner or did it, but out of time. It is also necessary to send information to the FMS after the termination of the contract with a foreign employee.
- The foreigner was admitted not in the specialty that is indicated in his patent. Then he is fired, and the employer must pay a fine.
- The organization employs foreigners without obtaining a permit.
What are the penalties for an unregistered employee in 2017? For officials, the amount is 35-70 thousand rubles, and for legal entities - up to 1 million rubles. With the illegal hiring of foreigners, the work of the institution stops for 14-90 days, which causes losses. Due to the strict control of the state, many organizations refuse to hire foreigners.
Frequent violations
There are also penalties for non-compliance. Violations may relate to infringement of rights and compliance with norms. The manager needs to ensure labor protection:
- Provide personal protective equipment, which is recorded in a special journal.
- PPE is issued based on the results of certification. If the procedure was not completed within the required timeframe, the company will be required to pay large amounts.
- Before being allowed to work, employees get acquainted with safety, sign for familiarization with the information.
This is only part of the violations for which there is responsibility. To avoid penalties, you need to comply with all the rules for maintaining documents and hiring people. Then there will be no extra costs.
How are “illegal” employees identified?
Supervisory organizations are working to identify violations. There are many of them, most often inspections are arranged by the tax and labor inspectorates. At the same time, Federal Law No. 294 is taken into account, and the tax office carries out work according to Ch. 14 of the Tax Code of the Russian Federation.
Violations are determined by a desk or field audit. Tax officials have the right to familiarize themselves with the documentation for the current year and 3 previous ones. Interrogation of witnesses, inspection of premises, seizure of documents is allowed. The tax authorities must have permission to check. As a result of the event, a certificate is created, on the basis of which an act is drawn up with violations and recommendations for their elimination, for which 2 weeks are allocated.
Occupational Safety and Health
The labor inspectorate can come to any institution for inspection. An unscheduled event occurs due to complaints from offended employees or competitors. Sometimes a raid is carried out with other regulatory authorities.
A protocol is drawn up that contains the following information:
- Full name of the inspector.
- Violations.
- elimination rules.
The protocol is considered the basis for imposing a fine or going to court to bring to criminal responsibility. Regulatory agencies have many methods to enforce compliance with the law.
What is required for employment?
The full list of documents required for is specified in Nothing else the employer should require. From the documents for work it is required:
- The passport.
- Employment history. According to article 66 of the Labor Code of the Russian Federation, every employee who works more than 5 days must have this document. With the first admission, it is drawn up by the employer.
- TIN, pension certificate. A person who is not an individual entrepreneur may not have a TIN. But you can get it from the tax office.
- Military document. It must be worn by men aged 18-27 who may be called up for military service.
- Certificates and diplomas confirming education.
- Medical book. Required for employees in the field of trade, education, medicine, catering.
- Certificate from the Ministry of Internal Affairs on non-conviction.
According to Article 64 of the Labor Code of the Russian Federation, an employer should not unreasonably refuse a citizen employment, even if he does not have local registration. But in practice, organizations rarely hire workers without a local residence permit. In case of any violation of rights, employees have the right to protect their interests in court.
Official registration allows you to get a legitimate job, for which you do not have to pay a fine to the employer. After all, inspections are carried out by regulatory authorities on a regular basis. It is better to register everything at once so that any checks pass without problems.
