Can an individual entrepreneur hire workers and how to do it correctly under a contract. Can an individual entrepreneur be an employee and an employer in one person, that is, calculate his own wages, make entries in his work book about accepting himself from

Personnel is one of the main resources of any business. Often, individual entrepreneurs start activities on their own, without involving employees. But if we talk about real entrepreneurial success, it is very difficult to achieve it alone. Can a Sole Proprietor Hire Employees? Are there any restrictions here?

Who can be an employer

Employers in labor relations can be both legal entities and individuals. Moreover, the Labor Code distinguishes between an ordinary individual and, giving them different rights and obligations.

So, an ordinary individual can conclude an employment contract with domestic staff or with another contractor for the purpose of personal service. However, such an employer does not have the right to enter an employment record in the work book. Until 2006, entrepreneurs did not have this right either, which is why the question arose: “Can an individual entrepreneur hire workers”?

In 2018, the answer to this question is, of course, yes. When hiring an employee in an individual entrepreneur, the entrepreneur bears the same obligations of the employer as the organization, with a few exceptions. For example, only corporate employers are required to pay redundancy compensation.

Employer's obligations

It is advisable to know about the obligations of the employer even before the individual entrepreneur hires an employee. The labor legislation of the Russian Federation is quite rigid and is more aimed at protecting employees than at the interests of business.

An individual entrepreneur with employees must:

• conclude a written
• to bring to the employee information about his job responsibilities and to acquaint him with local labor acts;
• create a safe workplace and provide the employee with everything necessary to perform the labor function;
• pay wages at least twice a month;
• transfer and provide annual paid leave at their own expense;
• timely withhold personal income tax from salaries and other payments to staff and transfer tax to the budget;
• submit reports on employees to the IFTS and funds;
• maintain personnel records.

In order to reduce the administrative and financial burden, some individual entrepreneurs with employees tend to conclude instead of an employment contract. Under such an agreement, the relations of the parties are transferred from the labor to the civil law plane.

In this case, the customer pays less insurance premiums for the contractor, does not make payments for temporary disability and maternity, does not pay for vacation, is not obliged to create working conditions, etc. Sometimes it's really justified. For example, in your business you need some kind of one-time service or a certain amount of work. Hiring an employee in the state in this case is optional.

But keep in mind that government agencies (IFTS, funds, labor inspectorate) will carefully check whether you had reason to conclude a GPC agreement. Article 5.27 of the Code of Administrative Offenses of the Russian Federation even has a special sanction for concluding a civil law contract in the presence of actual labor relations. For individual entrepreneurs, this is a fine in the amount of 5 to 10 thousand rubles.

How many employees can an entrepreneur have

How many people are allowed to hire individual entrepreneurs with employees in 2018? You can get very different answers to this question, most often 100 people are called. In fact, restrictions on the number of employees are not associated with the legal form of the employer (IP or LLC), but with the chosen one.

If an entrepreneur works for or, then he can hire no more than 100 people. The restrictions are even tougher - no more than 15 employees on the average headcount. Fishing production facilities can accommodate up to 300 people. And for those who have chosen the general taxation system, there are no restrictions on personnel, therefore, theoretically, the average number of individual entrepreneurs with employees can be any.

In addition, if an entrepreneur claims state support for small and medium-sized businesses, then the number of employees also matters. A micro-enterprise may have no more than 15 employees, a small enterprise may have no more than 100 employees, and a medium-sized enterprise may not have more than 250 employees.

Are you looking to hire employees? Don't forget about payroll. Many banks now provide favorable conditions for opening a current account and maintaining a salary project. So the bank offers its customers:

• free payroll project
• crediting the salary to the card on the day of sending,
• free checking account,
• service 24/7.

Is it necessary to apply for a job relatives of IP

Should an entrepreneur draw up a contract if relatives work for him? It all depends on the nature of the relationship. There is no concept of a family business for individual entrepreneurs, even if we are talking about spouses with a common budget.

If this is really irregular assistance, for which the entrepreneur does not pay, then Article 37 of the Constitution of the Russian Federation can be applied here. According to this norm, everyone has the right to freely dispose of their abilities to work, including providing services to someone or performing work free of charge.

But most often, under the supposedly gratuitous help of relatives, labor relations are still hidden, which are of a regular nature, involving the performance of specific duties and the receipt of a certain remuneration.

Even if you conclude a written contract for the provision of services free of charge, it will be up to the court to decide whether there are signs of an employment relationship. The Federal Tax Service and Rostrud, upon discovering an unregistered employee, of course, insist that this is a violation of labor legislation and the rights of the employee himself. There is positive judicial practice on the issue of holding the employer-individual entrepreneur liable, but the proceedings in court will be very thorough.

As an example, we can cite the decision of the Nizhny Novgorod Regional Court dated March 5, 2013 in case No. 7-133/2013. They tried to fine the entrepreneur for employing a relative-foreign citizen only on the fact of his being in the premises rented by the individual entrepreneur. Moreover, it was possible to achieve the abolition of the fine only in the second judicial instance.

Thus, the activities of an individual entrepreneur with employees who are his relatives also fall under the norms of labor legislation. In addition, do not forget that a relative who is not registered by you will not have seniority and pension savings. Will you support him at your own expense in old age? Wouldn't it be better to conclude an employment contract and ensure that he receives a pension?

How to register an IP employee

And now a brief instruction on how to hire an employee as an individual entrepreneur. Registration of an employee in 2018 takes place according to the norms of the Labor Code.

1. Within three working days from the start of work, prepare and sign an employment contract with the employee. Under the signature, familiarize the employee with the local labor acts in force at your enterprise. These can be internal labor regulations, job descriptions, regulations on the processing of personal data, regulations on remuneration, etc. If you have less than 15 employees, then you are a micro-enterprise, therefore you have the right to conclude approved by the Government of the Russian Federation. This agreement is drawn up taking into account all the requirements of the Labor Code of the Russian Federation and replaces many local acts.
2. Issue an order to accept an employee in the form No. T-1 and issue a personal card in the form No. T-2. All standard personnel forms can be downloaded at.
3. Make the appropriate entry in the work book. Registration of an employee in 2018 no longer requires the mandatory seal of an individual entrepreneur, but if you use it, then you can put a stamp in the work book.
4. If this is your first contract with an employee, then within 30 days of signing it as an employer. Since 2017, it is no longer required to register with the FIU on your own. Information about policyholders is transmitted to the Pension Fund by the tax office where you are registered.
5. Familiarize the employee with his duties and create the conditions necessary for their implementation.

Labor relations arise between an employee and an employer on the basis of an employment contract (Article 16 of the Labor Code of the Russian Federation). According to Art. 20 of the Labor Code of the Russian Federation, an employee is an individual who has entered into an employment relationship with an employer. In turn, the employer is an individual or a legal entity (organization) that has entered into labor relations with the employee. At the same time, for the purposes of the Labor Code of the Russian Federation, employers - individuals are recognized, in particular, individuals registered in the prescribed manner as individual entrepreneurs and carrying out entrepreneurial activities without forming a legal entity.
All employers (individuals and legal entities, regardless of their organizational and legal forms and forms of ownership) in labor relations and other relations directly related to them with employees are obliged to be guided by the provisions of labor legislation and other acts containing labor law norms (part three of article 11 TC RF).
Since, in accordance with Art. 56 of the Labor Code of the Russian Federation, an employment contract is an agreement between two parties to an employment relationship (employer and employee), being an employer, an individual entrepreneur cannot simultaneously be the other party to the employment contract (employee). The conclusion of a bilateral agreement with oneself is contrary not only to the Labor Code of the Russian Federation, but also to common sense.
Wages are remuneration paid exclusively within the framework of labor relations (Article 56, Article 129 of the Labor Code of the Russian Federation). Due to the fact that an entrepreneur cannot have labor relations with himself, there can be no talk of paying himself a salary.
By virtue of the third part of Art. 66 of the Labor Code of the Russian Federation, an employer (with the exception of employers - individuals who are not individual entrepreneurs) is obliged to keep work books for each employee who has worked for him for more than five days, in the event that the work for this employer is the main one for the employee. The work book of the established form is the main document on the work activity and work experience of the employee.
Considering that work books are kept for employees with whom the employer has concluded labor contracts, and an individual entrepreneur cannot conclude an employment contract with himself, he is not entitled, therefore, to keep a work book in relation to himself, which, in turn, implies the impossibility of making appropriate entries in the work book.
At the same time, an individual entrepreneur engaged in entrepreneurial activities can become an employee if he concludes an employment contract with an employer, which can be either an organization or another individual entrepreneur.

Prepared answer:
Legal Consulting Service Expert GARANT
Kotylo Igor

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Kikinskaya Anna

The material was prepared on the basis of an individual written consultation provided as part of the service. For more information about the service, contact your manager.

10But I

Hello! In this article, we will discuss the situation when an individual entrepreneur can no longer cope on his own, and he needs hired employees.

Today you will learn:

1. Can an individual entrepreneur hire employees.
2. What are the limits on the number of employees of IP established by law.

Can an individual entrepreneur hire employees

Alternative Ways to Hire

An individual entrepreneur can hire employees, but this will require a lot of money, time and other resources from him. Can this be avoided? Yes, but only partially and in certain situations that allow the application of a civil law contract.

An employee may carry out his work on or provide services for some time, but not on a permanent basis. An employment contract is concluded for the period of performance of certain works that have a final result. For example, repair, create an author's work.

Payment in this case is made according to the results of work. Insurance payments, vacation pay and sick leave are paid by the customer on a voluntary basis.

The boundary between an employment and a civil law contract is very thin, and if the regulatory authorities consider that the form of the contract was chosen incorrectly, the employer will be ordered to register the employee in accordance with all standards and compensate him for all payments.

Some people, having become entrepreneurs, sometimes wonder if an individual entrepreneur can work in another organization with a work book. It turns out that one's own business can be freely combined with official employment, with the exception of certain cases. You can do business if you have free time from your main place of work. However, it should be taken into account that not all areas allow the possibility of combining employment with doing business.

IP opening law

Becoming an individual entrepreneur is not a problem for anyone today. Thus, for particularly active citizens, full of ideas and energy, limitless opportunities open up. At the same time, such activities do not guarantee success. Therefore, people want to make sure not to lose everything. This becomes possible thanks to official employment as an employee.

Even experienced businessmen recommend start-ups not to leave their usual place of work at first and combine it with their new business. Then, in case of failure, it will be possible to return to the previous way of life without loss. Future entrepreneurs may wonder if it is possible to become an individual entrepreneur while continuing to work at their job and not quit. The legislation on this has the following provisions.

1. In Art. 18 of the Civil Code of the Russian Federation says that any citizen has the right to engage in entrepreneurship, if this area is not prohibited by law. He must be an adult and have civil rights.
2. Article 23 of the Civil Code of the Russian Federation states that he has the right to engage in entrepreneurial activities from the moment he registers as an individual entrepreneur.
3. In the law "On registration of physical. and legal persons” there are no prohibitions on the commission of such actions.

All these legal acts show that an individual entrepreneur may well work simultaneously under an employment contract. But, nevertheless, the rule has both exceptions and limitations.

Registration of IP

An individual entrepreneur, most often, is denied registration due to an incorrect application or the provision of an incomplete package of necessary documents. In addition, there are other reasons that cannot be ignored. So, the following persons are not entitled to register as an individual entrepreneur and engage in entrepreneurial activities:

• deputies of the State Duma;
• Fed. Meetings;
• other levels, working constantly;
• heads of municipalities;
• other persons who engage in various kinds of public activities.

Read also Making an insert in the work book

To better understand the issue, consider the following examples. An accountant working in the structure of local government will be prohibited from obtaining the status of an individual entrepreneur on the grounds that he is a public servant. Well, if a citizen works in the same specialty, but in a private company, then he may well be an individual entrepreneur . But a teacher who works in a school with state status can register as an individual entrepreneur without any problems. But having settled in the same way in the local education department, he will not be able to do this.

Is the relationship with the employer changing?

Important! Another question that arises in this regard concerns the prospects for further relations with the employer. Entrepreneurs are thinking about whether it is possible to remain in labor relations without changes. The answer depends on each situation taken separately. But in general, there will be no changes.

Both before registration and after it, the individual entrepreneur will also receive wages and make appropriate contributions to the FIU, as before. An additional report in this case is not required.

In the work book of the employee there is a record that the citizen got a job at a certain point in time. There is no information that he became an individual entrepreneur. Thus, there are no conflicts regarding whether or not both areas of activity can be combined.

But, despite the fact that nothing will change in the documents with the employer, the latter can find out about the status of his employees, since this information is available on the Internet and is in the public domain. Then the course of events may be different.

Possible risks and difficulties

Some individual entrepreneurs who work both for the employer and for themselves say that insurance premiums are paid for them at the place of official employment. However, one should not be deceived in this regard. Separately, the individual entrepreneur is obliged to pay a certain amount as a fixed contribution. At the same time, insurance paid by the employer is also mandatory.

But whether it is possible and necessary to notify the boss about opening his own business or not, the individual entrepreneur decides on his own, based on the relationship. If there is no special need, then he is not obliged to do this.