Questions related to correct design employer of labor relations with employees, we have covered on our website more than once. For your convenience, we have decided to create a simple and clear instructions, showing a picture of the relationship between the individual entrepreneur and his employees as a whole.
In addition, in some articles of the Labor Code, without indicating the status of the employer, the concept of “employees of the organization” is used, i.e. such requirements do not apply to all employers, but only to employers - organizations.
The obligation to pay severance pay upon termination of an employment contract due to a reduction in the number or staff is prescribed only for organizations (Article 178 of the Labor Code). Article 180 of the Labor Code provides for a number of guarantees and compensations, also only for employees of organizations. Employer - IP can also pay severance pay to his employee, but on a voluntary basis, indicating such conditions in the contract.
Thus, you need to know that not always the law imposes the obligations of the employer on individual entrepreneur in full.
The short workflow for an employer is as follows:
In the course of conducting the activities of the organization and the entrepreneur, there comes a time when it is necessary to hire an employee from the LLC immediately, because. she has a director - nowhere without him, and the IP, as such a need arises. At this point, a number of questions arise - what is needed, what documents, the procedure for admission, applications, labor, employment contracts, and so on. We will reflect these points in this article and consider the option when you have a candidate and you need to document it.
In order to hire an employee, you need to request the following documents from him:
If the organization has employees who perform some kind of work, even office work, it is necessary to carry out to identify harmful and dangerous factors in their work. Relatively, this is a fiction, but according to the law, this requirement is mandatory and applies to both organizations and entrepreneurs (according to Article 212 of the Labor Code of the Russian Federation and Part 1 of Article 8, Federal Law No. 426).
Yes, you can, of course, conduct an assessment even after you start working, but keep in mind that you can be held administratively liable, both as an individual entrepreneur and as an LLC. To begin with, they can issue a warning, but there are also material levers of influence, exactly like the suspension of the enterprise, and a repeated violation will be punished more severely.
Important! Since 2015, the administrative fine for the absence of a SOUT is - for officials and IP 5-10 thousand rubles, for an LLC - 60-80 thousand rubles, with a repeated fact - from 30 to 40 thousand rubles. and from 100 to 200 thousand rubles. accordingly, they can also suspend the activities of the enterprise for up to 90 days.
Before accepting an employee, in some cases, a medical certificate is required, for this he must undergo a medical examination in a special center, after which he will be issued a supporting document. It is also possible at the request of the employer to request such a document.
When you need a medical certificate:
The basis for initiating employment, exactly like the conclusion of an employment contract, is the writing by an employee. If this application is approved by all managers, it is endorsed by the director or general manager the company and the personnel department begin to receive and process all the necessary documents.
However, it is worth noting that at present the application is not a mandatory document for employment, you can do without it. This follows from the fact that the basis for concluding an employment relationship between an employee and an employer is precisely an employment contract, on the basis of which they will already form an order for employment and other personnel documents.
The basis for establishing labor relations between the employer and the employee is the conclusion of a civil or labor contract with him - in fact, a description of all the obligations of the participants in writing and securing with seals and signatures on both sides. It is drawn up in 2 copies - one remains with the employee, the other with the employer.
What is reflected in employment contract and expiration date
All terms of the contract should not contradict labor laws, usually contains the following information:
The employment contract may contain other conditions that need to be reflected on paper. This may include an expiration date for:
It is also possible to conclude an employment contract on non-disclosure of the trade secret of the enterprise and an agreement on full or partial liability (most often warehouse workers and other responsible persons).
After an employment contract has been drawn up with an employee or several contracts - for example, an additional liability contract, the numbers and dates of these contracts are endorsed in.
After receiving his copies of the documents, the employee signs in the appropriate column, in order to subsequently, if necessary, prove that such an agreement was issued to the employee in his hands.
The basis on which an employee begins his official duties or is vested with some kind of authority is an order for employment. The order displays the conditions under which the employee is invited and, after familiarization, is endorsed by both parties. As a document, a unified document is used for one and T-1a for a group of persons.
Before an employee begins to perform their job duties, they must first be drawn up and described in the appropriate document. After familiarization with this list, a seal is put and the date of familiarization is also printed in two copies.
If the duties are for a group of people, or they are typical, then you can make an acquaintance sheet where all employees accepted for this vacancy will sign, indicating their names and date of signing.
After you have completed everything Required documents, and you have all the signatures on them, you must within 5 days. Sometimes you should not do it right away, because. sometimes there are nuances and the employee simply does not go to work, so it is better to wait for the working week.
After you have successfully completed work book, you will also need to register it in .
Simultaneously with the reception of the employee, a personal card of the employee is issued, in which his personal data is entered
During the life of the enterprise and visits by employees, it is necessary to keep records of working time for each employee. State. com. stat, two forms are established:
After the appearance of hired employees, you need to register (simply, get a number in the systems) the organization in the funds as an employer.
There are several options for formalizing the relationship between the person providing the work and the person performing it. The method of employment determines the procedure for applying for a job, the rights and obligations of the parties, responsibility, the procedure for paying taxes and mandatory contributions, and much more.
In Russia, the relationship between an employee (executor) and an employer (customer) can be formalized in one of the following ways:
Labor contract- an agreement between the employee and the employer, according to which the employee undertakes to regularly perform the functions assigned to him by the employment contract, observe the labor schedule, and the employer undertakes to provide conditions for the performance of work, provide the work itself and pay wages on time and in full. Relations within the framework of this agreement are regulated by labor legislation, in particular, the Labor Code and relevant federal laws.
Signs of an employment contract:
Registration for work under labor law includes the following steps:
When hiring an employee, the employer is obliged to pay personal income tax and insurance premiums for him, provide tax, statistical and other reporting, provided by law Russian Federation, to respect the rights and interests of the employee.
You can familiarize yourself with the procedure for hiring under an employment contract in more detail.
Civil contract- an agreement between two or more persons, the purpose of which is the performance of works or services specified in the contract. A civil law contract is most often concluded if it is necessary to perform one-time work, if the volume of services provided is small and it makes no sense to hire a person for a short period of time.
There are several types of civil law contract:
Note: the conclusion of a civil law contract as a whole is much more profitable and convenient than the execution of an employment contract.
note that when concluding a civil law contract, an entry in the work book is not made, but in the general seniority the time of work under the specified contract is included. If the contract is concluded with a natural person, the employer is obliged to pay income tax for the employee and insurance premiums in the Pension Fund of the Russian Federation and the Compulsory Medical Insurance Fund (in the FSS, contributions are paid only if it is stipulated in the contract).
| sign | Labor contract | Civil contract |
|---|---|---|
| Subject of the contract | Performance of a labor function | The result of the performance of work or the provision of services |
| Opportunity to hire 3 persons | Impossible | Maybe |
| Compliance with internal regulations work schedule | Necessarily | Not necessary |
| Conditions for doing work | The employer is obliged to provide the employee with appropriate working conditions | The employer is not obliged to provide the employee with any conditions for the performance of work |
| Documentation | After signing the contract, it is necessary to draw up a large number of documents for the employee: an order for employment, staffing, vacation schedule, personal card, work book and SNILS (if the employee gets a job for the first time), etc. | After the execution of the contract, only an act of acceptance of work or provision of services is drawn up. |
| Size of salary | The salary cannot be less than the established minimum wage per month. The contract is considered invalid if it does not contain an indication of the amount of salary | The amount of payment is established by the contract and is not tied to the minimum wage, its indication in the contract is not necessary |
| Payment procedure | At least 2 times a month | The payment procedure is determined by the contract |
| Contract time | By general rule- indefinite. In exceptional cases, it may fixed-term contract | Only urgent. The absence of an indication of the term in the contract makes it invalid. |
| Possibility to extend the term of the contract | Maybe | Impossible |
| Tools to get the job done | Provided by the employer. The employee, in agreement with the employer, can use personal property, but in this case he is compensated for the depreciation of this property | The employee uses his own funds to perform work (render services) |
| The procedure for terminating the contract | An employee can only be fired for certain reasons. The employee himself has the right to terminate the employment contract by own will | The procedure for terminating the contract is provided for in the document itself. special conditions its termination for both the employee and the employer is not established by law |
| Responsibility for non-fulfillment of obligations stipulated by the contract | For the employer, administrative responsibility is provided, for the employee - disciplinary (reprimand, reprimand, dismissal). There are no penalties for the employee. | Penalties for an employee may be provided for by the terms of the contract. If the employer does not pay and does not accept the work on time, he is obliged to pay the employee interest for the use of other people's money |
| Taxation | The employer pays income tax and insurance contributions to off-budget funds for the employee | If the contract is concluded with the individual entrepreneur personal income tax and he pays contributions on his own |
You can familiarize yourself with the types of civil law contract, its pros and cons for the employer and employee in more detail.
Remote work is the activity of an employee carried out outside the stationary place of work (at home, in transport, cafes, abroad, etc.). As a rule, an employee receives an assignment from an employer remotely: by mail, via the Internet, etc.
There are two types of remote work:
home work involves the manufacture of products that have a material form, for example, collecting pens, growing mushrooms, embroidery, knitting, etc.
result remote work is not a thing, but information, information, objects intellectual property. Remote employees can be journalists, editors, content managers, copywriters, programmers, etc.
A remote worker can be registered both under an employment contract and under a civil law contract.
Note: payment of mandatory payments and contributions depends entirely on the method of registration of the employee, and whether he has the status of an individual entrepreneur.
Agency work is the work of employees on the orders of the employer, carried out in the interests, under the management and control of persons with whom they do not have labor relations. Since 2016, agency work, with the exception of certain cases, has been prohibited in the Russian Federation.
There are 2 types of agency work:
Outsourcing the transfer of certain functions or tasks to a third-party contractor (organization, individual entrepreneur, to an individual). Relations within the framework of outsourcing in most cases are formalized by a contract for the provision of services for a fee. Most often, outsourcing is given to accounting, tax and personnel records (preparation and submission of declarations, reporting, etc.), legal support. Since outsourcing does not transfer the contractor's employees to the customer given form agency work is permitted and can be used by the employer to reduce the cost of maintaining the staff.
Outstaffing is the transfer of employees from the contractor to the customer. Employees, being on the staff of the contractor, carry out their work and are subordinate to a third party. Since 2016, this work has been prohibited and its use entails bringing to administrative responsibility.
An exception for the use of agency labor is made for:
Work without formalization employee threatens the employer with quite serious problems. current legislation provides for administrative, tax and criminal liability for illegal hiring and employment of employees.
So, according to the Code of Administrative Offenses of the Russian Federation, an employer can be held liable for violation labor law, which threatens him, in turn, with a fine of 1,000 to 5,000 rubles. for individual entrepreneurs and from 30,000 to 50,000 rubles. for the organization.
An employer is brought to tax and criminal liability due to the fact that it does not properly fulfill the duties of a tax agent, namely, it does not calculate and transfer to the budget the amount of taxes for its unregistered employees.
A potential employee must provide the future employer with documents, without which it is impossible to formalize an employment relationship.
The law establishes mandatory requirements, in accordance with which it is necessary to provide:
Almost all employers practice the implementation of salary payments in a non-cash way on bank card worker. In this case, you must attach to the main package of documents the details of your bank account for transfers. You can get them at any branch of a banking organization.
To officially register an employee, you will have to take on several important obligations:
When accepting minors, it should be borne in mind that for their employment, according to the legislation, special requirements to the mode of work.
To accept them, and at the same time not violate anything, you need to fulfill 2 conditions: organize a medical examination of such an employee and obtain permission from the social protection authorities.
For a medical examination, healthcare institutions are involved for a fee, but in order to obtain a permit, a minor fills out a special form, to which the employer is obliged to attach projects and job description. It will be possible to formalize labor relations only after obtaining a written permit certified by the authorized head of the social protection authority.
It is possible to find out whether the professional level of an employee meets the requirements of the organization by checking his labor skills for a certain period of time. If it turns out that the skills leave much to be desired, then the cooperation ends.
However, a condition on a probationary period may not be established in relation to:
To determine the allowable probation you can use a small table:
To know how to properly place an employee for work, you should use the legally correct action plan:
Step 1. Familiarize the employee with the internal labor regulations, the collective agreement, safety instructions, job description, labor protection instructions. Familiarization is carried out under a personal signature, one of the copies of the job description is handed out. If necessary, you can hand over other local acts necessary in the work. At this stage, some potential employees may decide that the job is not for them. It will be possible to release them without unnecessary bureaucratic procedures.
Step 2 When the employee has studied the basic documents on the basis of which he will conduct his activities and agreed with everything, he must write an application for employment. In the application, indicate the position for which you are applying, the size of the rate. The application is accepted by the secretary and begins to form the personal file of the employee. The personal file is assigned a number, a mark is made on the date of commencement of maintenance.
Step 3 The employee provides all the necessary documents for employment. The secretary of the organization checks the originals of these documents for compliance with the laws and makes the necessary copies. Subsequently, they are placed along with the application in the "personal file" folder.
Step 4 An employment contract is concluded, in accordance with which labor rights and obligations of each party arise and function. It is prepared in several copies for each side. This document is signed by them at the time of conclusion. It is desirable that the employee certifies the receipt of his copy with a personal signature. It is recommended to sign each page. Alternatively, you can staple the document and certify the taped cover with "Lace and Number" written on it.
Step 5 An order is issued to accept an employee. This order standard form established by law. The order is signed by the representative of the employer. The employee must be familiarized with it within 3 days from the start of work. There is no need to give him a second copy, but at the request of the employee, he can receive a certified copy.
Step 6 An entry is made in the work book, which was provided by the employee or issued at his own expense by the employer. The record contains information about the date and for what position the employee was hired, the name of the employer and the details of the order for employment.
After this, the employment relationship is considered finalized. Further, it will be necessary to conduct a mandatory introductory briefing to ensure the safe performance by the employee of his job duties, an initial briefing by the immediate supervisor.
Can officially accept an employee entity or individual entrepreneur. The algorithm is common in both cases, however, the entrepreneur must know how to properly register the employee , if he does it for the first time.
Feature in this case next: any employer is obliged to make special payments for his employees in Pension Fund and the social security fund. The organization must be registered with these bodies immediately after its creation as an employer. But the IP is not required to do this immediately.
Many individual entrepreneurs believe that such actions are not necessary, because by default they pay the necessary contributions for themselves. You need to understand that there are very clear distinctions. Just making contributions and paying them for your employees is a big difference.
So, how can an individual entrepreneur register an employee and do everything legally competently:
From the moment the first employee appears, the employer has 30 days to register with the pension fund of the Russian Federation. To do this, you need to prepare an application (form on the PFR website), attach the following documents and send the package to the territorial office of the PFR:
You can register as an employer before and after hiring an employee. After being hired, the employer has 10 days to collect the necessary package of documents and submit to the FSS:
The scheme for accepting a part-time employee is practically no different from full-time employment, but several features should be taken into account. So the algorithm looks like this.
The following features should be taken into account.
In practice, this means the following. As a general rule, the full rate for production is 8 hours per day or 40 hours per week. But, for example, for teaching staff, the rate may be at the level of 18, 20 or 24 hours a week.
That is, if for most of the workers the half rate will be 4 hours a day, 20 per week, etc., then for teachers or other categories this number of hours will be less, depending on the full rate.
Therefore, the contract specifically prescribes the number of hours worked per day, week or month, depending on the work schedule.
Such an indication is necessary due to the fact that on the territory of the Russian Federation there is legal condition on the amount of the minimum wage, below which it is prohibited to pay an employee. In each region, the minimum wage is slightly different, depending on the current coefficient.
In order to avoid problems during labor inspectorate inspections, it should be clarified in the contract how the employee's remuneration is calculated and why it is less than the minimum established by law.
The employee simply prepares copies of all pages of the work book (certified by the employer at the main place of work) and transfers them to the organization where he will work part-time. Usually such work is called part-time work.
In case of temporary absence from work of one of the employees due to illness, maternity leave, long vacation, etc. the employer may need to involve another person to temporarily perform work for which the absent employee was responsible.
There are several main options for engaging in this work.
Such an employee will be forced to perform his main job, as well as assigned to him additional responsibilities. Therefore, for the effectiveness and efficiency of the organization, such a decision is not always successful.
Transfer is possible for a period not exceeding 1 year. An entry in the work book about this is usually not made, except in cases where the employee is eventually invited to perform replacement functions on an ongoing basis. In this case, an entry is made in the work book about the transfer to new job from the start of actual substitution.
Otherwise, when the temporarily absent employee returns to the performance of his duties, the employee replacing him is transferred to the previous position that he previously held.
Transfer to another job, regardless of the prospects for such a transfer, is always made with the consent of the employee, by concluding an additional agreement to the employment contract.
The exact period for which the contract is concluded may be indicated, if known exact date when the main worker returns to work.
There are the following options for not paying taxes for an employee.
This option is very profitable, but very risky. If the truth is revealed and it is recognized that the contract with him was not concluded illegally, then the legal entity or individual entrepreneur will face serious penalties. The absence of documents on the performance of the employee's labor function can be disputed by testimonies or facts of regular transfers of funds.
But if Labour Inspectorate finds out that such an employee regularly performs his labor function (for example, he must be at the workplace for 8 hours every day), then it can also fine the employer, impose significant penalties on him and force him to conclude an employment contract.
To avoid punishment, one should carefully formulate the concepts in civil contract. Nothing should indicate the systematic work. Only a specific result of the performance should appear in the contract (in fact, in order to achieve such a result, the employee is likely to work for a long time).
An employee can register as an individual entrepreneur and the employer (in this case he will act as a customer) will not have to pay any taxes. But the worker himself will be burdened with the payment of many various payments, therefore, such a formalization of relations is advisable for him only when performing expensive types of work that can recoup the costs associated with the design of an IP.
Not many entrepreneurs work alone. More often, for business development, they need assistants, whom the law obliges to formalize.
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What is the right thing for an individual entrepreneur to do when hiring employees, what do you need to know and what laws regulate your actions?
Every employer is required by law to officially employ employees, regardless of the type of entrepreneurial activity.
According to article 67 Labor Code, within three days from the moment the employee is admitted to work, the employer is obliged to conclude with him.
Article 66 of the Labor Code mentions the responsibility of the employer for maintaining work books.
According to the normative act, the entrepreneur undertakes to make an entry in the work book after 5 days from the date of taking office. Exceptions are cases when the employee is employed.
Article 226 of the Tax Code states that the employer is obliged to make deductions and transfers to the personal income tax authorities. And the lack of official employment is considered malicious tax evasion, for which criminal liability is provided.
If the entrepreneur ignores the requirements of the law, then he faces liability:
The conclusion of an employment contract and the official employment of employees implies an increase in the costs of the entrepreneur, but also protects against penalties.
The process of hiring an individual entrepreneur practically does not differ from the standard registration procedure for legal entities.
The actions of individual entrepreneurs in the employment of employees are as follows:
Registration in government bodies required for further payment of taxes and insurance premiums.
The procedure is carried out once, when the first employee is employed. After registration, the entrepreneur receives the numbers assigned to him for paying taxes. They do not have to match the numbers assigned to pay your own monthly taxes.
The terms are quite strict: within 10 days from the date of conclusion of the contract, the individual entrepreneur must register with the medical and social insurance funds, tax service, and in the Pension Fund - within 1 month.
From the moment the contract is concluded, the entrepreneur undertakes to provide the employee with a social package, which includes:
When hiring, an entrepreneur must familiarize potential employees with regulations, which include:
TO regulations include other documents that regulate the rules of work, employment, payment of compensation, leave, etc. Only after getting acquainted with them is an employment contract signed.
Well-written documents are important rule when hiring employees. They make the relationship between the employer and employees official, provide both parties with rights and oblige to comply with the laws of the Labor Code.
When registering employees, an entrepreneur may have personnel issues.
For example, is it possible not to employ an employee, is it possible to conclude a civil contract, how to register a person engaged in commercial activities etc.
Consider the most important personnel nuances that many entrepreneurs face:
The amount of salary and possible allowances is negotiated upon employment and indicated in the employment contract.
The payment system is also regulated by the entrepreneur independently, but not contrary to the law, or rather, Article 136 of the Labor Code.
According to her, the employer must display each day worked in the time sheet.
Wages must be paid twice a month.
For non-compliance with the rules, liability is provided for:
Any changes in the salary or pay date must be reflected in the employment contract against the signature of the employees.
An individual entrepreneur acts as a tax agent for his employees. He undertakes the obligation once a month to deduct from wages personal income tax payments and make contributions to the tax fund.
Insurance contributions to the pension fund are made the next month after the issuance of wages, but no later than the 15th. The rates for employees are, as a rule, 30% of the salary, but may be adjusted depending on the state of health of the employee, the presence of dependent children, and working conditions.
Let's look at an example:
Ivanov's salary was 20,000 rubles. They are deducted from:
The employer must transfer 6,020 rubles to the pension and insurance fund for Ivanov.
