/ Let's find out what to do if you worked unofficially and were not paid your salary?

Let's find out what to do if you worked unofficially and were not paid your salary?

Most employees try to find an employer who provides official employment and regular wages, however, there are many enterprises in the labor market that hire workers without an employment contract. Typically this is small companies or IP. Often, refusal to conclude an agreement occurs on the initiative of an employee who would not like to pay taxes and other mandatory contributions to pension and insurance funds from his salary.

But such carelessness of the employer and employee negatively affects the employee himself, since his rights are practically not protected by labor legislation. For example, a manager can easily fire his employee or leave him without salary. What to do if you worked unofficially and were not paid your salary?

Not registered at work: causes and consequences

There is one misconception among both employees and employers that informal employment makes it easy to violate the law. Remember that the manager is still responsible for his employees, and employees are also required to file income returns and pay taxes on wages, albeit unofficial.

According to Article 61 of the Labor Code of the Russian Federation, an employment agreement is considered concluded if an employee begins to perform his job duties without having a formal employment contract.

For the absence of an employment contract by law a fine is provided for the employer, as well as obligations to pay taxes for the salary issued “in an envelope”. But the greatest consequences will be for the employee who worked unofficially. Which ones?

Employee rights when leaving

Official employment is more preferable, and not even because it does not violate labor laws. The main advantages of having an employment contract are:

• Future pension;
• Social package and financial stability;
• Full protection of employee rights.

But in the absence of an employment agreement Contributions to pension and insurance funds are not paid by the employer, which means you shouldn’t wait for a good pension and insurance. In addition, an employee who worked unofficially may lose his bonus and other benefits. What payments can an employee expect upon dismissal?

Upon final payment, the employer is obliged to pay:

1. The full balance of wages for all days worked, taking into account overtime and bonuses.
2. Compensation for vacation, sick leave and other benefits.
3. Payment for forced dismissal in the amount of the average monthly salary.

Also, on the day of dismissal, the head of the enterprise is obliged not only to make a full settlement with the employee, but also to return everything to him. Required documents, including a work book, a certificate of income and an extract on the procedure for calculating wages.

Why don't they give the payment?

If an employee has not been paid a salary (delayed or partially paid), then this is one of the reasons for a conflict with the employer. Often, employees cannot immediately receive a full payment and are forced to beg for their earned money from management. Non-payment of wages is usually related to several things:

• The desire of the manager to save money by deceiving the employee and not giving him a salary;
• A conflict, because of which the employer, due to resentment, decided to take revenge on the former employee;
• Lack of free money, especially if the employer is an individual entrepreneur or a small enterprise.

And if the last reason can somehow be understood, then the first two are not. Full payment on the day of dismissal is the responsibility of the employer. And even if the employee worked unofficially, he must receive his wages.

One of the reasons for unofficial wages or “minimum wages” is taxes. Many employers do not want to pay an additional 30% of their salary to the funds, just like employees do not want to pay 13% of personal income tax, preferring to receive more.

Since payment of wages is the responsibility of the enterprise, then don’t give up resolving the conflict with management even after dismissal. The employee has the right to the court or labor inspectorate and file a complaint about violation of labor laws.

What to do if income is not paid?

The main argument why former employees do not complete the resolution of the issue of payment of wages is the absence of an employment contract. But it is worth knowing that even if you worked unofficially and were not paid your salary, you have the right to file a complaint with the supervisory authorities or even go to court to demand repayment of the debt.

Where to go and file a complaint against an employer?

There are three government bodies that deal with labor disputes. A complaint against an employer who has not paid wages can be filed to the prosecutor's office, labor inspectorate and court. How to do this?

Before contacting the supervisory authorities, write a letter to the employer with a claim and a demand for payment of the final settlement. The application is drawn up in free form addressed to management and must be considered by the enterprise within 10 days.

If there is no response to the pre-trial letter, you should write a complaint to the labor inspectorate or the prosecutor's office. To do this, you need to fill out an application and attach an employment contract to it. If you worked unofficially, then You must provide any possible evidence of your employment:

1. Written testimony of witnesses.
2. Certificates and timesheets from work (photos of them are also suitable), payslips.
3. Bank statements about receipt of wages on the card.
4. Internal documents of the enterprise containing employee data.

One of these pieces of evidence will be sufficient to establish the fact of performance of labor duties. The complaint to government authorities must also describe the procedure for settlement of unpaid wages and the amount of debt on it.

But in the absence of evidence of informal employment (and if there is no employment contract), it is impossible to hold the employer accountable and demand repayment of the wage debt.

A complaint from a dismissed employee, which can also be submitted electronically via the Internet, is processed within 30 days. If there is an established fact of violations of the Labor Code of the Russian Federation, the employer will receive an order to repay the debt for unpaid wages. If the supervisory authorities did not help or there is not enough evidence of employment, then you should go to court.

Are there any chances of success?

In practice, disputes with an employer who has not paid wages are usually resolved amicably without the involvement of supervisory authorities. After writing a complaint, most managers try to resolve the conflict immediately, fulfilling all their obligations to the dismissed employee.

There are also high chances of success when applying to government agencies. The main thing is, if you worked unofficially and were not paid your salary, collect evidence of unofficial work activity. After inspection by government agencies the employer is obliged to repay the salary debt, since the fact of hiring an employee will be established.

The case of a salary that was not paid to an employee can also be considered in court, but this will only be a plus, since in the statement of claim the dismissed employee has the right to also demand compensation for his expenses, as well as moral damage. In this case, the employer will be obliged to pay a penalty for each day of delay in wages.

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Conclusion

Payment of wages in full and on time is the obligation of the employer, as defined by the Labor Code of the Russian Federation. And even if the employee worked unofficially, he still has the right to payment.
You can file a complaint against an employer who does not pay wages even in the absence of an employment contract. But for the prosecutor's office, court or labor inspectorate, it is necessary to provide evidence of the fulfillment of duties. Therefore, if you worked unofficially and are not paid, feel free to write complaints to the supervisory authorities.

Employers often ask their employees to stay after work, citing work needs or other reasons. Regardless of the circumstances, such work activity must be paid or compensated for by an additional day of rest. What to do if overtime hours are not paid? Let's try to understand this issue.

Overtime concept

Let us immediately clarify that not all types of overtime can be subsumed under the concept of “overtime.” This term is applicable only in cases where the manager asks the employee to stay after his shift to perform some work. Please note that the employer must be the initiator.

There are situations when an employee is delayed on his own initiative, for example, to prepare an urgent project for delivery. Such activity is not considered overtime work, so management is not obligated to pay for it.

Important! The wording “overtime hours” does not apply in cases where the clauses initially provide for irregular working hours. For such employees, 3 additional days of rest are provided, which, by agreement with the employer, can be replaced by monetary compensation.

Labor regulations

According to labor legislation, overtime work is carried out only with the written consent of the employee. This document does not have a set form, therefore it is compiled in any form.

Next, the boss is obliged to record the fact that work was performed in excess of the established norm by issuing an order for the enterprise. There is also no mandatory form to fill out, but the document must reflect the following points:

• the reason that served as the basis for performing work overtime;
• date and time of work completion;
• time of end of work: if this period cannot be predicted in advance, in addition to the order, an act confirming the duration is drawn up;
• surname and initials of the employee, indication of position;
• a note that the employee agrees to work overtime.

This order must be communicated to the employee and contain his signature.

Payment order

This point is regulated by the Labor Code of the Russian Federation. It is directly stated here that the first 2 hours worked in excess of the established norm are paid at one and a half times the regular salary. Subsequent time is paid double. We add that the amount of material compensation can be established by an order for the enterprise, an employment contract or other regulations.

Please note that overtime work performed during holidays or weekends and paid at an increased rate will not be taken into account when calculating as hours worked in excess of the norm.

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Who should not be asked to work overtime?

There is a category of workers who cannot be employed in excess of the norm. These include:

• women in;
• employees under 18 years of age (in exceptional cases does not apply to athletes and creative workers);
• trainees subject to a student agreement;
• parents with dependent young children.

In addition, the list can include employees who have contraindications to overtime work.

Permissible duration of overtime work

The length of the working week established by law cannot exceed 40 hours. This procedure applies to all employees, regardless of the form of employment and type of activity.

Overtime is limited to 4 hours for 2 consecutive working days. If we consider annual processing, its duration should not exceed 120 hours.

Important! This regulation applies only to work on . Overtime hours are not added to part-time work.

Time off or financial reward

According to the first paragraph of the Labor Code of the Russian Federation, an employee has the right to receive additional days of rest on account of previously worked time. The maximum duration of this form of compensation is not provided for by law, but the duration of time off must be no less than the number of overtime hours worked.

Important! The time for granting time off is agreed upon between the manager and the employee. If an employee decides to exercise this right on his own, such actions may qualify as absenteeism.

Is it possible to be required to work overtime without consent?

This possibility really exists. The employee's consent is not required in the following situations:

• preventing an accident or disaster;
• the introduction of martial law or the occurrence of emergency situations: epidemics, natural disasters or other situations that create danger for the population;
• necessary for the normal functioning of any systems or production lines, for example, the supply of water, gas or electricity.

In other cases, written consent is required.

What to do if overtime hours are not paid

It should be noted that employers often engage staff to work beyond the prescribed hours without having any documented basis for this. Of course, if the order is given only in words, it will not be possible to prove the fact of processing. How to act in such situations?

Order

If your boss requires you to stay after work, you must write a statement demanding that an order be issued for the enterprise to involve you in work activities in excess of the established hours. It is better to prepare the document in two copies: one is given to the manager, on the second you need to put a mark of acceptance. Such a note includes the date, signature with transcript and position of the employee who accepted the document.

An employer does have the right to leave an employee’s sick leave without pay. in certain cases. The list of grounds for refusal to accrue payments, as well as periods for which they are not accrued, are regulated by the Federal Law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity” dated December 29, 2006 No. 255-FZ (as amended on December 27. 2018), chapter 2, . It includes the following time periods:

• easy operation of an organization or enterprise;
• conducting a forensic medical examination;
• administrative arrest of an employee;
• taking him into custody;
• the period of temporary suspension of the employee from performing his work duties;
• if the illness occurred as a result of the employee committing a deliberate crime or he intentionally harmed his health.

The head of the organization has the right to refuse to pay for a certificate of incapacity for work if it is proven that it is counterfeit or issued incorrectly (there are errors or the seal of the medical institution is missing). And also if the duration of illness coincides with the time spent on vacation without pay. When one of the parents is on annual paid leave and is caring for a sick child, compensation payments are not accrued.

An important point is the timely provision of this document.

Attention: If the ballot is submitted for payment later than 6 months after its closure, then the accrual of benefits will be denied.

In what cases is a certificate of incapacity for work accruing little money?

There are a number of situations when sick leave is paid, but in a smaller amount(according to Part 1 of Article 8 of the Federal Law of December 29, 2006 No. 255 Federal Law).

1. If the patient violates the prescribed medical regimen or fails to show up for an appointment at the appointed time in the absence of a valid reason. In this case, the reduction in the amount of sick leave payments will be made from the day the violation was committed.
2. If there is an established relationship between alcohol, drugs or other intoxication employee and the onset of illness or injury. In this case, the smaller benefit amount will be applied to the entire period of incapacity for work.

Can the amount received under the BL be less than normal earnings?

Many people are interested in the question of why sick leave payments are sometimes less salary. This is due to the dependence of the amount of this amount on the employee’s insurance length.(according to Article 7 of Federal Law No. 255 dated December 29, 2006, as amended on December 27, 2018):

• a person who has an insurance period of 8 years or more is paid sickness benefits in the amount of 100% of his average earnings;
• if the employee’s insurance experience is from 5 to 8 years - 80%;
• when the insurance period is less than 5 years - 60%.

If the illness or injury occurs within 30 calendar days after termination of employment, the benefit amount will also be equal to 60% of earnings.

If a parent or guardian takes sick leave to care for a child and treatment occurs on an outpatient basis, then in the first 10 days of illness, payments will be accrued according to length of service. On subsequent days - in the amount of 50% of earnings.

When undergoing treatment in a hospital, the amount of payments depends only on the accumulated work experience. For a year of sick leave due to a child’s illness, you can receive payment for no more than 60 days(child's age up to 7 years) or 45 days (up to 15 years).

What to do if there are problems with accrual?

Important: Payment for temporary disability benefits is accrued to the bearer of the sick leave certificate within 10 days after its delivery to the employer.

If all the deadlines have passed and you still haven’t received the money, first of all you should ask the appropriate question in the accounting department or the human resources department. Perhaps, for objective reasons, the required amount has not yet reached the recipient.

The next method is to contact the director of the organization with a request to receive a written justification for the refusal of payments. If these actions do not lead to resolution of the conflict situation, proceed to the next step.

Drawing up a complaint

When an employer categorically refuses to pay sick leave in the established form, the employee has the right to file a complaint to appeal to higher authorities to resolve the dispute. The following information must be indicated in the text of the document:

• personal data of the applicant (as a rule, full name, passport data and registration address are sufficient);
• information about the organization providing the work, the period of cooperation with it and the position you hold;
• a brief statement of the current situation and the actions you have taken to resolve it peacefully;
• details of the certificate of incapacity for work for which the payment of benefits was refused;
• It is recommended to attach a copy of correspondence with the employer on this issue and refer to the legislative acts regulating the current issue.

The information provided should be as complete as possible, but it should be presented only on the essence of the conflict, avoiding the expression of unnecessarily negative emotions. This will help expedite the review of the complaint.

Where to contact?

First of all, yours the application should be sent to the Labor Inspectorate. Often this helps to resolve the situation without bringing the matter to trial. If the appeal to this government body also did not have a positive effect on resolving the conflict between the parties, then the corresponding complaints can be sent to the judicial authorities and the prosecutor's office.

Consideration and result

Based on the results of consideration of the complaint received from the employee, depending on the current situation, the authorized body will make a decision either in your favor or in favor of the organization that refused sick pay (if proven legal).

Reference: The period for consideration of a complaint by the Labor Inspectorate can be up to 30 days, after which a written response will be sent to the applicant about the results of the inspection and measures aimed at resolving the conflict.

If the law is on the employee’s side, the employer will be obliged to pay him the benefits due for temporary disability, and in some cases also compensation for non-payment of sick leave.

Responsibility

The person responsible for paying sick leave is the employer. Responsibility arises if an inspection carried out by the State Labor Inspectorate reveals the illegality of the actions of representatives of the organization in relation to their employee on the issue of payments related to his temporary disability.

Depending on the nature of the identified violations, it is possible to bring to material, administrative and criminal liability (according to Article 419 of the Labor Code Russian Federation).

Labor Code of the Russian Federation Article 419. Types of liability for violation of labor legislation and other acts containing labor law norms

Persons guilty of violating labor legislation and other acts containing labor law norms are brought to disciplinary and financial liability in the manner established by this Code and other federal laws, and are also brought to civil, administrative and criminal liability in the manner established by federal laws. laws.

Fine and other forms of punishment for late payment

In accordance with Article 5.27 of the Code of Administrative Offenses of the Russian Federation fines may be imposed on an organization that violates labor laws.

1. If the violation is committed for the first time, fines for organizations (legal entities) vary from 30 to 50 thousand rubles.
2. In case of repeated commission of similar violations, the fine will be from 50 to 70 thousand rubles.
3. For organizations operating without forming a legal entity, in case of a primary violation a penalty is imposed in the amount of 1 to 5 thousand rubles, in case of a repeated violation - from 10 to 20 thousand rubles.
4. Punishment for officials who violate labor laws for the first time may be limited to a warning or payment of a penalty ranging from 1 to 5 thousand rubles.
5. An official found guilty of repeated misconduct before the law may be subject to a fine of 10 to 20 thousand rubles, or temporary removal from office for a period of 1 to 3 years.

Federal Law No. 382-FZ of December 23, 2010 provides for criminal liability and large penalties for the guilty party, depending on whether the non-payment was full or partial, and the period of its delay. Punishment in this case can be expressed as a fine from 100 to 500 thousand rubles, deprivation of the right to work in a certain position for a period of 1 to 3 years, or imprisonment for a similar period.

Provides for financial liability that the employer bears in case of delay in payments. It is expressed in the fact that interest is accrued daily on the amount of debt of at least 1/150 of the key rate of the Central Bank of the Russian Federation for each day of delay. If the payment was not made in full, the amount of monetary compensation is calculated based on the amounts that were not paid on time.

If the employer violates the terms of payments under the certificate of incapacity for work, you should not sit idly by. If you are confident that you are right and consider his actions unlawful, then you should first try to resolve the problem amicably. If contacting the HR and accounting departments, as well as directly to the manager, does not have any effect positive effect, you can safely contact higher authorities to protect your rights.

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Where to go and what to do if the employer does not pay wages

Where to go if you don't get paid? This question, despite the rather tough legal regulation in the labor sphere, still does not lose its relevance.

In this case, there are several options for the development of events (by the way, nothing prevents you from using all of them at the same time):

If you don’t know where to turn if your salary is not paid, then keep in mind that the first authority should be your management. According to current legislation (Article 142 of the Labor Code of the Russian Federation), the employee has the right to self-defense, which can be expressed in the form of absenteeism in the event of a delay in payment of wages for more than 15 days. But it must be said that in this case the employee is obliged to notify the employer in writing of his intention.

At the same time, the provisions of the law establish the employee’s obligation to report to work no later than the next day after receiving notification from the employer of readiness to pay the debt on the day he resumes work.

In addition, this article of the Labor Code provides for a number of restrictions for workers in certain professions who do not have the right to suspend work:

Contacting the labor inspectorate

This method is effective and most convenient for the majority of workers for the reason that this body was created precisely for the purpose of ensuring the implementation of labor legislation and supervising its implementation. In order for the labor inspectorate to come to your aid, it is enough to write a written appeal in free form.

Based on it, an inspection will be carried out, based on the results of which (if a violation of the law occurs) sanctions will be applied to the employer. In addition, inspection specialists will help you draw up the necessary documents to go to court.

Going to court

In this case we're talking about It’s not about punishing the culprit, but about returning what was honestly earned. The authorized bodies (mentioned above) will apply sanctions against the employer, and you need to worry about getting your money back.

In the statement of claim, you can demand not only the return of the debt amount, but also the accrual of compensation in the amount of 1/150 of the key rate of the Central Bank of the Russian Federation (at this moment is 7.50% per annum) for each day of delay. It should be noted that accrued compensation should be calculated from the day following the day when your wages should have been paid. That is, if it should be issued on the 15th, then compensation will be accrued from the 16th.

In addition, if wages are not paid, it would be a good idea to contact the prosecutor’s office, but more on that later.

Everyone can use one or more of the proposed options (see also: Where to complain about an employer, and how to complain correctly?). One thing is for sure: if an employer does not pay wages, he can and should be held accountable and his rights protected. For this purpose, the legislator has provided several effective legal protection mechanisms.

Don't know your rights?

How to submit an application to the prosecutor's office against an employer

The prosecutor's office is a supervisory body authorized, among other things, to conduct prosecutorial checks on received complaints from citizens (see: How to file a complaint with the prosecutor's office (sample)?). Due to the fact that current legislation provides for several types of liability, the prosecutor has the right to conduct an inspection with a view to applying sanctions against the unscrupulous employer.

How to proceed:

1. Come to the prosecutor's office.
2. At the entrance, find out the name and office number of the officer on duty (the prosecutor or one of his assistants or deputies).
3. Explain to the duty officer the essence of the problem.
4. Write a statement with him.

If you do not have time for personal visits, you can write a free-form application and send it by mail.

Who and where to call if wages are delayed

Who can I call if my wages are late? In accordance with Articles 2 and 3 of the Law “On the Procedure for Considering Appeals from Citizens of the Russian Federation” dated 05/02/2006 No. 59-FZ, citizens have the right to appeal to any government body in any form and receive a response to their appeal.

The law does not provide for a mandatory form of such treatment. Therefore, if wages are delayed, you can also contact the above-mentioned authorities - the prosecutor's office or the labor inspectorate.

But it should be noted that all official checks are carried out only if there is a reason, that is, an appeal that must be formalized in writing. This means that you can get advice on possible further actions and arrange a meeting with representatives of a government agency by telephone, but if you want these authorities to take real action to resolve the current situation, you will still have to apply in writing.

How long can they not pay wages and is this acceptable?

In general, if you don’t get paid, we’ve told you what to do. However, life is unpredictable, and the situation may turn out to be such that the delay occurs for reasons beyond the employer’s control. In this case, a reasonable question arises: how long can wages be legally delayed?

According to Art. 136 of the Labor Code of the Russian Federation, wages must be paid at least 2 times a month - on days established by the internal labor regulations of a particular organization. In this regard, violation of the specified deadlines even by 1 day is unacceptable and may be grounds for holding the employer liable.

Of course, it is unlikely that anyone will knock on the doors of the authorities if the money was delayed for a day, but from a theoretical point of view this is possible. Thus, we emphasize once again: wages cannot be delayed regardless of the timing. Otherwise, there is a reason to hold the employer liable.

Responsibility of employers who do not pay wages (including after dismissal)

If wages are delayed or in case of violation of other labor rights of employees, the employer is responsible for this under Parts 6 and 7 of Art. 5.27 of the Code of the Russian Federation on Administrative Offenses:

• a fine of 10,000 to 20,000 and from 1,000 to 5,000 rubles is imposed on officials and individual entrepreneurs, respectively;
• for legal entities the fine ranges from 30,000 to 50,000 rubles;
• if a violation of this kind is repeated, the fines increase: from 20,000 to 30,000 rubles for officials, from 10,000 to 30,000 for individual entrepreneurs and from 50,000 to 100,000 rubles for organizations.

In case of complete non-payment of wages for 2 or more months, sanctions are applied in accordance with criminal law. Art. 145.1 of the Criminal Code of the Russian Federation provides for punishment:

• in the form of a fine, the amount of which ranges from 100,000 to 500,000 rubles or equal to the salary or other income of the convicted person for a 3-year period; or
• imprisonment for a term of up to 3 years plus deprivation of the guilty person the right to carry out certain activities or the opportunity to occupy certain positions for a similar period (or without it). It all depends on the specific circumstances of the case and the classification of the act under parts 2 or 3 of this article.

Now about good reasons for delays in wages. If the employer does not pay wages on time, but this delay occurred due to circumstances beyond the will of the employer, he, in accordance with current legislation, is obliged to pay compensation to employees, which is calculated at the key rate of the Central Bank of the Russian Federation (see. : What compensation is due for delayed wages?). He may also be additionally brought to administrative liability.

The legislator is strict in this matter: he did not provide for the possibility of avoiding payment of compensation even in the event of force majeure circumstances. But administrative and criminal liability can be avoided (as judicial practice shows).