How does an employment contract differ from a civil contract?

Main differences

In practice, two types of agreements are concluded.
Both contracts are aimed at regulating the relationship between two parties. The Labor Code of the Russian Federation names the parties as the employee and the employer. Chapter 39 of the Civil Code refers to them as the customer and the executor. Contracts are concluded to legitimize the relationship between two parties. This is where the similarities end. The differences are presented in the table.

The table shows that for employers a service agreement is more profitable, since the main difference between these legal agreements is the social package.

The legislative framework

To determine the content of the GPC agreement, one should be guided by Chapters 37 and 39 of the Civil Code of the Russian Federation, and not by the Labor Code (Article 57 of the Labor Code of the Russian Federation). Accordingly, terms such as “employee” and “employer” cannot be indicated in the text of the agreement, since they are used in labor law.

Instead of these terms, such terms as “customer”, “performer”, “contractor” should be used. In addition, the contract should not indicate the word “salary” as payment; instead, “remuneration” should be indicated. Also, terms such as "working time", "rest time" or "vacation" cannot be used (

Nuances

When the difference between a civil contract and an employment contract is violated, there is a risk that it will be reclassified by the court. Such cases occur in practice. Therefore, it is extremely undesirable to violate the differences between an employment contract and a civil law contract.

3 common mistakes when concluding contracts:

1. The use of words in the GPC agreement: “salary”, “labor duties”, “employee”, etc.
2. Conclusion of an agreement for the systematic execution of work.
3. Non-compliance of the work performed with the contract signed by the parties.

Errors indicate that labor relations are being replaced by civil law ones. It is better to avoid such misunderstandings. According to the court, a person can return all benefits due.

Therefore, when documentation is drawn up, it is necessary to strictly ensure that the difference between an employment contract and an employment agreement is respected.

The peculiarities for employers are that when registering under the Labor Code of the Russian Federation, you need to pay the entire range of taxes. Under a civil law agreement, transfers are made for pension and health insurance. Other transfers are made if they are provided for in the contract.

Important! The two types of agreements are different in nature. The employee performs his duties regularly. A civil contract is concluded to achieve a result. No one will just pay money like that.

If the work is performed poorly or deadlines are violated, the amount of the remuneration may be reduced and sanctions for delay will be imposed.

The difference between a concluded employment contract and an employment agreement is that the first document is regulated by the Labor Code of the Russian Federation. The law does not define the second term.

What distinguishes a GPC agreement from a labor agreement?

The GPC (civil law) agreement for the performance of certain services must stipulate a certain amount of work that an individual will be required to perform. In such an agreement it cannot be stated that the person is accepted as a driver. Its task should be indicated: that is, the delivery of cargo along a specific route. This means that the GPC agreement does not indicate the position for which the individual is hired. In addition, if the contract contains references to the staffing table, to a certain specialty or profession of a person, then all this may be the basis for recognizing the contract as an employment contract.

A GPC agreement, unlike an employment agreement, does not provide for the obligation of an individual to obey the Internal Labor Regulations or other local regulations of the company, including the orders and instructions of the director. Also, a GPC agreement, unlike a labor agreement, does not provide for the possibility of paying remuneration for a person’s work. Payment is provided solely for the final result. If a person’s work under such an agreement does not lead to the final result, then payment can be made to him.

Important! The GPC agreement cannot include terms for time-based payment for work. It must indicate payment for the work performed, otherwise the GPC agreement may be considered as an employment agreement.

Another important difference between a GPC agreement and an employment agreement is that in the first case an individual does not have the right to count on any social guarantees. Such guarantees are provided for by the Labor Code of the Russian Federation and apply only to employees hired under an employment contract:

• annual paid vacation;
• sick leave and maternity leave.

The actual performance of work or services under the GPC agreement must have documentary evidence. For example, this can be confirmed by a certificate of completion of work or another document that confirms acceptance.

Important! If work under a GPC agreement provides for regular payments rather than one-time payments, then you should conclude not one agreement, but several agreements every month. You can also provide an advance payment system. If regular payments are specified in the contract itself, then it can be considered as an employment contract.

Procedure for consideration of controversial issues

Disagreements between the parties are resolved through court.
The differences between an employment contract and a civil law contract are that an employee can turn to labor inspectors and the prosecutor’s office to protect his interests. The contractor and the customer protect their rights through the court. Moreover, in both cases you need to prove violations, collect evidence and justify your position.

Is it possible to reclassify a GPC agreement into a labor agreement?

It should be noted that the replacement of labor relations with civil ones is expressly prohibited by law. There is administrative responsibility for this. In addition, if the Federal Tax Service of the Russian Federation finds out that a company or individual entrepreneur did not register employees, but entered into GPC agreements with them, then such an “unofficial” employer will have a lot of problems in connection with tax evasion. Therefore, the issue of recharacterizing one agreement into another must be approached as seriously as possible.

How to recognize a GPC as an employment contract? If you believe that your labor rights are being infringed, you can defend them. Moreover, this is quite possible to do even in cases where an official employment contract has not been concluded. The main thing is to act competently from a legal point of view, as well as consistently.

So, you need:

1. Take the GPC agreement and contact an experienced lawyer who can conduct a full legal analysis. The specialist will tell you what your prospects are to achieve your goal.
2. At the initial stage, you can study the contract yourself. To do this, pay attention to the vocabulary used. If the text of the agreement specifies maternity pay, vacation pay, sick leave, fines, disciplinary sanctions, work schedule, etc., then the likelihood that the court will regard this as an employment contract is very high.
3. If you are regularly paid a fixed salary, then it will be enough to obtain evidence of this fact.
4. Sometimes an employer grossly violates the rights of employees, forcing them to work on an equal basis with everyone else, to visit the office, but registering them only under a GPC agreement. In this case, you need to collect evidence that you have or had a dedicated workplace, that you obeyed the general schedule, etc. Video recording and witness testimony are most often sufficient.
5. A serious argument in favor of re-qualification is also the large number of GPC agreements concluded between the same persons. Regular performance of the same or similar tasks for the same remuneration is closer in nature to labor relations than to civil ones. It is quite easy to prove your position in such a situation: you only need to provide the court with a number of consecutively concluded contracts.
6. After preparing all the evidence, you need to write a statement of claim and go to court.
7. Don't forget to come to the meeting to defend your position. If there is enough evidence, the process will be quite fast.

Replacing labor relations with civil ones violates, first of all, the rights of the employee. Therefore, always study the text of the agreement, think not only about its form, but also about the content.

Summary

1. When a decision is made on cooperation, it is advisable to take into account the difference between an employment contract and a civil law agreement.
2. Ignorance of the difference between the contract leads to infringement of the rights of the citizen. A person is deprived of social guarantees provided by law.
3. Labor legislation gives specialists a more extensive social package.
4. A legal contract is regulated by the Civil Code of the Russian Federation and is signed to perform specific work.
5. The signs that an employment contract has show that it is signed for the systematic performance of duties.
6. When you know how one document differs from another, you can make the right decision - to enter into a deal or not.

Is it possible to conclude a GPC and an employment contract at the same time?

The same person can be in one case an employee of a specific enterprise, for example, and in the second - a contractor providing a certain service. In this case, it is quite possible to conclude several contracts with him at the same time. The legislation does not establish any prohibitions in this regard.

An employment contract and a GPC can be quite close on a number of points. However, they are regulated by different codes, and their essence is also different. Mixing the two types of agreements in practice leads to great confusion, problems with inspection authorities and serious fines. Be careful when concluding a contract.

Operating mode not for the performer

Consider the following situation. To conduct a study of consumer demand for a new type of product, a trial batch of which the organization purchased, it was decided to hire a separate employee. His responsibilities included conducting presentation conversations with the organization's clients (according to the list provided by the organization) and preparing lists of people interested in purchasing new products for the sales department. Since this work was clearly temporary in nature, it was decided not to make changes to the staffing table, but to hire an employee on the terms of a civil contract. They found a specialist quickly, concluded an agreement, the terms of which stipulated the contractor’s obligation to comply with the internal work schedule of the organization: working hours from 10.00 to 19.00, lunch break from 13.00 to 14.00, days off - Saturday, Sunday.

Such a condition in a contract is a gross mistake, which with almost one hundred percent probability will lead to the reclassification of the relationship as an employment relationship. The fact is that the requirement for working hours is one of the main qualifying features of labor relations (Article and Labor Code of the Russian Federation). And such relationships are formalized by an employment contract. Those employees who work under civil law contracts (for example, under a work contract) are not subject to requirements to comply with the organization’s operating hours: they are free to manage their time as they please. For them, the most important thing is not to show up at the office at a certain time, but to do certain work within the period specified in the contract and hand it over to the customer (Article 702 of the Civil Code of the Russian Federation).

Draw up and print an employment contract for free

A consequence of this rule is also that the contractor under a civil contract cannot have overtime work or work on weekends/holidays, as well as night shifts. For an accountant, this means that the contract with the contractor cannot include provisions for any additional payments for such “deviations” from the work schedule.

Finally, the fact that the contractor does not obey the work schedule of the organization that “hired” him means that the organization should not keep any records of time worked in relation to him. So check that your contractors do not appear in your Time Sheets and other personnel documentation.