Legislative basis
Despite inspections by the Labor Inspectorate, there are still many violations of the rights of working citizens: refusals to formalize labor relations, delays in the payment of amounts due, unofficial payments.
The Labor Code in Article 67 prescribes that an employment contract should be considered concluded even if the document was not signed by the parties, but the employee performs the prescribed duties. Employers often misinterpret this provision by not entering into a contract at all.
Refusal to formalize labor relations may result in criminal liability for the manager under Article 199.1 of the Criminal Code of the Russian Federation.
Liability is also provided for by the norms of administrative law. The corresponding provision is contained in Article 5.27 of the Code of Administrative Offenses of the Russian Federation. The law allows such an act to be punished with a fine, suspension of work or imprisonment (in special cases) for up to 2 years.
How to get money if you worked without an employment contract
Financial liability of the employer for delay in payment of wages and other payments due to the employee If the employer violates the established deadline for payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation ) in an amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time from amounts not paid on time for each day of delay starting from the next day after the established payment deadline up to and including the day of actual settlement.
If an agreement cannot be reached, then the Employee can submit Applications (2 copies each) to the State Labor Inspectorate, the Federal Tax Service Inspectorate (tax), the Prosecutor's Office, but it is better to go straight to the District Court (not subject to state duty) with a Statement of Claim (3 copies), from The Prosecutor's Office and the State Labor Inspectorate are usually of little use.
For information: Article 16 of the Labor Code of the Russian Federation. Grounds for the emergence of labor relations Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with this Code.
What to do if unofficial wages are not paid
Even if an employment contract was not drawn up, or it contains a smaller salary amount, it is possible to prove the actual state of affairs. If there is no contract, the employee must find other evidence of their existence. He will have to do this work independently, and perhaps involve government agencies. All evidence must be collected before filing a claim in court.
Lack of proper preparation may lead to the postponement of consideration of the case or even denial of the claim.
Note! The law limits the period for going to court for disputes of this category to 1 year, so it is important not to waste time, but to select the necessary documents.
Where to contact
Specially authorized government bodies protect the rights of working citizens, even if the employer has not properly formalized the hiring process, so those affected by the employer’s illegal actions should not hesitate to contact the appropriate authorities.
All requests from employees are considered on their merits, regardless of the documents attached to them.
Note! The legislator has vested the following bodies with the rights to consider such appeals:
- divisions of the State Labor Inspectorate;
- tax authorities;
- Prosecutor's Office;
- court.
The algorithm for protecting the rights of an employee in the event of non-payment of wages in the absence of a formalized contract is as follows:
- prove the actual performance of labor duties;
- calculate the average cost of working time or stage of work;
- take into account the amounts paid;
- make a decision regarding this situation.
How to prove debt if there is no employment contract
If the plaintiff managed to prove the existence of an employment relationship with the organization, then further proof becomes the task of the defendant. We will talk about the amounts due to the employee and the liability applied for their delay.
If the defendant proves that the citizen did not fulfill his labor duties, then the claims must be substantiated by the plaintiff. The same rule applies in cases where we are talking about an officially reduced salary.
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The cases listed above are conditional. The law does not contain an exact criterion for the rightness or wrongness of the parties. However, the court always bases its decision on the evidence. The more supporting documents, the more significant the party’s position.
Please note! According to judicial practice, in such cases the following are taken into account as evidence:
- eyewitness testimony;
- documentary evidence;
- audio recordings of negotiations and video recordings;
- data from publicly available sources.
Each type of evidence deserves separate consideration.
Witness's testimonies
As a rule, if an organization has identified a case of payment of “salaries in an envelope,” then it is not an isolated case. A number of employees usually suffer from this type of violation. In court, their testimony turns out to be very important.
Also, other persons not related to this organization may be involved as witnesses. For example, these could be employees of the counterparty, employees of a nearby office. Workers in related fields can act as a person capable of confirming the performance of official duties by a person: a janitor, a cleaner, etc.
As practice shows, employees of the same company who continue to work rarely want to take legal action against the employer, so it is better to find an independent third party.
Documentary evidence
All work-related documents should be retained. These can be invoices, acts, waybills, etc.
The most advantageous option is to obtain documents that indicate the salary amount: statements, calculation sheets, time sheets and other payment documents.
Usually you can't get them on your own. But they are requested by official bodies, which citizens are advised to contact before filing a claim.
Audio recording materials and video filming
Such evidence is not always taken into account, but only if the court considers it possible to attach it to the case.
Important! For material to qualify as evidence, it must conform to a specific format:
- the entry must include a third party. It is advisable for this person to conduct the conversation with the employer. The presence of a disinterested person is important;
- the record must relate specifically to this employee and his work activity. Failure to provide such clarification may result in the defendant objecting to the subject matter of the recorded conversation or situation.
Information from publicly available sources
Here we are talking about data posted on the Internet or the media. For example, by studying job advertisements in a company, it is possible to determine the approximate salary of an unregistered employee.
Also, to consider the issue of wages, data from statistical bodies or associations of industry workers regarding the average wage in this area may be taken into account. It is also important to take into account the region for which the calculation is being made.
Where can I go?
After receiving a claim about unpaid wages from an employee, the employer is obliged to respond to it and take action to resolve the conflict situation. However, not all managers respond to employee complaints, much less fulfill their demands. If a response has not been received or the applicant is not satisfied with it, the applicant should send a letter to the regulatory authorities.
The first authority that can help if wages are not paid without an employment contract is the labor inspectorate . There are branches in every city: you can contact a department employee directly or write an electronic complaint on the inspection website. But what if you don’t have an employment contract?
Expert opinion
Novikov Oleg Tarasovich
Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.
This means that even an unofficial employee has the opportunity to file a complaint about unpaid wages, providing government agencies with evidence of the actual performance of their duties. For example, the following can prove the fact of employment :
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- Pay slips, accounting extracts, letters from the company to the employee.
- Working documents containing the employee’s details (invoices, invoices, statements).
- Response to a previously filed claim for unpaid wages.
If none of the specified papers is available, then witnesses can prove the fact of work activity: the employee can attract two people who can confirm that the employee was indeed unofficially employed.
In the same way you can contact the prosecutor's office if the labor inspectorate could not find violations on the part of the employer. By the way, this government agency is more effective, since law enforcement agencies have more powers. The application to the prosecutor's office is also submitted along with documents proving the fact of employment.
Appeal to a judicial authority
Legal norms do not contain an exact sample of a complaint in such cases. However, taking into account the general rules of business correspondence with official authorities, the document should be drawn up like this.
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In the initial part you need to indicate the details of the addressee and the applicant himself. The government body must be named as indicated in its registration documents. For example, “State Labor Inspectorate of Krasnodar”.
Unfortunately, sometimes seeking out-of-court protection of rights does not produce results. What to do in this case? Is it worth filing a lawsuit if there is no employment contract? Many citizens consider this a losing cause, but this is not the case.
Judicial review requires the citizen to take the following actions:
- file a claim;
- collect all possible documents confirming the existence of an employment relationship and non-payment of wages;
- obtain a court decision.
The court's decision is binding. If, even if it exists, the organization does not pay the employee the amounts due, bailiffs begin to enforce the decision.
Let's go to court
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We will tell you everything as concisely and concisely as possible, so that it is clear how, where, to whom, and what kind of claim to file. You can file a claim within a period of one year from the date of missed salary payment. State duty is not paid. There is no mandatory pre-trial procedure.
Let's start with the claims. The main requirement is to establish the fact of labor relations. This is the most important thing; without establishing this fact, you were not required to pay your salary.
Additional requirements:
- the obligation to conclude an employment contract.
- about the obligation to make an entry in the work book.
- on the collection of wages.
- on the collection of payment for sick leave.
- to collect compensation for unused vacation.
- to declare the dismissal illegal.
- the obligation to conclude an employment contract.
The defendant will be the person who was your employer. The claim is filed at the location of the organization or at the location of the organization.
The data contained in the claim can be studied by downloading its sample in the “Documents and Forms” section at the beginning of the article.
Review period
Note! The law requires that the circumstances specified in the complaint be verified and a response be provided within 30 days. If there are special reasons, this period may be extended for another period of time. The complainant must be notified of the extension of the period for consideration of the complaint.
The written response is sent to the address indicated by the applicant in the appeal. For emails, this is the email address; for regular letters, this is the citizen’s postal address. If the address was not specified, the complaint remains without consideration, as it is considered anonymous.
The court decision must be executed no later than 1 month. If this period has expired and the employee has still not received the amounts due to him, the writ of execution can be handed over to the bailiffs. Next, in the course of enforcement proceedings, information about the company’s accounts will be requested from the tax authority, and they will be seized. The arrest will last until the debt is repaid by the court decision.
If the employee knows in which bank the debtor has an account, he can submit the writ of execution directly there. Then the credit institution will transfer the amount within 3 days from the moment it appears in the account. If such information is unknown, or the debtor has several accounts in different banks, it is better not to risk it and transfer the case to bailiffs.
What to do if the employer does not pay wages and there is no contract?
But, before contacting the tax authority, the employee must take into account that by agreeing to work unofficially, he himself is breaking the law and evading taxes - and therefore he can also be held accountable. In order to avoid penalties, the employee can pay the taxes due on his own. Amount of wages The most difficult thing to prove in unofficial employment is not the very fact of the existence of an employment relationship between the parties, but the level of wages - after all, unofficial wages are mainly issued in an envelope.
In this case, the employee will need to provide receipts or other documents that can confirm the level of wages. In the absence of such evidence, even having established the fact of an employment relationship, collecting the debt from the employer will be very difficult, but, most often, impossible.
What documents will be required
If the employee was not officially hired, it is possible to recover wages, but this is a complex and lengthy process. Usually the case requires judicial review.
To collect wages in such cases, a number of documents are required:
- a correctly drawn up statement of claim;
- a copy of the employment document (order), if any;
- calculation of wages unpaid by the employer;
- calculation of compensation amounts;
- documents confirming the existence of an employment relationship between the parties. These include eyewitness testimony, official documents signed by a citizen, printouts of work negotiations, documents on official expenses, etc.
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Once again, please note that there is no fee for filing claims in this category. The law imposes legal costs on the employer.
When going to court, it is important to do so within the time limit established by law. It is equal to 1 year. A missed deadline for filing a lawsuit may be reinstated. This is permitted if there was an objective, noteworthy reason for the omission. If the court considers the reason to be insignificant, then the claim will not be considered. This means that the only way to recover the amount of wages is to contact the Labor Inspectorate.
Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.
What to do if the employer does not pay wages and there is no contract
Expert opinion
Novikov Oleg Tarasovich
Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.
Now there is active propaganda of the need to choose an organization with “white” wages. However, there are still employers who refuse employees partial registration, when the salary is divided into the official and managerial part.
Also, a significant part of people agree to receive their salaries completely unofficially and remain socially unprotected. Sometimes employees are faced with a situation of non-payment of monetary remuneration and the question arises: what to do. Let's try to figure it out and, if possible, give advice.
