The employer does not comply with the terms of the employment contract. Violation of labor legislation by the employer and ways to protect the rights of the employee

On purpose or because of illiteracy, the rights of employees may be violated by the employer. In this case, both and requirements are violated.

In Russia, the rights of workers are protected by judges, prosecutors and inspectors of the GIT.

According to the norm of Article 20 of the Labor Code, not only organizations (legal entities) can hire people to perform work, but also:

• entrepreneurs (including farmers, lawyers, notaries);
• ordinary people (individuals).

All employers are required to comply with the requirements of the Labor Code and comply with all its provisions, for example:

1. pay salaries twice a month (advance payment and settlement);
2. provide holidays for;
3. pay contributions to the PFR, FSS, medical insurance.

In practice, individuals in most cases do not formalize labor relations in any way, although in fact they have arisen. For example, a person has hired another as a household helper (housework, in a poultry house, in a vegetable garden). Regular payment is assigned for work: per month, per week or per day.

The absence of a signed employment contract is a gross violation on the part of an individual.

Yes, and in organizations sometimes people work in no way formalized. Along with the lack of a contract, there are other violations.

Types of violations

There are several most common types of violations of conditions.

Lack of TD or failure to issue a copy to the employee

A maximum of 3 days from the moment the employee began to perform duties, an employment contract must be concluded with him. At the same time, a copy must be issued to the employee against signature. The absence of a contract is a violation of the requirements of Article 67 of the Labor Code.

Mandatory inclusions not specified

Contrary to the requirements of Article 57 of the Labor Code, mandatory conditions are not included in the contract, for example:

• place of work is not indicated;
• the profession or position, suggesting, is not indicated in accordance with the list of Decree 787 (for example, instead of “electric and gas welder”, “welder” is indicated);
• the day of going to work is not registered (it is from the first working day that the countdown is carried out at this place of work);
• a specific amount of money paid monthly is not indicated (a reference is made to or to the regulation on remuneration, which is unacceptable);
• the work schedule is not prescribed (or there is no reference to the rules of the schedule in which the general schedule is fixed).

The contract specifies a term, although the nature of the work cannot be urgent. Some employers draw up with employees and re-sign them each time. Usually the minimum period is two months.

However, fixed-term contracts should be concluded only on the grounds provided for in Article 59 of the Labor Code, for example:

• seasonal work;
• employee ;
• the staff of the organization is less than 35 units.

Signed a civil law contract

If there is an employment relationship, it is forbidden to conclude contracts (Article 15 of the Labor Code). By signing an agreement of this type, employers relieve themselves of responsibility for providing guarantees prescribed in the Labor Code. That is, the employee is deprived of vacation, sick leave pay, part of pension savings, etc.

Breaking the deadline for paying salaries

Article 136 of the Labor Code stipulates that the contract must specify:

• place of payment of salary (and method: in cash through the cashier or by transfer to a card);
• specific day of advance payment and settlement.

Some employers refer only to the specified article (“salary is paid twice a month under Article 136 of the Labor Code”), without indicating specific numbers.

Illegal probation. According to the norm of Article 70 of the Labor Code, it is impossible to test:

• pregnant women;
• mothers of children under one and a half years old;
• first-time employed students or graduates of vocational schools (if a year has not passed since the graduation date);
• translated by ;
• conscripts (if the term of the contract is less than 2 months).

An employee doing someone else's work

Sometimes employers get employees to do work that is not spelled out in the contract or job description, violating the rules of Article 60 of the Labor Code. For example, a janitor is forced to work on loading. In this case, the employee may refuse to work, and his refusal may not entail disciplinary liability.

Timesheet not maintained

According to Article 91 of the Labor Code, the working time of each employee must be taken into account. Accounting is fixed in the time sheet. If there is no actual accounting, the employee runs the risk of receiving a salary that is less than specified in the contract, since the work is paid after the fact (how much he worked, he received so much).

At the same time, the report card reflects either an exit on a holiday or a non-working day. And in such cases, the payment for processing should be double.

The contract includes penalties.

Often, either in the contract or in the local act, the right of the employer of employees for violation of discipline (smoking on the spot, being late, talking on the phone, etc.) is prescribed. This is a direct violation of Article 137 of the Labor Code! The article lists all cases of deductions from wages:

• reimbursement of unused advance payment;
• return of erroneously charged money;
• return of paid vacation pay upon dismissal before the end of the working year (if the vacation is taken off in full).

May also be held:

• money on writ of execution;
• material harm.

Salary below minimum wage

Since July 2016, the minimum wage for the whole country cannot be less than 7,500 rubles. There are regional laws that establish the size of the minimum wage in the region. For example, in the Nizhny Novgorod region, the minimum wage is set at 7,800 rubles according to Decree No. 850/339 / A-636.

Sometimes a condition is written in the contract with the wording: "salary not lower than the minimum wage." This wording violates the norm of Article 57 of the Labor Code in terms of specifying the amount of salary (salary, bonuses and allowances) in the contract, because the employee must know what he is working for.

In this case, the minimum salary may be indicated, and according to the oral agreement, an additional amount is paid according to the statement.

In this scenario, the employee will not only not be able to challenge the amount of the salary if he receives what is actually prescribed in the contract, but he will also lose on sick leave payments and subsequent pensions.

Responsibility for violations

The employer may be held liable for violation of the terms of the contract or the law:

• administrative (according to articles of the Code of Administrative Offenses 5.27, 5.27.1, a fine of up to 200 thousand rubles);
• criminal (under articles of the Criminal Code 143, 145, 145.1 fines up to half a million rubles, arrest and imprisonment);
• civil (by a court decision, the employer must reimburse material and, perform certain actions: cancel the transfer).

Where to look for the truth?

If the rights of an employee are violated, he has the right to apply:

• to the commission on disputes (it is created in the organization from among the representatives of the administration and the staff);
• to the labor inspectorate (GIT is usually located on the territory of the local administration);
• to the prosecutor's office;
• to court.

The labor commission and the inspector of the State Labor Inspectorate, upon complaint, send instructions that employers can appeal in court. Orders have a deadline and requirements (to pay money, reinstate at work, etc.). However, no compensation for non-pecuniary damage is provided.

The prosecutor's office, upon complaint, can conduct an unscheduled documentary or on-site inspection and also issue an order to restore violated rights. In this case, the company or its head may be brought to administrative or criminal liability.

The judge within a month must consider the claim (no state duty is paid) and make a decision on satisfaction of the requirements stated in the employee's claim. In this case, it is possible to recover moral damages and court costs if a lawyer was involved in the case.

You can complain to any body of your choice, but the most effective is the court.

Labor legislation gave employees not only duties, but also rights. Observance of these rights largely depends on the behavior of the employer. If there are violations of labor laws by the employer, the employee must apply to the competent authorities to restore their rights.

What is a violation

The following can be recognized as a violation of the rights of an employee:

A responsibility

There are several types of liability for violation of labor law: disciplinary, administrative, civil and criminal.

• abuse by the employer of official authority, for example, forcing an employee to perform work that is not characteristic of his position, or working overtime;
• material discrimination of an employee (groundless imposition of fines, work on probation without pay, etc.);
• dismissal without reason;
• untimely remuneration (learn about the rights of an employee in case of delayed payment of wages);
• failure to provide social guarantees (denial of vacation, sick leave, etc.).

This list is not exhaustive; employers may also commit other violations of labor laws in relation to an employee.

What should an employee do in case of violation of his labor rights

Initially, you should try to resolve the issue directly with the employer. To do this, the employee can state his requirements or convey information about the violation of his labor rights to the head of the organization in which he works. This can be done by writing an appeal or a memorandum addressed to the employer, or seek help from the trade union organization.

The complaint to the employer must include:

• Name and position of the addressee;
• information about the sender, including contact information;
• a description of the situation in which, according to the employee, his labor rights were violated;
• a request for the elimination of violations;
• date and signature.

Violation of labor law: where to contact

If the issue cannot be resolved in the above way, the employee can seek protection in the following bodies.

Contacting the Labor Inspectorate

Citizens have several ways to file an appeal with the labor inspectorate:

1. personal submission to the reception of the labor inspectorate;
2. sending a complaint by mail;
3. filling out a special electronic form on the official website of the department.

1. Labor Inspectorate. Employees of the inspection have the right to come to the organization to verify the arguments set forth in the complaint of the employee. The competence of the labor inspectorate, in particular, includes issues of compliance with labor protection rules, personnel records management and other contentious issues between the employee and the employer, with the exception of the payment of wages.
2. Prosecutor's office. Prosecutors have much broader powers than the labor inspectorate and can initiate not only administrative, but also criminal proceedings against an employer who violates labor laws. An employee can independently choose where to apply in case of violation of labor laws, but the prosecutor's office, at its discretion, can send his complaint for consideration to the labor inspectorate.
3. Police. It is permissible to contact the police if there are signs of a crime in the actions of the employer, for example, he fraudulently took possession of the wages of employees, etc.
4. Court. A statement of claim may be filed with the court before applying to other bodies. In addition, there are situations, the resolution of which is in the exclusive competence of the court, for example, reinstatement at work. Employees who apply for the restoration of their violated labor rights are, as a rule, exempt from paying the state fee.

Find out where to contact in case of violation of labor laws in the following video

Complaint about violation of labor law by the employer

The law does not contain a strict form for drawing up such complaints, but certain information must be indicated in it:

• The name of the authority to which the complaint is directed;
• Information about the complainant: full name, address, contact phone number;
• Full name of the employer's organization where the violations occurred;
• Address of the organization, full name of the head and, if possible, TIN;
• The essence of the appeal: a detailed description of the violations, indicating the evidence supporting the applicant's words;
• Information about the consideration of a controversial issue within the organization;
• If a complaint is filed with law enforcement agencies, it is desirable to indicate the signs of what offense or crime are there in the actions of the employer;
• Date of writing the appeal;
• Signature.

Documents are attached to the complaint, indicating the presence of violations of labor legislation.

Note: a complaint filed by a group of employees of one enterprise (collective complaint) is more effective in terms of its consideration than an individual one. Collective complaints often lead to positive results.

It should be remembered that anonymous complaints may not be considered by state authorities. If the employee does not want his name to appear when checking for violations of labor laws by the employer, he can state this request in his complaint. When checking by the labor inspectorate, as a rule, it is possible to maintain the anonymity of the employee, but if it is filed either with the police, it is unlikely that it will be possible to keep your appeal secret.

Ask your question and get free legal advice

An employment contract is an official document that regulates the relationship that has arisen between an employee and an employer. As a rule, the contract covers the rights and obligations of the two parties. Violation of the established terms of the employment contract may entail material, disciplinary and even criminal liability. The approximate content of a standard employment contract is presented in article 57 of the Labor Code of the Russian Federation. The list of rights and obligations of the employee and the employer can be significantly expanded.

Violation of an employment contract by an employee

According to a specific employment contract, the hired employee undertakes to follow the established labor regulations. Termination of the employment contract may occur for non-compliance. For example, in the following cases:

• Repeatedly receiving disciplinary sanctions for existing reasons. This is discussed in the employment contract.
• An employee's refusal to perform prescribed duties in the workplace
• Significant violations of labor duties. This applies to regular absenteeism, disclosure of secrets, deliberate theft of other people's property.
• Amoral behavior
• Loss of confidence on the part of the employer. This may be caused by a violation of the established rules of the enterprise for working with monetary values.
• Providing false information during the procedure for concluding an employment contract between a hired employee and his direct employer.

Violation of the terms of the employment contract by the employer

The legislation of our state has not yet established an exact list of conditions under which an employee can terminate an employment contract with his employer. The list of possible violations is quite large. The employee has a lot of reasons for terminating the contract. The most common violations by the employer:

• The imposition of disciplinary sanctions for no apparent reason. This may relate to the performance of work that is not provided for by the current employment contract.
• Failure to pay wages for more than 2 months
• Violation of established working conditions
• Irregular working hours
• Refusal by the employer to provide the employee with paid leave
• Dismissing an employee without valid reasons
• Non-payment of compensation provided for by the employment contract.

In the relevant Art. 362 of the Labor Code of the Russian Federation presents types of liability for violation of the terms of an employment contract by the employer and employee. In disputable situations that may arise between the employer and the hired employee, it is recommended to consult with a labor lawyer. Qualified specialists sometimes solve significant problems and help workers return justice. After all, violation of an employment contract by an employer is not a rare occurrence in our difficult time.

Domestic labor legislation, no matter how strange it may seem, is one of the most stringent in the world in relation to employers. But as we know, it does not prevent the authorities from violating the rights of their employees everywhere. According to our research, the situation only worsened during the crisis, which was repeatedly mentioned in the labor inspectorate. In the capital alone, according to the report on the work of the GIT of the city of Moscow for the second half of 2016, 12,134 violations of labor rights were identified. It turns out that the economy is gradually recovering, but the situation with the legal protection of workers leaves much to be desired.

The imagination of employers knows no bounds: here you have questions of remuneration and compensation, and illegal dismissals, and even the introduction of systems of material sanctions, which, as you know, can only be applied by state bodies and in administrative or criminal proceedings. Careerist.ru has collected the TOP 8 most popular violations of labor laws by the employer, the victims of which can be almost anyone. Remember, if your superiors act in this way, it is hardly worth going on about them - seek help from the GIT, the prosecutor's office or the court!

1. Delayed wages, non-payment of compensation and non-payment of overtime

Financial issues are one of the most sensitive topics in any organization, especially a private one. No wonder this topic was dedicated. Workers are often left unpaid, denied compensation for unused vacation or education, and forced to work overtime, withholding pay for overtime. Such violations, according to labor market analysts, are faced by every fifth worker..

It even happens that workers are confronted with the fact that wages have been reduced. And only a few are outraged - the majority do not want to lose their jobs, so they silently put up with this state of affairs. In fact, such a situation is a unilateral change in the employment contract, which is an unacceptable violation. And here, as in other situations related to the payment of amounts due, there is only one way out - contacting law enforcement agencies - the GIT and the prosecutor's office, with a further refusal to perform labor functions, in accordance with Art. 142 TK.

2. "I'll fire you under the article!"

For a long time now, no one has been surprised by cases when people are “thrown out” into the street without severance pay, setting the condition: “Either you leave yourself, or we fire you under the article.” Psychological pressure, threats, financial sanctions are not the only tools involved in this process. Many manage to break - no one wants to have a negative entry in the work book. They leave "on their own", although in fact there is a reduction in staff. And the reduction, as you know, is carried out with a notice 2 months in advance, which ultimately provides the employee with the opportunity to receive 5 salaries (2 before the reduction + 1 severance pay + 2 salaries until further employment). So if you are persuaded to dismiss "" or "on your own", demand compensation in the amount of 2-3 salaries. And do not be afraid of dismissal “under the article” - for this you need to have disciplinary offenses, be guilty of embezzlement or not correspond to your position. In cases not specified in Art. 81 of the Labor Code, it is impossible to dismiss an employee “under the article”.

3. Salary in envelopes

No matter what anyone says, but the salary (or part of it) in envelopes primarily hits the workers themselves. Firstly, the part that is paid unofficially is not standardized and can be completely forgotten about. Secondly, gray and black schemes allow the employer to save on social contributions, which deprives the employee of well-deserved pension rights. Thirdly, it is almost impossible to prove the existence of an unofficial salary in the event of a conflict. But this does not stop the Russians at all - about 30% of the economically active population is already involved in the gray market, and about 60% are ready to join it if this leads to an increase in their labor income.

Envelope schemes are perceived as a violation of their own labor rights by only 12% of workers, but only a few are ready to write complaints and fight for the color of their salary. It is understandable - there is a threat to be left without work at all, which employers successfully use.

4. Overtime

The Labor Code requires each employer to establish the length of working hours for each employee, except in cases of irregular working hours. Article 97 of the Labor Code does not prohibit the involvement of workers beyond this time, but the legislation interprets this as overtime work, the involvement of which, according to Art. 99 of the Labor Code, is possible only with the written consent of the employee and only in cases regulated by law. Engagement without consent is possible only in exceptional cases, such as eliminating the consequences of a natural disaster or working under martial law. What happens in practice? As a rule, the law is the will of the boss, according to which "you will work as much as necessary." Naturally, we are not talking about any additional payments. But only 7% of workers "risk" calling such behavior of employers a violation. Sometimes despotic manifestations even affect pregnant women, disabled people and representatives of other privileged categories, whose involvement in overtime work is generally prohibited or limited by Article 99 of the Labor Code.

5. Vacation and sick leave "at your own expense"

We often hear from workers that vacation and sick leave are an unaffordable luxury. Why? It's just that some employers choose not to pay them. Such a corporate rule, vacation and sick leave - "at your own expense"! Such violations are found in private firms, as a rule, in relation to unregistered employees. But not all representatives of the shadow economy are so "impudent" - for many of them, the right of workers to leave is unshakable. With hospitals, the situation is different - employers need strong, eternally healthy employees, so even those who hire employees officially do not intend to pay for the time they are sick.

It may be that the authorities pay only part of the sick leave, for example, the first 3 days, which is still better, but also violates Art. 183 TK. How to deal with it? Obviously, you can’t do without contacting the GIT, but only when you are officially employed, otherwise you simply don’t have the right to sick leave.

6. Age (gender, ethnic, etc.) discrimination

Many people have to face discrimination in employment - some are not hired due to the fact that you are, they say, a woman. Others are not satisfied with the nationality of the candidates - you are, they say, non-Russian. But age discrimination is most common, and the majority of Russians who are looking for work at the age of 50+ become its victims. Strange but experience in such situations is rarely a measure of productivity and professionalism for employers. Youth is one of the main criteria in the selection of personnel, and sometimes it is even stated in vacancy announcements. And they pay for it, since the prohibition of discrimination in the field of labor is enshrined in Art. 3 of the Labor Code and is even prosecuted by the supervisory authorities - the GIT annually issues hundreds of fines against employers who have posted such vacancies. But not for those who discriminate in an interview. Rejected applicants do not require a written refusal of employment, and otherwise it will not be possible to prove discrimination.

7. Violation of the test procedure

A trial period is not uncommon for many domestic companies. It is used by almost all private firms that want to test a newly minted employee "for strength". But in their opinion, the test procedure is a kind of grace period during which a new member of the team is considered an inferior worker. He can be paid 30 or even 50% less, he can be fired whenever he wants and for a far-fetched reason, he can be loaded with work until midnight, and at the same time, such a period can last as long as the boss decides. In fact, all this is a delusion - according to Art. 70 of the Labor Code, during the test, the same norms of labor legislation apply as after it.

Moreover, in general cases, its period cannot exceed 3 months. So if at the interview you are offered a cut salary for a trial period, your rights are violated. What to expect from such an employer in the future, one can only guess.

8. Fines and other pecuniary penalties

Many have faced the presence of financial penalties for minor disciplinary offenses, failure to fulfill the sales plan, not preparing the annual report on time, or simply for non-compliance with the dress code. It is believed that this is in the order of things - the employer sets the rules, and he also sets the punishment for their violation. But how legal is it? In fact, the introduction of any fine, salary cuts and other financial sanctions against an employee for any violations are illegal - material penalties can only apply to bonuses(in particular, not providing it). The very nature of a fine as an administrative sanction has nothing to do with disciplinary sanctions that can be applied to employees under the law, so the financial sanctions of the employer are clearly illegal.

And what violations did readers of the portal have to face?

A few years ago, I had no idea where to turn if an employer violates the rights of an employee. It always seemed that I could do without such complaints and appeals, but it did not work out. Last year, I worked as an accountant in a company.

Once the director called me and demanded to sign an act on the write-off of material assets. The fact is that the company was engaged in the provision of veterinary services, and the act dealt with the destruction of vaccines and drugs that I had never seen before.

It seems that there was nothing of the kind in this requirement, but I knew that these funds should be disposed of only under a special act and in the presence of witnesses. After my refusal, the head began to threaten with dismissal, as a result of which, I filed a complaint against the employer with the prosecutor's office.

What actions on the part of the employer and in relation to the employee can be regarded as offenses

To begin with, I will briefly talk about possible violations of the rights of workers, described in more detail in Art. 21.22 of the Labor Code of the Russian Federation. It should be noted that violations by the employee involve the application of disciplinary measures.

For employers, everything is somewhat different and an official or manager can be held liable under an administrative and even criminal article. The grounds for filing a complaint against the actions of the employer, you can specify the following points:

• imposing an obligation on an employee to perform work that is not listed in the employment agreement or is not confirmed by additional documentation;
• delay in payment of earnings or underpayment in amount;
• employment conditions do not meet the requirements of TB;
• the norms of labor activity established by law are violated;
• lack of vacation or days off;
• failure to provide social guarantees and mandatory payments;
• dismissal, transfer or reprimand without reason;
• other violations of the provisions of the Labor Code of the Russian Federation.

In addition to the above points, the reason for filing a complaint may even be an unlawful refusal to hire or a lack of calculation due upon dismissal.

Where are employer complaints filed?

The employee has the right to complain about the employer at the slightest violation of his interests. In large companies, trade unions are created for this purpose, and sometimes labor dispute commissions. These bodies are called upon to protect the rights of workers.

The Commission on the Customs Union is directly considering the appeals of employees, therefore, the first instance for filing a complaint is precisely the body within the enterprise, if any.

In the absence of these bodies or if the appeal did not give the desired result, the citizen has no choice but to draw up and send a complaint to the appropriate department. Today, employees have the following options for filing a complaint:

• to the labor inspection under Rostrud;
• to the prosecutor's office;
• to the judicial authority.

The essential point is that it is practically impossible to file a complaint anonymously. More precisely, no action will be taken on an anonymous appeal, since we can talk about slander.

The only way is to apply online on the Rostrud portal, but you still have to indicate personal data, although in the future they will be carefully encrypted.

Peculiarities of applying to different departments

Each option for filing a complaint has its own nuances and some important characteristics. Let's start with the labor inspection. This department is contacted by workers in respect of whom labor standards and regulations have been violated.

Usually, in this instance, situations are considered with non-observance of the rights to leave and days off, with processing or with failure to provide the necessary documentation.

The complaint is drawn up in writing and transferred to the employee of the organization against signature. Upon application, an inspection is scheduled and a final decision is made.

Appeal to the prosecutor's office implies a violation of any rights, including the receipt of threats. Here, the employee is guaranteed anonymity, and the violator can be prosecuted. A complaint to the court is a solution to an issue related to the infliction of material and moral damage. Basically, we are talking about non-payment of wages.

What are the nuances to consider when filing a complaint

Regardless of where the appeal will be directed, booms should be compiled as competently as possible. In addition to the applicant and the recipient, the document will need to state what, in the opinion of the employee, the violation of the rights of the employer is expressed. The best option would be a link to the articles of the labor code.

All facts given in the document must be documented. The complaint must be accompanied by explanatory papers, photographs, and other evidence of the correctness of the employee.

It is quite possible to draw up a document on your own, using existing samples. If the injured person has doubts about their capabilities, then it is worth seeking help from an experienced lawyer.

Conclusion

If the rights and interests of the employee are violated by the employer, then one should not aggravate the situation and wait until everything settles down by itself. You should study all the provisions of the Labor Code of the Russian Federation on this issue and file a complaint with the internal commission body or file a complaint with the appropriate regulatory agency.