Is it necessary to sign an employment contract? Is an employment contract mandatory - what you need to know? An employment contract does not have to be in writing

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The employer is obliged to labor contract in writing with each person hired.

All contracts are concluded in compliance with all mandatory details and conditions provided for in Article 57 of the Labor Code of the Russian Federation (discussed in section 1.1. of this book), and are certified by the signatures of the parties.

The conclusion of an employment contract provides for the following procedure for its execution:

1) the employment contract is concluded in writing;

2) is drawn up in two copies, each of which is signed by the parties;

3) one copy of the employment contract is transferred to the employee, the other is kept by the employer.

Moreover, the receipt by the employee of a copy of the employment contract must be confirmed by the signature of the employee on a copy of the employment contract kept by the employer.

On the part of the employer, the employment contract is signed by the employer himself or by the person exercising the rights and obligations of the employer in labor relations. The right to sign employment contracts for persons exercising the rights and obligations of the employer in labor relations should be included in the scope of their competence by the relevant local regulations, employment contract, job description etc.

In all cases, the employer is responsible for the proper implementation of the procedure for concluding an employment contract. In case of violation of the established Labor Code of the Russian Federation and other federal laws mandatory rules when concluding an employment contract, if this violation excludes the possibility of continuing work, the employment contract is subject to termination under paragraph 11 of Article 77 of the Labor Code of the Russian Federation.

"Labor contract, not executed in writing, is considered concluded if the employee started work with the knowledge or on behalf of the employer or his representative. When the employee is actually admitted to work the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date of the actual admission of the employee to work. (Article 67 of the Labor Code of the Russian Federation).

After the conclusion of an employment contract, a citizen becomes an employee, and an organization represented by the administration becomes an employer, in addition, an individual can also act as an employer.

An employment contract is the basis for issuing an order (instruction) of the employer on employment. At the same time, the order (instruction) on hiring does not replace the employment contract, but is an internal administrative document issued by the employer unilaterally.

The order (instruction) of the employer on employment is announced to the employee against signature within three days from the date of the actual start of work. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).

The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract. When issuing an order, the name of the structural unit, position, probation(in the event that a test is established for the employee when hiring), as well as the conditions for hiring and the nature of the upcoming work (in the order of transfer from another employer, part-time, to replace a temporarily absent employee, to perform certain work, etc.).

Documentation of labor relations when hiring an employee is not limited to drawing up an employment contract and issuing an order (instruction).

On the basis of an order (instruction) in work book an entry is made - the basis for hiring, corresponding to the information specified in the order.

The conclusion of an employment contract is a prerequisite for hiring an employee. It regulates the relationship between the two sides of labor relations: the employee and the employer. The Labor Code of the Russian Federation fully regulates the preparation and signing of this document.

General procedure for concluding an employment contract

An employment contract is signed after the employee and employer reach an agreement on working conditions. Usually, each employer has its own approved contract form, in which the necessary information is entered.

Before signing the contract, the employee must be familiarized with all local regulatory documents related to his work.

The agreement will enter into force only after the appearance of both signatures.

The procedure for signing the contract is not established, so there is no difference who signs first, the employee or the employer.

The contract is drawn up in writing, in two copies, which have the same legal force. One copy remains with the employer, the other is handed to the employee, it is advisable to do this against a signature.

The actual admission of a person to work is equivalent to signing an employment contract, but does not relieve the employer of the obligation to draw up a contract in writing.

The procedure, conditions and terms for concluding an employment contract

The conclusion of an employment contract must take into account the rules provided for by the Labor Code of the Russian Federation.

Timing

There are no specific terms for the conclusion of the contract in the legislation. Usually it is signed on the first day when the employee begins to perform his duties. But it can be drawn up and signed before this date.

The only limitation that the legislation makes is the term for the actual signing of the contract if the employee was allowed to work earlier. The employer is obliged to sign a contract with such an employee no later than three days later.

Foundations

Usually the basis for concluding an employment contract is. But usually this is preceded by an oral agreement between the employee and the employer on employment.

Also, other documents, for example, a resolution on election to a position, can serve as the basis.

In the Labor Code of the Russian Federation, there is no indication that the conclusion of an employment contract should be preceded by any other document. The very fact of signing the contract by both parties indicates that the employer accepted the employee, who, in turn, agreed to perform work on the established conditions.

Conditions

Contains a list of working conditions that must be reflected in the employment contract.

Read also: Collective labor contract: concept and procedure for concluding

Mandatory conditions:

Place of work, if its actual address differs from the legal one, then its indication is mandatory.
The date when the employee starts work and the date the contract ends (only if it is urgent).
Schedule. Article 57 says that it is indicated only if it is established for the employee, but it is better to include it in the text of the contract in any case.
labor function. This is the main condition, it determines what kind of work the employee must perform and it will be illegal to demand another from him. Another nuance is that the Labor Code of the Russian Federation does not require you to indicate exactly the position, you can only make a record of the labor function.
Accrual procedure wages. It is better to describe this information in detail in the employment contract, and not to make a reference to the Regulation on remuneration.
Working conditions according to the results of certification.
Other prerequisites: nature of work, availability harmful conditions and compensation for them, etc.

In addition, the employment contract can include other conditions permitted by the RF Labor Code (additional insurance, etc.), or established by the employer, but on condition that they do not worsen the position of the employee.

Peculiarities

An employment contract may have the following features:

Be the main contract or . Moreover, part-time work can be both external and internal.

All these conditions must be specified in the contract without fail.

Documents to be presented at the conclusion of an employment contract

The documents that the employer has the right to require from the employee are listed in article 65 of the Labor Code of the Russian Federation. These include:

Passport or other proof of identity.
SNILS, if an employee enters work for the first time, the obligation to issue it lies with the employer.
Military ID, for persons who belong to the category of persons liable for military service.
A diploma or other document confirming the availability of special skills, provided that they are required to perform the job.
Other documents confirming the employee's ability to work in the position (certificate of no criminal record, disqualification, medical report, etc.).
Employment record, if available. If it is lost or the employee is employed for the first time, the employer draws it up.

Of all the listed documents, only data from the passport is transferred to the employment contract, but nevertheless, the employer may refuse to conclude an agreement with the employee (that is, not hire him) if he does not have other necessary documents.

Demand separate documents possible, if necessary. For example, you cannot require a medical certificate from an employee whose position does not require a medical certificate or a diploma of economic education for a cleaner.

Documents drawn up at the conclusion of an employment contract

When a person is hired, they draw up not only an employment contract, but also several other documents.

Read also: Conclusion of an employment contract with an individual entrepreneur in 2020

Order

On the basis of a signed employment contract, an order for employment is drawn up. Usually used for this unified form T-1.

On the basis of the order, an entry is made in the work book and the T-2 card. A copy of the order is sent to the accounting department and other departments (to the immediate supervisor of the employee, timekeeper, etc.).

Notification

The notification is drawn up if a foreigner is hired. This is a document of the established form, by which the employer informs the migration service, within the period established by law.

Reconclusion

There is no such thing as a renegotiation in the Labor Code of the Russian Federation. It can be used in the following case: the law says that if there is no mandatory information in the signed contract, then they must be included directly in the text of the contract. How to do this is not said, so many employers simply renew the contract. But there are those who enter the missing information by hand.

Mandatory information includes:

full name of the employer and his representative;
full name of the employee;
place and date of compilation;
data of the employee's passport;

Usually this information is supplemented by the address of registration and the date of birth of the employee.

What can not be a reason for refusal to conclude an employment contract?

The conclusion and content of an employment contract should not depend on race, religion, gender, place of residence and other conditions that may be discriminatory.

It is also impossible to refuse to hire a woman because of pregnancy or the presence of children.

What to do in case of refusal to conclude an employment contract?

If the employer refuses to conclude the contract, then the person may require that the reasons for the refusal be stated in writing.

The employer is obliged to provide such a document within 7 days.

If there is reason that these reasons are illegal, then the refusal can be appealed in court.

Is it possible to conclude an employment contract in advance

The Labor Code of the Russian Federation does not prohibit concluding employment contracts in advance, for example, if an employee is still working for another employer, you can conclude an employment contract in which you indicate the start date of work after the dismissal. Such an agreement serves as a guarantee of new employment for the employee.

Should an employment contract be concluded with an employee who was hired at a time when employment contracts were not yet introduced? If yes, then a fixed-term or indefinite employment contract is concluded with a retired employee

Answer:

The obligation to conclude an employment contract in writing was introduced by the Law of the Russian Federation of September 25, 1992 N 3543-I “On Amendments and Additions to the Code of Labor Laws of the RSFSR” (clause 15, article 1), which fixed such a requirement in art. 18 Labor Code of the RSFSR. Then the requirement for the mandatory conclusion of an employment contract in writing was established in the Labor Code of the Russian Federation. Labor relations of persons hired before the entry into force of the Law of the Russian Federation of September 25, 1992 N 3543-I (06.10.1992), with the consent of such persons, could be drawn up in writing. This was indicated by the Ministry of Labor of the Russian Federation in the Recommendations for the conclusion of an employment contract (contract) in writing, approved by the Decree of the Ministry of Labor of the Russian Federation of July 14, 1993 N 135 (order of the Ministry of Health and social development RF dated November 24, 2008 N 665, this resolution was recognized as invalid from December 1, 2008). Thus, the employer did not have to draw up in writing employment contracts with employees hired before 6 October 1992.

Employees hired from 6 October 1992 were required to enter into written contracts of employment. However, before the implementation Labor Code RF, if the employment contract was not executed in writing, but the employee was actually allowed to work, the employment contract was considered concluded in any case (part three of article 18 of the Labor Code of the RSFSR). This wording allowed employers not to conclude employment contracts in writing with employees actually admitted to work. After the entry into force of the Labor Code of the Russian Federation (since February 1, 2002), the employer is obliged to conclude employment contracts with employees in writing. The provisions of Art. 67 of the Labor Code of the Russian Federation establishes the obligation of the employer, when the employee is actually admitted to work, to draw up an employment contract with him in writing no later than three working days from the date the employee is actually admitted to work.

At the same time, the Labor Code of the Russian Federation does not contain provisions obliging to conclude employment contracts in writing with employees hired before its entry into force. Furthermore, in accordance with Art. 424 of the Labor Code of the Russian Federation, the provisions of the norms of the Labor Code of the Russian Federation apply to legal relations that arose after its entry into force. The same rule establishes that if legal relations arose before the entry into force of the Labor Code of the Russian Federation, then it applies only to those rights and obligations that arise after its entry into force. In other words, the provisions of the Labor Code of the Russian Federation do not have retroactive effect.

Thus, with employees who were hired back in the period of the Labor Code of the Russian Federation, the execution of an employment contract in writing is not mandatory and is possible only with their written consent. With the same employees who were hired after February 1, 2002, the employer is obliged to conclude employment contracts in writing.

Labor legislation does not establish a special procedure for concluding employment contracts in a situation where an employee hired before February 1, 2002 expressed his consent in writing to conclude an employment contract in writing. Also, the Labor Code of the Russian Federation does not contain any special requirements regarding the procedure for concluding an employment contract in the event that the employer, within three working days from the date of the actual admission to work of an employee hired after February 1, 2002, did not conclude an employment contract with him in writing. In our opinion, in both situations, when concluding an employment contract, the employer must be guided by the general norms of chapters 10-11 of the Labor Code of the Russian Federation. Thus, the employment contract must contain all the conditions that are mandatory for inclusion in the employment contract, established by Art. 57 of the Labor Code of the Russian Federation. According to the first part of Art. 57 of the Labor Code of the Russian Federation, the employment contract indicates, in particular, the place and date of the conclusion of the employment contract. In addition, in accordance with the second part of Art. 57 of the Labor Code of the Russian Federation, as one of the mandatory conditions in the employment contract, it is necessary to indicate the date of commencement of work. In this case, the date of conclusion of the employment contract must correspond to the actual date of its conclusion, and the date of commencement of work - the actual date of commencement of work in accordance with the order for employment.

According to paragraph 2 of the second part of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract may be concluded with retirees entering work by age, by agreement of the parties. From this rule it follows that, by agreement of the parties, a fixed-term employment contract can be concluded with an employee only if he is a pensioner at the time of employment. In the situation under consideration, the employee became a pensioner while working for this employer: after all, despite the fact that the employment contract with him (possibly) will be drawn up in writing only now, he was hired much earlier. Thus, the current labor legislation of the Russian Federation (unlike the previous (until 01.10.2006) edition of paragraph 14 of Article 59 of the Labor Code of the Russian Federation) does not give the employer the right to change the employment contract concluded with the employee for an indefinite period (although not executed in writing ), for a fixed-term employment contract in connection with the achievement of retirement age by this employee and the assignment of a pension to him.

Since an exact answer is needed, then in order to avoid misunderstandings, I quote the relevant quotes as an answer to your question: "Article 68 of the Labor Code of the Russian Federation. Employment
Employment is formalized by the order (instruction) of the employer, issued on the basis of the concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.
The order (instruction) of the employer on employment is announced to the employee against signature within three days from the date of the actual start of work. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).
When hiring (before signing an employment contract), the employer is obliged to familiarize the employee against signature with the internal labor regulations, other local regulations directly related to the employee’s labor activity, collective agreement
Article 56. The concept of an employment contract. Parties to the employment contract
An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing norms labor law, the collective agreement, agreements, local regulations and this agreement, pay wages to the employee in a timely manner and in full, and the employee undertakes to personally perform the labor function defined by this agreement, to comply with the internal labor regulations applicable to this employer.
Article 63
...unreasonable refusal to conclude an employment contract is prohibited.
Any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, social and official status, age, place of residence (including including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to business qualities employees, is not allowed, except in cases provided for by federal law.
It is forbidden to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children.
It is forbidden to refuse to conclude an employment contract for employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work.
At the request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing.
Refusal to conclude an employment contract may be appealed to the court.
I think this will help you.

An employment contract is a document that contains information and conditions. Information is information about the parties concluding an agreement, conditions - the rights, obligations of those between whom this agreement is concluded. This agreement is drawn up in several copies, in writing.

Employment contract: mandatory or not

Is an employment contract required? In cases where it is important for an employee to have a length of service, its continuity, in order to determine the amount of a subsequent pension, an employment contract is mandatory. An employment contract is a certain guarantee for the employee and the employer. At the conclusion of this agreement between individuals, the employee submits his work book at the place of work, the employer. Except, of course, those cases when he is a part-time worker.

The advantages of an employment contract over other types of contracts for the provision of certain services or work.

The conditions described in the employment contract stipulate the terms of the contract, the internal regulations with which the employee must be familiarized, the amount of his salary and the obligations of the persons concluding this contract. For the most part, a typical employment contract is concluded, the template of which is provided in labor legislation. According to labor legislation, the employer himself deducts the amount of all necessary taxes from the salary of the employee and pays them within the time limits established by law. According to a civil law contract, such a condition is not mandatory.

Termination of the employment contract

Termination of an employment contract at the initiative of the employer is possible only in strictly listed cases, a list of which is contained in the Labor Code.

To conclude an employment contract or not

Is it necessary to sign an employment contract? If you want to protect yourself from unexpected dismissal and secure a decent pension, then yes. If possible, demand from the employer that an employment contract be concluded with you in accordance with applicable law. Carefully read all of its points, consult with a lawyer. But remember! An employment contract is your guarantee and your safety.