What to do if a person applying for a job does not have a work book

Why do you need a work book?

According to Art. 65 of the Labor Code of the Russian Federation, when applying for a job, an employee is required to provide a work book.

When concluding an employment contract, the employee does not provide a work book in the following cases:

• the employment contract is concluded for the first time;
• the employee gets a part-time job.

In accordance with Art. 66 of the Labor Code of the Russian Federation, a work book of the established form is the main document on the employee’s work activity and length of service.

The employer keeps work books for each employee who has worked for him for more than five days, in the case where the work for this employer is the main one for the employee.

The following are entered in the work book:

• information about the employee;
• information about the work he performs;
• information about transfers to another permanent job;
• information about the employee’s dismissal;
• grounds for termination of the employment contract;
• information about awards for success in work.

Information about penalties is not entered into the work book, except in cases where the disciplinary sanction is dismissal.

Situation

Rostrud, in a letter dated October 20, 2021 No. PG/30991-6-1, considered a fairly common situation when a person lost his work book during a period when he was not working, and when finding employment at a new place of work, he submitted an application to maintain information about his work activity in electronic form .

But he was denied such registration for work, since there was no information about his existing work activity, and he was asked to first submit a paper work record book.

As a result, the question arises whether it is necessary to restore a lost work book or whether it is permissible to immediately switch to maintaining information about work activities in electronic form by submitting certificates from previous places of work.

What to do if an employee does not provide a work book

If the employee does not provide a work book, the employer has the right to take the following actions:

How to think and act correctly

In this situation, Rostrud recommends that the person applying for a job indicate in the application for registration of a work book the fact that there is no information about work activity .

After the work book is issued, the employee has the right to submit one of the written applications - for the employer to continue maintaining a paper work book in accordance with Art. 66 of the Labor Code of the Russian Federation or about the provision by the employer of electronic information about labor activity - Art. 66.1 of the Code.

At the same time, Rostrud drew attention to the fact that the formation of information about the labor activity of persons entering work for the first time after December 31, 2022 occurs in accordance with Art. 66.1 Labor Code of the Russian Federation. That is, according to the new rules, paper work books will not be issued for them.

Restoration of work record

According to the Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books” (as amended and supplemented), a person who has lost a work record is obliged to immediately notify the employer at his last place of work . In this case, the employer is obliged to issue the employee a duplicate work book no later than 15 days from the date the employee submits the application.

When preparing a duplicate work book, the following is entered into it:

• information about the employee’s total and (or) continuous work experience before joining this employer, confirmed by relevant documents;
• information about work and rewards (promotions) that were entered into the work book at the last place of work.

The total length of service is recorded in total, that is, the total number of years, months, days of work is indicated without specifying the employer, periods of work and positions of the employee.

If the documents on the basis of which entries were made in the work book do not contain complete information about work in the past, only the information available in these documents is entered into the duplicate work book.

If there is an entry in the work book about dismissal or transfer to another job that is declared invalid, the employee, upon his written application, is issued a duplicate work book at his last place of work, into which all entries made in the work book are transferred, with the exception of the entry declared invalid.

Exceptions to the rules: when else can you hire an employee without a work permit?

The provisions of the law allow another option, when an employer can hire a person without a work book who is not an exception to the rules of Art. 65 Labor Code of the Russian Federation. This is possible if the employee has lost or lost the document due to some insurmountable circumstances.

As a rule, in such cases, the employee is obliged to immediately report the loss (theft or loss) of the book to his previous employer, who must issue a duplicate of it within 15 days (clause. Rules for maintaining work books). When filling out the form, it is mandatory to enter o on its title page (we talked in more detail about preparing a duplicate work document here).

But according to Art. 65 of the Labor Code, an employee can also contact his new employer with an application to issue a new labor document in connection with its loss, damage, etc. For such situations, a special procedure has been established for issuing a new work book for an employee:

• Simultaneously with the application for employment, the applicant must write a separate application for a new work book form to be issued to him. The reason for issuing the form is indicated (loss, theft, etc.);
• Based on the application of the new employee, the employer is obliged to draw up a new work book accordingly, and notify the employee of this under signature (a mark is placed on the employee’s application, the application is filed in his personal file);
• The form of a new work book is provided by the employer, with subsequent deduction of its value from the employee’s salary.

The new employer is not required to enter information about the employee’s work activity for the period preceding the issuance of a new record book into the form, although this is not prohibited by law. If there are supporting documents about previous places of work, this information can be entered into the new work record.

A new work book issued in compliance with all established requirements has the same legal force as the original lost by the employee.

How to hire an employee who does not have a work book

If an employee does not have a work book when applying for a job, the employer has the right to the following actions:

1. Refuse to hire an employee.
2. Request a copy of the work record book from the main place of work (if the employee gets a part-time job).
3. Draw up an act on the absence of a work book and, at the request of the employee, issue a work book in compliance with the legislation of the Russian Federation.

Example:

Locksmith K.K. Kryuchkov is getting a job at ABV LLC. He cannot provide a work book, because... During the move when changing place of residence 2 years ago, it was lost. For 2 years Kryuchkov K.K. didn't work anywhere. In this case, the employer needs to draw up a report on the absence of a work book and, based on the employee’s application, issue a work book.

When can an employer hire an employee without a work permit?

The legislation provides for the possibility of hiring an employee who does not have a work book for valid reasons. One of these reasons may be the loss of this document by an employee, when it is difficult to restore the book due to the liquidation of the employer or the delay by the previous employer in issuing it. In this situation, the employee must submit an application stating that he does not currently have a work book and for what reason.

The law does not provide for an employer to be obliged to restore records from a work record lost by an employee. But if he provides reliable data about his work activity based on certificates, extracts from the archive and employment contracts, then the employer can enter this data when filling out the book.

Responsibility of the employer for violation of maintenance of work records

Responsibility for violations in the maintenance of work books refers to a violation of the labor legislation of the Russian Federation, for which sanctions are imposed (Article 5.27 of the Code of Administrative Offenses of the Russian Federation, Article 15.11 of the Code of Administrative Offenses of the Russian Federation)):

In case of theft, destruction, damage or concealment of a work record book, committed out of selfish or other personal interest, Art. 235 of the Criminal Code of the Russian Federation, where the following sanctions may be applied:

• a fine in the amount of up to 200,000 rubles or in the amount of wages or other income of the convicted person for a period of up to six months;
• compulsory work for up to 360 hours;
• correctional labor for up to one year;
• arrest for up to three months.

We are hiring for 2022

The transition to electronic work books began in 2022. Workers wrote applications, choosing the form of maintaining a work record book. In 2022, employers will continue to maintain paper work records for those who have not submitted the appropriate application[1], and for employees who have chosen the electronic option or are applying for a job for the first time, employers will no longer fill out paper work records.

We are hiring an employee in 2022

Since January 2022, the hiring algorithm has changed slightly.

Employees who have chosen to provide information on work activity (hereinafter referred to as STD), when applying for employment, in order to confirm their length of service, in addition to a paper work record book, will have to present a certificate in the form STD-PFR or STD-R.

Thus, in 2022, registering an employee for work should begin with checking the way his work record is maintained. When finding employment, a new employee provides the employer with the following documents:

• only a work book - if he has not previously refused to keep it, or
• work book and STD.

It is necessary to check the last entry in the employee’s work book. She may be:

• about dismissal from work or
• about filing an application for STD.

In the certificate provided by the employee in the STD-PFR form, it is necessary to check the note about the refusal to maintain a paper work book:

• if it exists, the STD is maintained only in electronic form;
• if there is no mark, the employer continues to maintain both the STD and the paper work book.

Next, the hiring process is formalized as before: an employment contract is concluded with the employee and a hiring order is issued. But before this, the employee, against signature, must be familiarized with the Internal Labor Regulations and other local regulations of the employer relating to the performance of his job duties.

No later than the working day following the day of issuing the order to hire a new employee, the employer is obliged to submit a report on it in the SZV-TD form to the Pension Fund of the Russian Federation.

We appoint someone responsible for maintaining work records in electronic and paper form

Since 2022, due to the introduction of an electronic work book, HR officers have an additional job: they need not only to maintain paper work books of employees, but also to submit reports to the Pension Fund of the Russian Federation.

The person responsible for maintaining electronic and paper work books is appointed by the head of the organization. According to the Rules for maintaining and storing work books, producing work book forms and providing them to employers[2], the employer appoints those responsible for maintaining and storing paper work books by appropriate order. The same employee (or another) by a similar order can be appointed responsible for the transfer of STD to the Pension Fund (example 1).

How to certify a copy of a paper work record book in 2022

The rules for certifying a copy of a work record book have not changed in 2022. Let us remind you what needs to be done to correctly certify a copy of the work book:

1. Scan and print (or make photocopies) pages of the work book.

2. Number the pages and sew them together.

3. Put a stamp on each page or make the appropriate notes manually.

4. Certify each page not only with the signature of the responsible employee, but also with the seal of the organization (if any) (example 2).

Categories of workers who can switch to an electronic work book in 2022

Employees who, for objective reasons, did not have the opportunity to submit an application to switch to STD before December 31, 2022 inclusive[3], have the right to do this at any time by submitting to the employer at their main place of work, including during employment, a corresponding written statement[4].

These workers include:

• persons who were not employed in 2022;
• were on sick leave, maternity leave, parental leave, that is, they did not fulfill their work duties, but their place of work was retained.

Please note that this list is open.

[1] Letter of the Ministry of Labor of Russia dated February 10, 2020 No. 14-2/B-136.

[2] Approved by Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 “On work books” (as amended on March 25, 2013).

[3] Clause 6 of Art. 2 of Federal Law No. 439-FZ of December 16, 2019 “On amendments to the Labor Code of the Russian Federation regarding the generation of information about labor activities in electronic form” (hereinafter referred to as Federal Law No. 439-FZ).

[4] Letter of the Ministry of Labor of Russia dated August 12, 2020 No. 14-2/OOG-12933.

Questions and answers

1. The employee turned out to have lost the insert in his work book. How to restore it?

Answer: Restoring the insert in the work book is carried out in the same manner as restoring the work book, i.e. it is necessary to be guided by the Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books” (with amendments and additions).

1. Can I get a job without a work book if I enter into a contract with an organization?

Answer: If an employment contract is concluded between you and the employer, employment without a work book is impossible. If a contract is concluded between you and the organization, a work book will not be issued.

1. I'm on maternity leave. Can I get a part-time job without obtaining a work book?

Answer: In this case, employment does not require registration of a work book, because We are talking about part-time work, but you must remember that when working part-time, you cannot work full-time.

Work under a contract for an individual: features

In such a situation, the employer is an ordinary individual who is not an individual entrepreneur. However, such a citizen has the right to hire a worker, for example, to help with his personal household. The peculiarity of labor activity is that the employee’s labor activity is not related to the individual’s extraction of commercial profit, and the results of labor obtained are used for personal purposes (for example, vegetables from the garden).

Such an employer does not have the right to make entries in the employee’s work book. The guarantee of labor relations is a civil law agreement (CLA). It is concluded in writing according to established rules.

Important! Such an employer must inform the authorities at the place of registration that he has hired or fired an employee.

Features of the relationship under the GPC agreement:

• the contract can be fixed-term or indefinite;
• the terms of the contract must not contradict existing legislation;
• the employer must pay contributions to the Pension Fund and Social Insurance Fund for his employee;
• When hiring an employee for the first time, the employer is responsible for registering SNILS.

The main differences between an employment contract and a GPC document are presented in the table below.

Important! In some cases, during legal proceedings, the GPA may be recognized as a labor agreement if there are signs of a labor option for formalizing the relationship. Sometimes employers try to replace these two concepts, since the employer’s obligations under the GPA are much easier and smaller.

Advantages and disadvantages

Many workers believe that there are many advantages , including:

1. There is no fixed schedule. Thanks to this, it is possible to go to work when the employee deems it necessary.
2. The subordinate chooses his own convenient working time.
3. There is no need to follow orders from higher management.

few disadvantages to working under a contract:

1. In most cases, when applying for a job, people expect that the employment relationship will last a long time. But, work under a rental agreement often has a certain period.
2. It is possible to stop working under such an agreement only if the employer decides so. At the same time, he has the right not to warn the subordinate in advance.
3. The employment contract does not provide for the required vacation, because the subordinate receives a salary for a specific amount of work.
4. Under a rental agreement, there is no possibility to receive additional accruals, such as bonuses.
5. Maternity leave and sick leave are not subject to payment.
6. When accruing for sick leave, the period of work under such an agreement will not be taken into account.
7. The term of work under the contract will be included in the insurance period only at the time of retirement age. If a citizen goes to work in another place, then this length of service is not taken into account.
8. The manager is relieved of responsibility to the worker.

Is it possible to save on taxes when contracting a contract with an individual? Any manager will be interested to know:

Under an employment contract, but without labor contract: responsibility

Without a work book, you can work part-time for an individual’s employer and in the case where the relationship is formalized not as an employment relationship, but as a civil law one.

Labor legislation protects the employee, provides him with special rights and guarantees , and if the employer abuses the right and bypasses the law, instead of an employment contract, draws up a civil contract (author's, contract, etc.), he will be held administratively liable under Article 5.27. Code of Administrative Offenses, and for repeated violations the punishment is more significant.

If an employee abuses his right, and a civil contract was concluded precisely on his initiative in order to avoid paying mandatory contributions, and this happens to the employee systematically, he can be held accountable for illegal business, for example, under Art. 14.1. administrative code.

The work book confirms the existence of labor relations and indicates their specificity, serves to certify the labor rights of a citizen and indicates his length of service. Its necessity in labor relations is directly provided for by law.

It is in the interests of both the employee and the employer to thoroughly comply with these requirements. This will protect the relationship and avoid inevitable liability for violating a mandatory law.

Is employment official without a work permit?

You should not be deceived and believe the promises of an employer who claims that employment is possible without entering information into the employment form or without signing a contract.

Unofficial work means that the company does not pay social insurance contributions, does not make contributions to the Pension Fund or health insurance. Upon reaching retirement age, a person will not be able to confirm his own experience, i.e. Time spent working for an unscrupulous company will not be counted.

• An employer violates an employment contract: what should an employee do, how to sue

The employer, removing all responsibility for the hired personnel, becomes a violator of the law with all the ensuing consequences.

For an employee, consent to informal employment means:

• lack of legal protection and wage guarantees;
• lack of vacation, vacation pay, temporary disability benefits, etc.

Having received an industrial injury or mutilation, it is quite difficult to obtain compensation even through the courts.

When a company replaces a regular contract with an employee with a GPC agreement, the official should be prepared to receive a fine under administrative liability in the amount of 10 thousand rubles, and the company will pay a fine of up to 100 thousand rubles for each identified case of violations. Acceptance of an employee under a GPC agreement by a private entrepreneur also entails a fine.