The employer does not give out the work book, what should I do? We act according to the law

Failure to issue a work book upon dismissal is a gross violation of the employee’s legal rights. But few people know that an employee can not only hold the former manager accountable, but also receive moral and material compensation from an unscrupulous employer.

Often the reason that a dismissed employee did not receive this document on time may be not only the negligence of the personnel department, but also a tense relationship with the manager. An attempt to harm or manipulate an employee by withholding one of the main employment documents leads to especially unpleasant consequences if the quitter not only leaves, but plans to take a new job in the near future.

In most cases, it is pointless to sort things out with the former management, ask or start a scandal; all this can only worsen the situation. It is possible to protect yourself by remaining calm and acting in accordance with labor laws. Where should a fired employee contact? What should you do if, after dismissal, the employer does not give you your work book? What should you do to compensate yourself for losses associated with these illegal actions?

Application (appeal to the employer): how to write?

The application is written in free form on a standard A4 sheet. It contains the following information:

Full name and contact information of the person making the application (employee).
The requirement to issue the applicant with a work book in person in connection with dismissal.
Date of application.
Signature and transcript of the applicant's signature.

If for some reason the employee is unable to appear in person for his work book later, consent to send the document by mail can be attached to the application. The consent must indicate the address to which the work book of the dismissed employee should be sent.

The application or written request should be drawn up in two copies, one of which is handed over to the employer. On the second copy, the employer’s representative puts a note indicating receipt of the application with his signature; the employee keeps this document. If the employer's representative refuses to accept the application or leave a signature on the second copy, the written appeal should be sent to the employer's organization with notification by registered mail.

Of course, if the failure to issue a work book by the employer was the result of an error in the work of the personnel service, a simple written request will be enough to correct the situation. It’s another matter if, by retaining the documents, the employer deliberately prevents the former employee from finding employment. In such a situation, it will not be possible to solve the problem without contacting regulatory authorities or the court. What should an employee do if they intentionally do not issue a work book?

What methods to use

So, the employer deliberately does not give you the document you need. Attempts to act in accordance with the labor code will not be successful, and you don’t want to stay in the company. In this case, you can use two methods: contact the labor inspectorate or start legal proceedings. Let's look at each of the methods in more detail.

Contacting the labor inspectorate

An appeal to the labor inspectorate follows the following violations by the employer:

Lack of work under an employment contract.
Payment is not made in full or with a delayed schedule.
Lack of social insurance for the employee by law.
The employee’s workplace does not comply with labor legislation.
Other violations of labor legislation.

In this case, the employer refuses to issue the required document. Since we want to contact the labor inspectorate, first find out the address of the territorial office of the inspectorate, then draw up an appeal indicating a violation of labor rights.

Also, do not forget to attach all the necessary documents that can support your arguments. After which the completed application must be submitted or sent by registered mail.

The appeal itself must be drawn up correctly and consist of the following points:

name of the territorial department of the labor inspection, contact details of the head of the institution;
contact details of the citizen and his position;
arguments that indicate a violation of labor rights;
personal signature and date on the completed application.

Administrative responsibility of the employer. Fines, sanctions

Failure to comply with an issued order, including violation of the deadlines for issuing or timely execution of a work book, gives the Federal Labor and Employment Inspectorate the right to bring the employer who violated the law to administrative liability. The fine for failure to issue a work book upon dismissal for a legal entity can range from 30 to 50 thousand rubles. An official, that is, a manager, or an individual entrepreneur who fails to issue a work book on time may be punished by disqualification for up to three years or a fine of 1,000 to 5,000 rubles.

But if, despite the inspection of Rostrud and the issued order, the employer does not give the work book, what should the employee do?

Does the employer have the right not to give?

The employer does not and cannot have such a right. Not only does he not have the right to withhold the document, he is obliged to show activity and initiative if the employee was negligent in receiving his own book.

On the last working day of the resigning person, an authorized employee is obliged to call him or contact him in another way and remind him of the need to pick up the TC.

If the employee is not present at the workplace on the last day, the employer is obliged to notify him in writing, by registered mail, of the need to pick up his book.

Documentation of the notice sent must be kept in the former employee's personal file. The TC must be returned even if the employee is located outside the locality and cannot personally receive his book.

In this case, you can use the following options:

With the written consent of the dismissed employee, it is sent by Russian Post.
Transfer it through an intermediary on the basis of a power of attorney certified by a notary.

Under no circumstances should you:

Withhold labor costs if the employer imposes financial responsibility on the employee.
Force him to sign a bypass sheet or otherwise delay the issuance of the Labor Code.
Force a specialist to perform (complete) the work required by the employer.
Blackmail him and threaten him, for example, with dismissal “under the article” if he refuses to fulfill the employer’s conditions.

Knowing about the labor liability that threatens for failure to hand over, an employer who does not want to let go of the employee he needs usually acts in a different way - does not accept his resignation letter.

How to oblige a former employer to issue a work book through the court

How else can you act if they don’t give you your work book? Go to court. There is no need to delay going to court. The statute of limitations for failure to issue a work book and other documents on the day of dismissal is limited to 3 months from the date of termination of the employment contract.

Litigation is the most common and effective way to restore violated rights if the employer does not hand over the work book. What should I do to legally oblige my former boss to hand over a completed work book?

First, the employee must correctly draw up a statement of claim. You can write it yourself or seek legal advice. You will need to provide the following information:

Information about the plaintiff (applicant).
Periods of work and position of the applicant, date of dismissal.
Employer information.
An offense committed against the applicant, with reference to articles of the Labor Code of the Russian Federation.
The applicant’s request: issue a work book, make changes to existing records, etc. The statement of claim for non-issuance of a work book also includes demands for moral compensation and compensation for material damage, if any.
Enclosures: copies of supporting documents.

A copy of the statement of claim is submitted against signature or sent with notification by registered mail to the defendant, that is, the employer.

If the employer does not give the work book, what to do?

The most common cases are when an employer avoids issuing a work permit or outright refuses to issue it:

Doesn't want to let the employee go because he needs him for the production process.
Demonstrates his power among members of the work collective, realizing the extent of the violation committed.
He is incompetent in matters of labor law and poorly aware of his responsibilities.
The employee's work record is lost or damaged, and the authorized person is trying to avoid liability.

Knowing the motives for delaying labor , you will be able to most adequately navigate the ongoing process. If they are not clear to you, you need to cover them with a single algorithm of actions.

They don’t hand over your work book after dismissal - where to go?

Act with confidence, the protection of employee rights in labor disputes can be considered in various instances, where to go if they do not hand over the work book upon dismissal:

The Labor Dispute Commission (LCC) at the enterprise from which you are leaving.
Labor inspectorate of your region.
District court at the location of the organization.
The prosecutor's office.

Application deadlines

Keep in mind that the resolution of the issue has a statute of limitations of 1 month for all issues related to labor relations. By a court decision, it can be extended up to 3 months , provided that you actively make attempts to return the Labor Code from the employer.

The framework of the established period is motivated by the fact that for the forced time of your absence, while you could not receive your book from the employer, you are entitled to compensation in the amount of the average salary paid to you in your last position. Accordingly, the terms of the provided payment are limited.

This period is counted from the last day of work at the enterprise, in accordance with the dismissal order. But if the order is not issued, and your application is lost for unknown reasons, you will have to act from the very beginning, submitting the application according to all the rules.

Write an application in two copies , submit it to the manager, explaining that he must sign the first application as a responsible person, and the second copy is a copy. A copy is needed as a safety net to avoid the precedent of losing the submitted application.

After signing both copies, leave one of them for production, checking that it is correctly recorded in the incoming correspondence journal. Keep the second copy for safekeeping.

After this, after 15 days you have the right to demand the issuance of a work permit. In this case or in other situations when the employer has already issued a dismissal order, the book is issued without delay. If it is not issued within three days after dismissal, you have the right to contact the CTS, if it is available in your department or enterprise.

In other cases or at your discretion, you can contact the labor inspectorate . Based on a resolution issued by these organizations that protect the interests of workers, you can receive a delayed book.

If consideration of the issue is denied to you or the decision is not in your favor, after the refusal or negative decision received, you can submit documents to the district court at the location of the defendant’s organization (Article 35 of the Arbitration Procedure Code of the Russian Federation). Without a preliminary consideration of the issue by the CTS or the labor inspectorate, the court will not accept documents for proceedings.

Act on non-receipt of a work book on the day of dismissal - sample.

Let's talk about responsibility

However, please note the reason for your request being denied. In some cases, the employer is relieved of responsibility for late issuance of technical documentation. These may include situations:

If the date of dismissal does not coincide with the last day of work of the dismissed person on the basis of clause 6, part 1, article 81 or clause 4. Part 1 of Article 83 of the Labor Code of the Russian Federation (Part 6 of Article 84.1 of the Labor Code of the Russian Federation).
Upon dismissal of a woman whose contract was extended due to pregnancy (Part 2 of Article 261).
After the employer has taken appropriate measures to transfer the labor to the owner.

In these cases, the employee can make a request for the issuance or forwarding of a document; there should be no obstacles to receiving it.

Sometimes the failure to issue a book is associated with serious problems that comprehensively affect several aspects of labor legislation. For this reason, many employees immediately contact the prosecutor's office.

You must contact the district prosecutor's office of the area where the organization against which the complaint is being filed is located. The employee writes a statement to the prosecutor.

To apply, you need one small nuance - the employer really acted unlawfully towards you, and you filed everything properly.

In this case, the appeal will be as effective as possible, and the presumptuous manager will be held accountable for all violations immediately that the prosecutor’s audit reveals. Based on the results of the prosecutor's inspection, you will be given a document and paid for forced absences.

A statement to the prosecutor , unlike a claim, is written in free form, without references to articles and other grounds. Here you just need to state the circumstances of the case in a laconic form, indicating:

dates of dismissal;
name of the organization;
your personal data;
personal data of the responsible person.

Application to the prosecutor's office for non-issuance of a work book - sample:

The standard in this application should be only the “header”, which is drawn up in the upper right corner of the A-4 sheet. It must indicate in strict sequence:

To the prosecutor (indicate the name) of the district, city (name).
Last name, first name, patronymic of the prosecutor.
From whom, indicating the applicant’s last name, first name, patronymic, and home address.
Applicant's contact phone number.

After the name of the document, the text itself is drawn up, with a request to conduct a prosecutorial audit in order to protect your rights. Please indicate that the work book was not issued to you illegally. Expect the results to be presented to you in writing.

Responsibility for the storage and production of labor documentation rests with the employer on the basis of Article 45 of the Rules (No. 225), which stipulate the need to organize production conditions where the degree of protection of these documents will be extremely high.

In addition, responsibility may be imposed on a specially authorized person on the basis of job descriptions or orders from the manager.

The responsibility in this case will be considerable. In accordance with Art. 5.27 of the Arbitration Procedure Code of the Russian Federation, he can be held accountable in the form of an administrative fine from 30,000 rubles to 50,000 rubles. An authorized person may be fined from 1,000 to 5,000 rubles.

If, due to his negligence or abuse, the labor of an employee or several persons was lost, which entailed unpleasant consequences for them, liability may rise to the level of criminal:

Based on Article 140 of the Criminal Code of the Russian Federation - failure to provide information.
Based on Article 293 of the Criminal Code of the Russian Federation - negligence.
Art. 324, 325 or 292 of the Criminal Code of the Russian Federation are charged in the case of an intentional mercenary order of an employee.

In addition, through a civil lawsuit in court, an employee injured due to a work book not being issued on time has the right to recover compensation for moral damages from the employer.

Collection occurs by filing a statement of claim in the district court at the location of the employer. There are more than enough legal grounds for this - this is Article 151 of the Civil Code of the Russian Federation. Also articles of the Labor Code of the Russian Federation: 3, 21, 22, 237, 294.

Typically, moral damages are recovered along with material damages, which in this case will be payment for forced absence. You can recover moral damages for the suffering caused to you associated with the infringement of your rights, for discrimination, humiliation that you were subjected to by an employer who did not want to issue a work permit.

It is very appropriate to recover moral damages for offensive, derogatory behavior towards you in the presence of third parties.

If there are facts of a difficult life situation in which it was very difficult and morally uncomfortable , indicate this in the application. For example:

Your nervous system is upset and you consult a doctor (provide a certificate).
You became depressed and needed the help of a psychologist or psychotherapist.
You suffered from powerlessness and resentment that you were treated unfairly.

All your claims expressed in the claim must be confirmed with certificates or testimony and you must ask the court to recover a specific amount of money, determined by you, for moral damage.

Material compensation for the employee

Failure to issue (withhold) a work book at a previous job deprives a citizen of the opportunity to find a new job or apply for temporary support at the Employment Center. Thus, the worker is left without the opportunity to receive unemployment benefits or wages. What to do? They don’t hand over the work book or deliberately delay the issuance of this document? This is primarily a reason to demand compensation through the court for wages for the period when the employee could not find a job due to the fault of the former employer. For each day of forced inactivity, the court will order the employee to pay compensation in the amount of no less than the average earnings in the organization of the former employer.

In what cases is the employer not liable?

However, there are cases when the employer is not responsible for the delay of the work book. Among these reasons are:

Systematic absenteeism of an employee and causing material damage to the company.
An employee goes to jail.
The former employee of the company did not show up for several days to terminate the contract.
Other reasons why the employer is not liable to the employee.

There are often situations when an employee appears after a long period of time and declares that he was not given a work book. Blackmail of the employer begins, and the judicial process can drag on for a long time.

Also, the employer is not responsible if the day the work book is issued falls on a weekend. In this case, the employer may make concessions.

Length of service and day of dismissal

Another violation of the rights of a dismissed employee concerns the length of service that the employee lost due to the fault of the former employer. By a court decision, the employee is reinstated at work for the entire period when the work book was with the unscrupulous employer. The day of dismissal will be recognized as the day when the employee was actually issued a work book and other documents confirming information about work and length of service. After the court decision comes into force, the employer is obliged to:

Issue an order to reinstate the dismissed employee at work in the position he held at the time of dismissal.
Make an entry in the work book of the reinstated employee to invalidate the previously made entry on termination of the employment contract with the employee.
Issue a new dismissal order, dated on the day the work book was issued.
Make an appropriate entry in the work book.

Important! Reinstatement does not entail the employee’s obligation to work for this period.

Life after dismissal

Let's say you no longer work for your previous employer. But here’s the problem: before his dismissal, he did not fulfill his obligations under the Labor Code of the Russian Federation. Article 84.1 states that the enterprise is obliged to return the former employee’s work book. At the same time, it records that the employment relationship has been terminated for one reason or another. And this entry must coincide with the date of dismissal.

So, the employer does not give out the work book . In this case, first make sure that there are no compelling reasons why this document could not be issued. These types of reasons include:

absence from work on the day when the employment contract is terminated;
voluntary refusal to receive your document.

Next, the company is obliged to notify the employee of the need to obtain documents by telephone or any other adequate method. The book can be collected upon personal appearance at your previous place of duty. Otherwise, the company will send it by Russian Post, which will eventually reach the addressee.

If there was no response from the employee to the notification, but later he demanded a work permit, the employer is obliged to issue it. The law gives 3 working days for this.

Also see “Rules for filling out work books in 2022.”

Circumstances and measures excluding the employer's liability

But is the law always on the employee’s side? Failure to issue a work book on the day of dismissal does not entail liability for the employer if the head (representative) of the organization did not have the opportunity to hand over the document to the employee in a timely manner, but he took all the necessary measures.

Perhaps the most common situation when an employer does not hand over a work book through no fault of his own is the absence of the dismissed employee on the last day of work or shift (day of dismissal). The reasons for this may be absenteeism, temporary disability, vacation followed by dismissal and other circumstances. The employer can take the following measures:

Draw up an act confirming the absence of the dismissed employee from the workplace on that day and enter the corresponding mark in the working time sheet.
Send a letter to the employee in a timely manner with an official notification of the need to appear in person to receive a work book. As a rule, such a document is sent by registered mail to the employee’s place of registration (registration), as well as to all the employee’s addresses that are known to the employer. From the date of dispatch, the employer is relieved of responsibility for late issuance of the document.

In a situation where the failure to issue a work book upon dismissal occurred due to a refusal to receive the document, the employer, in accordance with the law, must act as follows:

On the day of dismissal, an act is drawn up about the citizen’s refusal to receive a work book. The employee must be familiarized with the act by signature.
Ensure the storage of an unclaimed work book until it is handed over to the employee in person or for 75 years from the date of dismissal.

Obligation to issue a work book

According to Art. 66 of the Labor Code of the Russian Federation, a work book is the main document containing information about the work activity of its owner, as well as his accumulated work experience.

The obligation to issue a work book to a dismissed employee is regulated by clause 35 of the Decree of the Government of the Russian Federation No. 22 of April 16. 2003, as well as Art. 84.1 Labor Code of the Russian Federation.

Both legal norms state that on the last working day the employee’s pay must be transferred to the employee, as well as the final payment upon dismissal.

Before this, the employer is obliged to correctly include the wording about the reason for dismissal, as well as indicate the number of the corresponding order. In addition, the entry made in the employment record must correspond to that indicated in the dismissal order.

Moreover, it must be certified by the inspector of the personnel department and the employee to whom the document should be given.

By the way, the fact of its receipt is necessarily reflected in the journal of the movement of labor books, the form of which is approved by Resolution of the Ministry of Labor No. 69 of October 10, 2003. The HR department employee makes an entry in column No. 12 about the date of issue of the work record upon termination of the employment relationship, and the employee, in his queue, signs in column No. 13 for its receipt.

Important! If an employee uses an electronic work book, then upon dismissal, management is obliged to issue information about the employee’s work activity in paper form in the STD-R form, approved by Order of the Ministry of Labor No. 23n on January 20, 2020, or in electronic form, if such a possibility exists. This is also stated in Art. 66.1 Labor Code of the Russian Federation.

STD-R form, which must be issued to a dismissed employee from 2020

Download the blank form STD-R

Currently, it is possible to obtain information about labor activity electronically only for the period after January 1, 2022. Before this date, information about work activity is confirmed using a standard work book. In other words, a fully electronic labor format is possible only for workers who began their career in 2022.

It is not always possible for an employee to pick up a work permit in person. The employer is also obliged to issue the book to the person who presents a notarized power of attorney to receive it. At the same time, relatives can also take it, but only after the death of the person to whom it belonged. In some cases, the work permit can also be sent by mail.

Nevertheless, there are circumstances in which the failure to issue a work book by the enterprise administration is considered legal.

Where can I restore my employment?

But there are also very difficult cases. For example, the employer does not hand over the work book, and the organization in which the employee worked ceases to exist, that is, is liquidated. Difficulties arise if it is impossible to establish the whereabouts of the former manager. Over time, it may be possible to find the unscrupulous employer and return the lost document. But in order to be hired for a new job or calculate work experience, the employee will need to draw up and receive a duplicate of the work book. How to confirm existing experience and who has the right to issue a duplicate document?

First of all, the employee will have to obtain documents confirming his existing experience, continuous and general. Such documents may be:

Certificates from the Social Insurance Fund and the Pension Fund branch confirming the availability of social contributions and pension contributions during these periods.
Certificates, copies of personnel administrative documents (orders) from previous places of work, including information from archival organizations.

Based on supporting documents, information about the employee’s past work activity is entered into the duplicate. Who has the right to issue such a duplicate? According to the currently existing Rules, the employee must apply for a duplicate at his last place of work. But what to do when it is the last employer who is to blame for the loss of his employee’s documents, and it is not possible to find him?

If an employee plans to find a new job, then the new employer has the right to draw up and issue a new work book and indicate information about the length of service based on supporting documents. In the new work book, issued to replace the lost one, the total length of previous work experience is entered in total, but without specifying the periods of work, indicating the positions of the employee and previous employers.

What happens if you hand over a work book based on an application?

The employee really needs the original work book, but he is not resigning and does not intend to apply for a pension. Should we meet him halfway? There is no clear answer in the legislation. This means that there is neither permission nor direct prohibitions on the issuance of a work book at the request of an employee in situations not listed in Art. 62, 84.1 Labor Code of the Russian Federation.

However, it is worth clearly understanding: if you give an employee a work book, it will not be him who will be responsible for its safety, but the one who is authorized by the order to maintain and store work books (clause 42 of the Rules for maintaining work books). Even if the HR department has a receipt from the employee. In other words, issuing a work permit, especially in cases not prescribed in the Labor Code of the Russian Federation, is a risk.

If you need to appoint someone responsible for maintaining work records, use the sample order from ConsultantPlus. Trial access to the legal system is free.

Read about the employer's liability for the loss of a work book here.