How to register a transfer to the position of General Director?

The director of an LLC can be hired subject to compliance with labor legislation. Although the procedure is somewhat different from that used in the case of employment of other employees, the basic principles and requirements remain the same. Thus, the director of an LLC, regardless of whether he is one of the founders of the company or an outsider, has the right to wages and leave.

Note! Hiring workers without setting a salary is not provided for by labor legislation, so the general director is also paid a salary even if he is the founder of the company.

The article provides information on how to correctly hire an LLC director, what documents need to be prepared, as well as how to draw up an employment agreement. In addition, you will be able to familiarize yourself with the stages of the procedure and the features of each of them. The material contains information on how to apply for a part-time and part-time .

Transfer of an employee to the position of director of an LLC: legal gaps

The transfer to the position of director of a person who is an existing employee of the company is a procedure implemented in the jurisdiction of two different branches of legislation - labor and civil.
When considering the legal norms enshrined in them, one can observe the presence of a number of obvious gaps in the legal norms - regarding the regulation of the transfer of an existing employee of the company to the position of general director in an LLC. Namely:

1. The term of office of the director of an LLC: if its establishment is not within the competence of the board of directors of the business company, then it cannot exceed the period specified in the organization’s charter.

At the same time, the charter cannot reflect an indefinite period (Clause 1, Article 40 of the Law “On LLC” dated 02/08/1998 No. 14-FZ, Article 190 of the Civil Code of the Russian Federation).

Thus, on the one hand, concluding an open-ended employment contract with the director of an LLC is not prohibited by labor legislation (Article 59 of the Labor Code of the Russian Federation), on the other hand, if his term of office is limited, concluding such an agreement is inappropriate (since, without authority, the director will not be able to fulfill his duties). duties, his signatures will be illegal).

2. Initially, an employee of an enterprise can work on a permanent employment contract. Transfer from it to an urgent one, to which there is no alternative when hiring an LLC director in the general case, the courts tend to consider as an illegal procedure (appeal ruling of the Irkutsk Regional Court dated August 16, 2013 in case No. 33-6746/13).

Taking into account this peculiarity of the relationship between legislative norms, as well as the position of the courts, we will consider possible legal scenarios for the transfer of an existing employee of an enterprise to the position of director.

Employment history

Situation: what document should be indicated as the basis for hiring in the work book of the general director elected to the position by the general meeting of participants (shareholders) of the organization?

As the basis for hiring the general director, indicate in his work book:

• or details of the order for the general director to take office;

• or details of the minutes of the general meeting of participants (shareholders) (decision of the sole participant, minutes of the board of directors (supervisory board)) on the election (appointment) of the general director.

It is explained like this.

Column 4 of the work book indicates the date and number of the order (instruction) or other decision on hiring an employee (clause 3.1 of the Instruction, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69).

The general director is the sole executive body of the company and is elected (appointed) to the position by the general meeting of participants (shareholders) of the organization (sole participant, board of directors (supervisory board)) for a certain period (clause 1 of article 40, article 39 of the Law of February 8 1998 No. 14-FZ, paragraph 1, 3 Article 69 of the Law of December 26, 1995 No. 208-FZ).

The agreement between the organization and the general director is signed on behalf of the company by the chairman of the general meeting of participants (shareholders) (the only participant, the chairman of the board of directors (supervisory board) or other authorized person of the organization (paragraph 2, paragraph 1, article 40 of the Law of February 8, 1998 No. 14-FZ, paragraph 2, clause 3, article 69 of the Law of December 26, 1995 No. 208-FZ).

Moreover, if an employment contract has been concluded with the general director, his hiring must be formalized by order (instruction) (Part 1 of Article 68 of the Labor Code of the Russian Federation). Therefore, the general director issues an order to take office.

Thus, for such an employee of the organization as the general director, as a basis for hiring in the work book, you can indicate both the details of the order for taking office and the details of the minutes of the general meeting of participants (shareholders) of the organization (decision of the sole participant, minutes of the council directors (supervisory board)) on the election (appointment) of the general director.

Similar clarifications are contained in the letter of Rostrud dated September 22, 2010 No. 2894-6-1.

Situation: is it possible, when hiring a new manager, to combine his work with the departing manager to transfer affairs?

No impossible.

The responsibilities of the manager include managing the organization, including performing the functions of its sole executive body (Article 273 of the Labor Code of the Russian Federation). That is, there cannot be two leaders in an organization at the same time.

The specific procedure for transferring powers (cases) in the event of a change in the head of the organization should be fixed in advance in the statutory documents of the organization itself, the job description of the manager or his employment contract (Articles 57, 274 of the Labor Code of the Russian Federation). So, for example, in the section “Rights and obligations of an employee” of an employment contract with the head of an organization, the following clause may be included: “In the event of termination of the employment contract (both by agreement of the parties and unilaterally), the manager is obliged within ten working days after termination of the employment contract with him, transfer the affairs to the newly appointed manager (or the person performing his duties) in the manner established by the founder of the organization.”

Transfer to the position of director of an LLC de jure: general scenario

Of course, a scenario is possible, it can be conditionally called general, in which a current employee of the LLC will have a fixed-term employment contract for his position. In this sense, there will be no obstacles from the point of view of labor law to the appointment of this employee as General Director in the transfer procedure, which is regulated by the provisions of Art. 72.1 Labor Code of the Russian Federation.

This procedure involves:

1. The founders make a decision to appoint a new general director and reflect this decision in the minutes. If there is 1 owner of the company, then only a resolution issued by him will be required.

2. The conclusion by the company’s personnel service of an additional agreement with the employee regarding the transfer to the position of director (later in the article we will consider the nuances of concluding this agreement with the employee).

See a sample additional agreement to the employment contract on the transfer of an employee to the position of General Director of an LLC for a certain period in ConsultantPlus. Trial access to the legal system is free.

Assignment of probationary period

In some cases, by agreement of the parties, a clause establishing a probationary period is included in the employment agreement.

Important! According to the Labor Code of the Russian Federation, the duration of the trial period cannot be more than 6 months. The exception is cases when the registration of the general director occurs by transfer. A probationary period is not established for such employees.

When calculating the test period, the following periods are not taken into account:

1. period of illness;
2. being registered with the military;
3. implementation of public events;
4. absence of an employee from the workplace for other reasons.

Important! In accordance with the law, work performed by a candidate for a position during the probationary period is subject to payment on a general basis.

Legal transfer to de facto LLC: additional agreement on combination

If for some reason the trust scenario described above cannot be implemented, then the following option is possible: appointing a current employee of the LLC to the position of director of the company. He assumes that the personnel department in the scenario under consideration will ask the employee who wants to be made a director to sign:

• additional agreement - on combining the current position (for example, financial director) with the position of the head of the company for a certain period;
• additional agreement - on changing the terms of the current employment contract (for example, in terms of minimizing the powers of the financial director and changing salaries).

De jure, the employee will combine 2 positions, but de facto, he will work only in 1 of them (general director) with an indefinite employment contract.

The scenario under consideration is rather beneficial to the employer because:

1. If a person signs a second additional agreement (on minimizing powers in the main position), he will have to make every effort to be a good leader, since if the corresponding agreement is canceled (on the grounds provided by law), he will become a financial director with the same powers and he will no longer be able to earn a salary without the consent of the employer.

2. If a person does not sign the second agreement, then the employer will have reason to ask the employee for results for 2 positions at once - it is unlikely that they will be satisfactory given the seriousness of both positions. As a result, there will be grounds to terminate both agreements or even the employment contract as a whole.

How to draw up and from whom to sign an order for the appointment of a general director

Let's look at how to fill out an order for the general director.

Step 1. We write down the name of the employer (in our example, LLC), and specify the OKPO code, which is assigned upon registration of the enterprise. Step 2. Enter the number of the order being drawn up and the date of preparation. Step 3. Using the details of the employment contract, in the order we indicate the period during which the manager will perform duties, his personnel number, as well as his full name. in the genitive case. Step 4. We write down which department and position the employee is applying for. If there are any special features of the work, we also indicate this. Step 5. We write down what salary the new employee is entitled to, and if there are bonuses, theirs too. All data must be verified against the concluded employment agreement. Step 6. We specify the trial period (check, it cannot be more than 6 months, regardless of where the LLC is located - in Moscow or Chukotka). Step 7. We indicate the reasons for issuing the decision. The details of the employment contract must be included. In addition, information about the minutes of the general meeting of participants, the decision of the owner of the organization’s property, and other documents can be clarified here.

Step 8. We sign and familiarize the employee with the order. Since the general director and the employee in our case are the same person, the fields provided for signatures must be signed by the same person.

Combining positions: nuances

Russian legislation in most scenarios of intra-corporate legal relations does not imply any prohibitions on combining positions as a director. However, there are exceptions here, and one of those that you should pay attention to first of all concerns combining the positions of director and chief accountant (or other competent employee of the organization responsible for accounting).

The fact is that the director cannot simultaneously perform the function of the chief accountant (as well as vice versa - the chief accountant cannot be appointed director as part of a combination) at enterprises that have economic indicators exceeding those defined for companies:

• having the right to conduct simplified accounting (taking into account the criteria defined in paragraph 5 of Article 6 of the Law “On Accounting” dated December 6, 2011 No. 402-FZ);
• having the status of medium-sized businesses (taking into account the criteria defined in subclause 1.1, clause 1, article 4 of the Law “On the Development of Entrepreneurship” dated July 24, 2007 No. 209-FZ and the Russian Government Decree dated April 4, 2016 No. 265).

Thus, in a large company, the appointment of a chief accountant to the position of general director is possible only within the framework of mechanisms that do not involve combination.

You can learn more about the features of concluding employment contracts for combinations in the article “Registration of combining positions in one organization .

The powers of the general director of the LLC, the essence of the position

LLC is an organizational and legal form that is most suitable for representatives of small and medium-sized businesses. The founders of the company are persons who invested part of the funds in the authorized capital of the organization. Each of the participants in a given business entity has the right to receive dividends, the amount of which depends on the profitability of the enterprise and the size of the share.

The leading role in the activities of the company is occupied by the general director. This is the only representative of the company who has the right to act on behalf of the enterprise without a special power of attorney.

The position of General Director obliges the person holding it to act professionally and be extremely responsible. Quite high requirements are put forward for candidates, justified by the wide range of powers granted to the manager.

The functional responsibilities of the General Director include:

• exercising overall control over the company's activities;
• coordinating the activities of the company's divisions, ensuring the effective functioning of the entire staff as a whole;
• drawing up business plans for the enterprise, developing strategies aimed at developing the company, improving its activities;
• exercising control over the achievement of the enterprise’s goals and fulfillment of assigned tasks;
• checking document flow, implementing organizational measures;
• planning the company's budget;
• carrying out analytical and assessment activities to determine the true state of affairs.

Note! According to the law, an LLC can be founded if there is even one founder. In this case, he also holds the position of director. On the one hand, this situation simplifies the work of the manager, since he does not need to report to the founder of the company, and on the other hand, it requires him to take a more responsible approach to doing business, since we are talking about managing his own funds.

The main function of the general director is to exercise control over all areas of the enterprise's activities, so he needs to distribute responsibilities for performing secondary tasks among other representatives of the management team. And there are many of them in the company, for example, financial director, manager, commercial director.

Legal transfer to a de jure LLC: the role of the board of directors

The most, perhaps, labor-intensive, but the only one that allows for the transfer of an employee from an open-ended employment contract to the position of de jure general director (that is, in accordance with Article 72.1 of the Labor Code of the Russian Federation) is the vesting of the competence to determine the terms of office of the director of the company to the board of directors. .

First of all, a board of directors must be established in the organization: the decision to create it is enshrined in the company’s charter. The list of competencies of the board of directors is, as a rule, fixed in a separate regulation adopted by the founders. In this provision, in particular, there must be wording that the formation of the executive management bodies of the LLC is within the competence of its board of directors.

The board of directors has the right to adopt a regulation on the general director of the enterprise, which will reflect that the terms of office of the general director are determined by the employment contract, which can be fixed-term or indefinite.

Actually, for a transfer to the position of general director under a permanent employment contract, an additional agreement is again drawn up - this time on the transfer. This agreement is generally signed by the employer on the part of the chairman of the board of directors.

Transfer to the position of director of a joint stock company: nuances

How to formalize a transfer to the position of General Director, in turn, in a joint stock company?

Taking into account the specifics of the legislation regulating corporate and labor relations in joint-stock companies, it is legitimate to say that such enterprises do not have the difficulties that characterize the corresponding transfer to an LLC. The current rules of law regulating the establishment and activities of a joint-stock company do not in any way regulate how the term of office of a director should be determined. Thus, the founders of a joint-stock company can fix it not only in the charter, but also in any local regulatory act - for example, a decision on the appointment of a director.

It is worth noting that the board of directors of a joint-stock company, unlike the similar structure of an LLC, by default does not have those competencies that imply the establishment of the term of office of the director of the organization - these competencies are not listed in subparagraph. 9 clause 1 art. 65 of the Law “On JSC” dated December 26, 1995 No. 208-FZ.

Thus, in a JSC it is possible to establish the powers of the general director indefinitely. In this case, there are no obstacles to the transfer of an employee with an open-ended employment contract to the position of General Director of the JSC on the basis of Art. 72.1 Labor Code of the Russian Federation.

The essence of the position

The functions of the general director include overall control of the organization's activities.

In particular:

• coordination of the work of structural units (in a large enterprise) and organization of the functioning of the team as a whole;
• detailed planning of various indicators, development of a development strategy for a subordinate enterprise;
• monitoring the implementation of set goals;
• implementation and control of document flow and other organizational issues;
• Budget development and assessment of the situation.

And this is only a small part of what is included in the responsibilities of the general director.

If this position is occupied by the owner of the enterprise, which is not uncommon for small businesses, his fate is somewhat easier - there is no need to regularly report on the work done, or to fear dissatisfaction from senior management. But at the same time, financial responsibility increases significantly, because you have to manage your own capital.

One of the most important tasks for a general director is to learn how to distribute work and delegate part of the work to subordinates. Since the enterprise has a number of management positions, there may be several lower positions (for example, financial director, commercial director, etc.). With the correct assignment of responsibilities, the general director can relieve himself of solving many issues, leaving for himself only the controlling function of these problems.

Control is the main function of Rospotrebnadzor. Find out more about the powers of Rospotrebnadzor. The fight against offshore companies does not stop. Why?

Results

Transfer of an existing LLC employee to the position of director in accordance with Art. 72.1 of the Labor Code of the Russian Federation (that is, as a de jure transfer) is possible only if the employee is working on a fixed-term employment contract. If the original contract is indefinite, then the employee can be appointed director of the LLC when re-signing the employment contract, in a combination manner, or under Art. 72.1 of the Labor Code of the Russian Federation - if the board of directors of the company receives the competence to determine the term of office of the director. In JSC, the corresponding transfer can be carried out under Art. 72.1 of the Labor Code of the Russian Federation without any restrictions.

You can learn more about the nuances of processing a transfer within an organization in the following articles:

• “Order to transfer an employee to another position - sample”;
• “Sample order for transfer to remote work”.

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Application procedure step by step, requirements for candidates

To avoid imposition of a fine by regulatory authorities and to protect yourself from the possibility of hiring an unqualified manager, you must follow the registration rules prescribed in the Labor Code of the Russian Federation.

Requirements for a candidate

Thus, a candidate for the position of director of an LLC must meet a number of requirements:

1. the candidate has completed higher education. Most companies prefer economists and lawyers. If the company’s activities are related to the provision of specialized services, say, medical or technical, then it will need representatives of these industries;
2. having work experience. This requirement is not supported by legislative norms, but it has a right to exist, because without practical skills, so to speak, with sheer enthusiasm, it is unlikely that it will be possible to effectively manage a business company. To get the coveted position, you must have at least 3 years of experience in a management position;
3. no criminal record. This is especially true for persons convicted of committing economic crimes and who have restrictions regarding their occupation;
4. compliance with the age limit. Preference is given to candidates aged 30 to 50 years.

The presented list is not immutable and is subject to adjustment if necessary. The main thing is that the demands put forward do not contradict current legislation and in no way limit the right of citizens to work.

Note! The law does not provide for restrictions on gender, race or age. Moreover, an employer who refuses to hire a person due to non-compliance with any of the listed criteria faces legal liability.