Peculiarities of concluding a civil contract and its differences from an employment contract

Civil contract alternative to employment contract

Today, along with employment contracts, civil law contracts are also concluded between employees and their employers. In addition, such agreements are used in the process of settling relations between individuals and legal entities. Documents of this type clearly regulate the rights, duties and obligations of the parties, and also determine their liability in case of ignoring their terms.

It must be noted that the GPA agreement is concluded in strict accordance with civil law. In the process of considering controversial issues relating to other areas of law, civil legislation will take priority.

GPD - what is it

A written agreement between two or more parties on domestic and labor issues is a civil contract. The following agreements are concluded between the following participants:

• individuals;
• individual and legal entity;
• legal entities.

The main feature of such an agreement is its mandatory written form, the presence of all attributes that allow its parties to be identified, a clear description of the conditions, obligations, scope of work, services, actions and deadlines for their implementation. Depending on the type of agreement, they can be notarized.

Remember, the GPA agreement must clearly comply with the terms of civil law. If the parties go beyond its limits and try to limit each other’s rights and responsibilities, then in the future such an agreement can be considered void.

Therefore, in the process of drawing up such agreements, it is advisable to carry out their legal verification or analysis. So that in the future the other party will not be able to refuse with impunity its obligations for formal reasons.

The procedure for terminating the GPC agreement

There are two ways to terminate the GPA:

1. By mutual agreement of the parties. In this case, an additional agreement on termination of the contract is concluded (sample).
2. Through the court in case of violation of the terms of the contract by either party. In this case, the party initiating the termination of the contract and filing a lawsuit will have to take care of evidence of violations that caused its decision to terminate the contract.

The GPA can be terminated by concluding an additional agreement

Types and forms of GPA

Types and forms of civil contract

Considering the very wide scope of use of civil contracts, all of them can be conditionally divided into several basic groups. Here are the highlights:

1. Contracts related to property. This category includes all agreements that regulate issues of purchase and sale, delivery, exchange, donation, and other similar relations that determine the legal transfer of a thing or property from one owner to another.
2. Agreements under which any work or action is performed. For example, we should highlight a contract where one party undertakes to carry out the actions specified in the agreement within a certain period of time. The duties and obligations of the customer are also spelled out. This category includes agreements close to employment contracts.
3. Agreements under which certain services are performed. Here there are agreements on the transportation of goods, passengers, storage of things, property, goods, provision of insurance services, agency agreement and other similar actions.

They are drawn up exclusively in writing, certified by the signatures of authorized representatives (in some cases they may require notarization). The validity period of such documents is determined by the agreement itself.

Terms and procedure for storing GPC agreements with individuals

There is no consensus in organizations and enterprises regarding the storage periods for GPC agreements. Some experts believe that in this regard there is no difference between them and personnel documentation, which means their shelf life is the same - 75 years. Others, such as specialists from the Aktion International Center for Economic Development and Trade, argue that this requirement of the Ministry of Culture of the Russian Federation applies only to personal cards of employees, issued only for those working under an employment contract, and for GPC contracts, five years are enough.

A civil contract has remained a popular alternative to an employment contract for many years. By 2021, the situation has changed - the state began to monitor such “little tricks” more strictly and more often identify them on its own, without waiting for a dissatisfied executor to apply to the regulatory authorities or the court. But this does not mean that civil contracts should be avoided. It doesn't hurt to be careful, but it's also unnecessary to be afraid of them.

• Author: ozakone
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The main differences between a GPA and an employment contract

Considering that both labor and certain types of civil contracts stipulate that one party must perform certain actions in favor of the other and receive remuneration for this, these documents are often equated. But in fact, this should not be done, because they are based on different legal grounds.

To understand how such agreements fundamentally differ from each other, we suggest that you familiarize yourself with their main differences:

• under an employment contract, the employee receives a salary regardless of the final result and the availability of work performed;
• a civil contract provides for equality of the parties, while in labor relations there is a clearly defined hierarchy of positions;
• the essence of labor relations comes down to the employee’s constant fulfillment of the obligations stipulated in the job description, while civil contracts are focused on a specific end result;
• in labor relations there is a clear obligation of the employer to create normal working conditions for the employee, to provide tools, special clothing, and all necessary resources, and in civil relations these are the personal risks of the other party;
• under an employment contract, the employee is subject to the rules of arriving at work on time, following the established daily routine, and standard working hours, while in a civil contract such a rule is unnecessary (otherwise such a contract can be equated to an employment contract);
• an employee under an employment contract is obliged to fulfill the obligations assigned to him personally, and under a civil agreement the other party can delegate his obligations to the contractor;
• in labor relations, the employer is obliged to pay wages to the employee within the lines clearly specified by law, while under a civil contract, the payment of remuneration is regulated by the terms of the contract (usually upon completion of all or part of the work).

Remember, the main difference between employment contracts and civil contracts is that the terms of the former are regulated by the Labor Code, while the latter are subject to civil law.

What taxes and contributions are payable under a GPC agreement?

In terms of taxes, there are no differences between the GPA and the employment contract. As with wages, personal income tax is withheld from remuneration paid under a GPC agreement at the following rates:

• 13% for a tax resident of the Russian Federation;
• 30% for non-resident.

Whether a person is a resident or not is determined not by his citizenship, but by the time he spent in Russia over the past 12 months. If this period is not less than 183 days, we are dealing with a resident, and it does not matter whether he is a Russian, a foreigner or a stateless person. But if a citizen of the Russian Federation does not meet this criterion, he is a non-resident. However, in practice it is not always possible to determine whether a citizen of the Russian Federation is a resident. If he has registration at his place of residence in Russia and a Russian bank card on which he receives payments, and at the same time lives in Thailand or the Canary Islands, it is difficult to understand who you are dealing with.

But when concluding a GPA with a foreigner, it is necessary to take into account that he must have documents giving the right to stay and work in Russia for a long time: a work visa for those who need a visa to enter the country, a work permit, a patent for the right to work, permission for temporary residence or residence permit. And about each GPD with a foreigner or stateless person, you must notify your territorial unit of the Main Directorate for Migration Issues (GUVM) of the Ministry of Internal Affairs of the Russian Federation.

Personal income tax is withheld from the amount of remuneration under the GPC agreement. But contributions to the Pension Fund (PFR) and compulsory health insurance (CHI), as in the case of salaries, are paid in excess of this amount before deduction of personal income tax and amount to:

• 22% in the Pension Fund;
• 5.1% for compulsory medical insurance.

But there is no need to make contributions to the Social Insurance Fund to pay for sick leave and maternity leave, because these payments to individuals receiving benefits under the GPA are not due. The terms of the agreement may provide for contributions to the Social Insurance Fund for industrial injuries and occupational diseases. In this case, their rate is determined by the corresponding OKVED.

How to conclude a GPA correctly

The procedure for concluding a civil contract

Considering that in the process of resolving controversial issues when considering civil agreements, the priority is the terms of such agreements (if they do not contradict or go beyond the scope of legal norms), it is very important to carefully write out each clause of such an agreement.

The basic structure of the GPA should contain the following information:

1. Props part. It clearly states who the parties to the agreement are with reference to documents that allow identification of the identity and powers of the signatories.
2. Subject part. It is advisable to initially establish what the parties are agreeing on, so that later there will be no ambiguous interpretations of the essence of further actions.
3. Basic performance indicators. Here it is advisable to indicate what will need to be done, the level of quality, what time frames are allocated for this, what result the contractor must deliver to the customer in the end.
4. Responsibilities and rights of the parties to the agreement. These sections (blocks) should describe in detail what the parties undertake to do in relation to each other to implement the terms of the agreement, and how the final result will be accepted.
5. Contract price. Actually the key section. Therefore, it is necessary to clearly indicate when and for what the customer will pay the contractor a fee, write down its amount, and the documents that will be drawn up as confirmation.
6. Confidentiality. Typically, the parties initially agree that the terms of such an agreement should not become available to third parties or the public. After all, no one has canceled competitors, and few people want to suffer losses due to information leakage (both from the contractor and the customer).
7. Responsibility of the parties. If there are obligations, then there must be sanctions for non-fulfillment. They are prescribed in this section within reasonable limits (in accordance with the norms provided for by civil law).
8. Force majeure circumstances. It wouldn’t hurt to add such an item or section. Quite often, the parties cannot fulfill their obligations for objective reasons. And it is advisable to agree on this from the beginning.
9. Final provisions. Typically, the duration of the contract, terms of renewal, resolution of controversial issues, early application, as well as the requisite part are prescribed.

The procedure for changing the GPC agreement

No GPC agreement is immutable; it can be revised at any time during its validity period either by mutual agreement of the parties or by the sole decision of one of them, if such a possibility for specific cases is specified in the terms of the agreement.

If both parties agree to change the terms, they enter into an additional agreement. The document contains the names, addresses and details of the parties. It is sealed with signatures, and if either party has a seal, then so does it. The text sets out exactly which provisions are no longer in force and under what new conditions cooperation will continue. The deadline for when the new version of the agreement comes into force must be specified. This can be either the moment of signing or a later date agreed upon by the parties and reflected in the agreement.

In the additional agreement it is enough to indicate which points are changing

While working on one of the books under an author's contract with a publishing house, I did not meet the two months initially allotted to me and asked for another month to complete work on the manuscript. Since the publisher did not object, we signed an additional agreement to extend the contract by a month.

What guarantees of an employment contract are not provided for by the GPA?

Advantages of an employment contract over a civil law one

Considering that the legislator has provided for significant penalties for substituting concepts in the GAP relating to labor agreements, it is advisable to consider what is not included in these types of contracts, and how such norms affect the level of social protection of the employee himself.

Labor legislation, in contrast to civil law, provides for a number of benefits for the employee that determine the basis of labor relations. The following points stand out here:

• guaranteed wages at least twice a month;
• payment for the period of temporary disability (job is retained, sick leave is fully paid);
• if personal property (for example, a car) is used in the course of work, the employer reimburses the employee for the costs of its maintenance or operation;
• for those who are receiving education, it is possible to take out additional paid leave while maintaining their job;
• in the event of early termination of the contract at the initiative of the employer, the employee is entitled to compensation payments and other guarantees in the process of new employment;
• if an accident occurs during the performance of work due to the fault of the enterprise, all further compensation for damage and payment of compensation to the employee will be carried out by the employer;
• for the entire period of pregnancy and childcare, the employer is obliged to maintain a workplace for the employee;
• When an employee goes on a business trip, all associated expenses are borne by the employer.

Remember, if such norms are included in the agreement between the customer and the contractor, the contract can be reclassified from a civil law contract to a labor contract in court.

Advantages and disadvantages for each side

Let's leave the issue of legality out of the equation - we will proceed from the fact that in a certain situation the employer has good reason to enter into a civil law agreement with a person instead of a labor one. Let's look at the pros and cons of each of these types of agreements for the employer and the person hired.

Employment contract

The advantages of an employment contract for an employee are:

1. Social guarantee package . For example, sick leave, annual paid leave, as well as leaves without pay, in case of study, for child care. Full-time employees receive all the allowances established by internal regulations - bonuses, compensation, and so on.
2. Labor legislation protects the employee from unlawful actions of the employer . He cannot simply terminate the employment contract on his own initiative. There must be a reason - the desire of the employee, the agreement of the parties, the employee’s violation of internal regulations, his labor incompatibility and some others. If there is a reduction in staff or working hours, the employee will not be left completely without income.
3. An employee on staff can count on career growth.

What if an employment contract has disadvantages for an employee? In general, only one thing can be noted - in practice, he is placed in a dependent position on the employer (as they say, “working for his uncle”). He must comply with internal regulations, fulfill the labor standards established for him, and go on vacation when the employer allows. And he does not even have the right to resign without warning about it in advance.

But for the employer, there are much more disadvantages in an employment contract than advantages. The advantages can include the same thing that is a disadvantage for the employee. Namely, that in labor relations the employer has more power. He requires employees to comply with their job responsibilities and internal regulations. And if one of them does not comply, the employer can take disciplinary action against him, up to and including dismissal.

Among the disadvantages of an employment contract for an employer, we note the obligation to comply with strict labor legislation:

• adhere to the rules for paying wages (the amount is not lower than the minimum wage, payment is made at least once every 2 weeks);
• guarantee various benefits, additional payments and compensations that are established in the Labor Code of the Russian Federation;
• guarantee the provision of various types of vacations, as well as other exemptions from work required by law;
• perform various duties related to safety - special assessment of working conditions, safety instructions;
• keep personnel records for each employee and others.

Categories

In the process of carrying out their financial and economic activities, organizations and individuals use the labor of hired workers and each employer must decide how personnel will be hired. The employer has two options
for formalizing labor relations:
· by concluding an employment contract with an individual (enrollment);

· by concluding a civil law agreement with an individual (contractor agreement, paid service agreement, agency agreement, author’s agreement, etc.).

In any case, the agreement must comply with the rules obligatory for the parties, established by law or other legal acts in force at the time of its conclusion. Relations with employees and other persons involved in the current activities of the organization must be formalized based on the actual content of the labor functions, works or services they perform.

In recent years, there has been a tendency to conclude civil contracts with employees, which are considered as a profitable alternative to employment contracts. This applies mainly to small companies and private firms acting as employers. Their purpose in this case is obvious: the set of obligations of the employer to the person who works for him under a civil contract is significantly less than to the person with whom the employment contract is concluded. Accordingly, an employee who works on the basis of a civil contract costs the employer much less. This gives rise to legal disputes, the essence of which lies in the demands of workers to retrain a civil law contract into an employment contract.

Therefore, the question of the correct distinction between an employment contract and a civil law contract that has some similarities with it still remains relevant. If before the adoption of the Labor Code of the Russian Federation there were Recommendations on the distinction between employment contracts and related civil law contracts, approved by the letter of the Social Insurance Fund of the Russian Federation dated May 20, 1997 No. 051/160-97, now the requirements for the distinction between employment and civil contracts in the legislative order, in addition to the specified document, are enshrined in Art. 11 Labor Code of the Russian Federation. Let us consider the concept of the above agreements, their similarities and differences.

Features of concluding labor and civil contracts

In accordance with Art. 56 of the Labor Code of the Russian Federation with 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 a specified labor function, to ensure working conditions provided for by law, collective agreements, agreements, local regulations containing labor law standards, to pay him wages on time and in full payment, and the employee undertakes to personally perform the labor function determined by this agreement and comply with the internal labor regulations in force in the organization.
The parties to the employment contract are the employer and the employee
.

The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy is given to the employee, the other is kept by the employer (Part 1 of Article 67 of the Labor Code of the Russian Federation).

According to Art. 420 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation) by civil law agreement

An agreement between two or more persons to establish, change or terminate civil rights and obligations is recognized. Civil contracts, on the basis of which individuals are most often attracted to participate in the current activities of the organization, include contract (Chapter 37 of the Civil Code of the Russian Federation), paid provision of services (Chapter 39 of the Civil Code of the Russian Federation), assignment (Chapter 49 of the Civil Code of the Russian Federation) , commission (Chapter 51 of the Civil Code of the Russian Federation), agency (Chapter 52 of the Civil Code of the Russian Federation).

Let's consider the most common contract agreements and paid services agreements.

Article 702 of the Civil Code of the Russian Federation defines the contract

as an agreement under which one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver the result to the customer, and the customer undertakes to accept the result of the work and pay for it. The customer is on the employer's side, and the contractor is on the employee's side.

The concept of a contract for paid services

is defined in Art. 779 of the Civil Code of the Russian Federation, according to which the contractor undertakes to provide services on the instructions of the customer, i.e. perform certain actions or carry out certain activities, and the customer undertakes to pay for these services. In this case, the customer is on the employer’s side, and the contractor is on the employee’s side.

When concluding a civil contract, the parties must:

· determine the specific type of work or nature of the service to be performed;

· provide the exact amount of remuneration or the procedure for determining it;

· set deadlines for completing work or services.

The final result of work or provision of services is determined in a bilateral act of acceptance of work (services). Settlements under these agreements are made based on the results reflected in this act.

When concluding civil contracts, the employer should take into account that certain types of work (services) can only be performed on the basis of a license. The types of activities subject to licensing are defined in the Federal Law of August 8, 2001 No. 128-FZ “On licensing of certain types of activities”

.

Let us conduct a comparative analysis of an employment contract and a civil law contract using the example of a work contract and a contract for paid services.

Distinctive features of employment and civil law contracts

At first glance, an employment contract and a civil contract are very similar. In both cases, one of the parties to the contract (employee or performer/contractor) performs work for which the employer (customer) pays remuneration. However, this similarity is only external, since the legal status of the parties to these agreements is completely different.

Relations between the parties are regulated by various regulations.

If, within the framework of an employment contract, the relationship between an employee and an employer is regulated in accordance with the Labor Code of the Russian Federation, then relations arising from a civil law contract are regulated in accordance with civil law.

Relationships of the parties to the contract

In labor relations, the employee and the employer are in a relationship of subordination: the employee occupies a subordinate position in relation to the employer (although his position is based on the free expression of the citizen’s will when concluding an employment contract) (Article 2 of the Labor Code of the Russian Federation). Therefore, labor legislation limits the power of the employer, protecting the employee from possible arbitrariness and providing him with a number of social guarantees when concluding and terminating an employment contract (Article 64, Article 130, Article 165 of the Labor Code of the Russian Federation).

The law considers participants in civil legal relations to be equal in their rights (there are no relations of power and subordination between them) and legal capabilities, without assigning additional responsibilities to any of them and without giving any of them any advantages both at the time of concluding the contract and during the process of its execution (Article 421 of the Civil Code of the Russian Federation).

Subject and purpose of the agreement

According to the employment contract, the subject is the labor process itself, namely: performing work in a certain specialty, qualification, position, i.e. performance by an employee of a certain labor function. When performing work under an employment contract, it is difficult to identify the individual final result of an employee’s work, therefore the employee’s labor function, as a rule, is not aimed at achieving any final result (although final results can be achieved in the process of work). However, the final result of the work is not the purpose of the employment contract and does not entail its termination in connection with the achievement of this result, with the exception of employment contracts concluded with persons hired to perform a clearly defined work in cases where the implementation (completion) of this work cannot be determined a specific date (Article 59 of the Labor Code of the Russian Federation), and terminated upon completion of this work on the basis of an act drawn up in form No. T-73.

Under a contract or paid service agreement, the contractor/performer must complete an individually specific task

. In this case, the subject of the contract is the final result of the work, i.e. performance by the contractor/performer of predetermined work aimed at achieving a specific result specified in the contract, and the achievement of such a result entails termination of the contract. Moreover, what is important is the result of the work itself, and not the means by which it is achieved. Therefore, performing certain work under a civil contract is only a way to achieve the result stipulated by the contract.

Forms and remuneration

According to the employment contract, the employee’s remuneration is guaranteed and is made regularly, at least every half month and on the day established by the organization’s internal labor regulations, a collective agreement, an employment contract (Article 136 of the Labor Code of the Russian Federation), based on the salary established for him, the tariff rate and the existing the employer has a remuneration system. An employee has the right to receive wages in any case, regardless of whether there is work or not; the employee’s payment does not depend on a specific result and is conditioned by the arrival of the next payment deadline (calendar date). In Art. 133 of the Labor Code of the Russian Federation also establishes the minimum wage

, it cannot be lower than the subsistence level of an able-bodied person.
The conditions for remuneration of an employee
are one of the essential conditions, therefore they must be reflected in the employment contract (Article 57 of the Labor Code of the Russian Federation).

Under a contract/paid service agreement, the price of the work/service performed and the procedure for its payment are determined, as a rule, by agreement of the parties (Article 424 of the Civil Code of the Russian Federation) and do not depend on the employer’s remuneration system. Payment for labor is usually made after completion of the work, subject to its high-quality performance. To confirm the validity of payments under a contract/paid services, it is necessary to issue a bilateral written acceptance certificate for the results of work or services

(Article 720 of the Civil Code of the Russian Federation), and if the expenses are large, draw up
an estimate
or
calculate their cost
(Article 709 of the Civil Code of the Russian Federation).
The issuance of an advance payment, permitted by civil law, does not change the nature of such contracts, since the final payment is always made after delivery of the results of work to the customer, and the advance payment issued can be returned to the customer in case of an unsatisfactory result. In addition, as follows from Art. 709 of the Civil Code of the Russian Federation, the price of work in a work contract is not one of its essential conditions.
Conditions for performing work under the contract

According to the employment contract, the employee is obliged to perform his labor function personally, on his own - this is one of the essential terms of the contract (Article 56 of the Labor Code of the Russian Federation). But it is the employer's responsibility to provide the materials and facilities necessary for the employee to do the job.

Under a contract/paid services agreement, the contractor/performer independently determines the methods and methods of fulfilling the order and has the right to involve other persons (subcontractors) in the performance of their obligations (Article 706 of the Civil Code of the Russian Federation). According to the general rule of Art. 704 of the Civil Code of the Russian Federation, the contractor/performer performs the work at his own expense, i.e. from your own materials, with your own forces and means, although the contract may include a condition on the use of the customer’s materials and tools.

Procedure for applying for a job

Based on the employment contract

the employer issues
an order to hire the employee to the organization’s staff
(Article 68 of the Labor Code of the Russian Federation).
In the personnel service, a personal card
in form No. T-2 and an entry is made
in the work book
, which subsequently contains information about all his appointments and movements in this organization and dismissal (Article 66 of the Labor Code of the Russian Federation). Even if the employment contract is not properly drawn up, it is still considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative. When an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three days from the date of such admission (Article 67 of the Labor Code of the Russian Federation). It should be noted that labor relations arise between an employer and a citizen from the moment the latter is actually admitted to work, regardless of whether an employment contract has been drawn up (Article 16 of the Labor Code of the Russian Federation).

Under civil law contracts, the relationship between the customer and the contractor/performer is considered properly formalized only if they have signed a contract agreement or an agreement for the provision of paid services. In this case, hiring is not carried out and, since there are no labor relations in this case, no entry is made in the work book.

Work and rest schedule

A characteristic feature of an employment contract is the employee’s subordination to labor discipline, internal labor regulations (Article 21 of the Labor Code of the Russian Federation), orders of the employer and the provision by the employer of working conditions provided for by law.

Internal labor regulations are a mandatory document for the employer, which regulates the procedure for hiring and dismissing an employee, the basic rights, duties and responsibilities of the parties to the employment contract, working hours, rest periods, incentives and penalties applied to employees, as well as other issues regulating labor relations. in the organization (Article 189 of the Labor Code of the Russian Federation).

The contractor/performer is not obliged to obey the internal labor regulations of the customer, who has the right only to check the progress and quality of the work performed by the contractor/performer, but does not have the right to interfere with his activities. Under civil law contracts, the parties have equal rights and the employer is not obliged to provide the contractor/performer with proper working conditions, as for his employees. The customer should not be interested in how many hours a day the contractor works, in what conditions, whether he gets enough rest, whether doing such work is harmful to his health, whether he uses safe working conditions, etc. The customer only cares about the result of the work.

Contract time

In accordance with Art. 58 of the Labor Code of the Russian Federation, an employment contract is concluded with an employee for an indefinite period. For a specific period, which cannot exceed five years, an employment contract is concluded only in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, as well as in other cases specifically provided for by federal law. A number of such cases are listed in Art. 59 Labor Code of the Russian Federation.

The work contract cannot be concluded for an indefinite period, since, according to paragraph 1 of Art. 708 of the Civil Code of the Russian Federation, the essential terms of the contract are the initial and final deadlines for the work. Consequently, in their absence, the contract is considered not concluded.

Right to vacation

An employee under an employment contract after six months of continuous work in this organization (Article 122 of the Labor Code of the Russian Federation) is guaranteed annual paid leave with preservation of his place of work (position) and average earnings (Article 114 of the Labor Code of the Russian Federation) lasting at least 28 calendar days (Article 115 of the Labor Code of the Russian Federation). For some categories of employees, annual additional paid leave is also provided (Articles 117, 118, 119 of the Labor Code of the Russian Federation).

A woman working under an employment contract in accordance with Art. 255 of the Labor Code of the Russian Federation provides maternity leave; at her request (Article 256 of the Labor Code of the Russian Federation) - leave to care for a child until he reaches the age of three years. She retains her job during the period of maternity leave.

Under civil contracts, the contractor/performer does not have the right to annual paid leave. If a citizen working under a civil contract decides to rest after completing work, then he will do this at his own expense, since the employer’s responsibilities do not include providing and paying him vacation pay. The contractor's rest is possible in the case when the work is completed ahead of schedule, but has not yet been handed over according to the acceptance certificate, or the contract has been completed and a new one has not yet been concluded. There is no provision for providing the performer with maternity leave and child care leave.

Payment for temporary sick leave

In case of temporary disability, the employer pays the employee temporary disability benefits (Article 183 of the Labor Code of the Russian Federation), and also pays sick leave for pregnancy and childbirth to a woman working under an employment contract.

Under civil law contracts, this does not happen, since the customer does not make insurance contributions to the Social Insurance Fund of the Russian Federation (FSS RF), since the tax base in terms of the amount of tax payable to the FSS RF does not include remunerations paid to individuals under civil law. -legal agreements (clause 3 of article 238 of the Tax Code of the Russian Federation).

Risk of failure to complete work

According to the employment contract, the employee does not bear the risk associated with the performance of his work; the risk of non-fulfillment of the work lies with the employer. If an employee has not fulfilled labor standards (job duties) due to the fault of the employer, then he is paid for the actual time worked or work performed, but not less than his average salary calculated for the same period of time or for work performed. If the reason for non-compliance does not depend on either the employer or the employee, the employee retains at least 2/3 of the tariff rate (salary). In case of failure to comply with labor standards (job duties) due to the fault of the employee, payment of the standardized part of the salary is made in accordance with the volume of work performed (Article 155 of the Labor Code of the Russian Federation).

When defective products are manufactured through no fault of the employee, they are paid on an equal basis with good products; partial defects due to the fault of the employee are paid at reduced rates. Complete defects due to the fault of the employee are not subject to payment (Article 156 of the Labor Code of the Russian Federation).

In Art. 157 of the Labor Code of the Russian Federation defines payment for downtime. If the employee warned the employer in writing about the start of downtime, which occurred due to the employer’s fault, then he is paid at least 2/3 of his average salary; in the case where the reason for the downtime does not depend on either the employer or the employee, and the employee notified the employer in writing about the start of the downtime, then the employee is paid at least 2/3 of the tariff rate (salary). Downtime caused by the employee is not paid.

Article 158 of the Labor Code of the Russian Federation provides for the retention of the employee’s previous salary when developing a new production.

From all of the above, it is clear that in any case, the employer pays the employee to a greater or lesser extent for work not completed or not fully completed, and only complete defects and downtime due to the fault of the employee are not subject to payment.

Under a civil contract, the risk of non-fulfillment of work lies with the contractor/performer. He organizes the work at his own discretion and is fully responsible for improper fulfillment of the terms of the contract:

· reimburses the costs of materials if they were purchased by the customer;

· returns the advance in full if it was issued;

· if preliminary payments under the contract are defined as a deposit, then the contractor returns it in double amount (Part 2 of Article 381 of the Civil Code of the Russian Federation).

Responsibility for life and health

In accordance with Art. 37 of the Constitution of the Russian Federation, the Labor Code of the Russian Federation establishes the right of workers to work that meets safety and hygiene requirements, and assigns responsibilities for ensuring them to the employer. In Art. 219 of the Labor Code of the Russian Federation clearly states what an employee has the right to. At the same time, it is emphasized that the state guarantees workers the protection of their right to work in conditions that meet labor protection requirements (Article 220 of the Labor Code of the Russian Federation). Responsibility for the life and health of the employee lies with the employer, who is obliged to provide the employee with healthy and safe working conditions.

In work with harmful and (or) dangerous working conditions, the employer is obliged to provide the employee with personal protective equipment (Article 221 of the Labor Code of the Russian Federation), employees are given milk or other equivalent food products free of charge according to established standards, and in work with particularly harmful working conditions they are provided free of charge according to established standards. standards for therapeutic and preventive nutrition (Article 222 of the Labor Code of the Russian Federation).

Providing sanitary, medical and preventive services for workers in accordance with labor protection requirements is the responsibility of the employer (Article 223 of the Labor Code of the Russian Federation).

In Art. 224 of the Labor Code of the Russian Federation provides additional labor protection guarantees for certain categories of workers. For example, employees who need easier work due to health reasons are required by the employer to transfer to another job in accordance with a medical report and with appropriate payment.

The Civil Code of the Russian Federation does not provide for the concept of “labor protection”. Therefore, under a contract/paid service agreement, concern for working conditions, one’s health and life rests entirely with the contractor/performer (he performs the work at his own risk and can insure this risk himself with any insurance company).

What are the risks of substituting labor relations?

If the court recognizes the relationship as labor, the employer is obliged from the date of conclusion of the civil contract or the date the contractor actually began his duties to fulfill all the guarantees provided for in Art. 22 of the Labor Code of the Russian Federation, such as: conclude an employment contract, exercise the right to use ungranted annual paid leave, to receive any additional payments related to work in harmful or dangerous conditions for the entire period of work under a civil law contract, subsequently recognized as an employment contract.

An employment contract must be concluded no later than three working days from the date of recognition of these relations as labor relations (Part 2 of Article 67 of the Labor Code of the Russian Federation). Another deadline may be set in the text of the court decision.

In addition, for the substitution of legal relations, the employer may be held liable under Part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation (administrative fine for officials in the amount of ten thousand to twenty thousand rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from five thousand to ten thousand rubles; for legal entities - from fifty thousand to one hundred thousand rubles ).

But what if it’s a civil contract?

Dear employers! In the event that your relationship with the recruited personnel is truly not of a labor nature, but is of a civil law nature, follow the recommendations below to formalize them legally.

1. When concluding a contract, make sure that there is no vacant position in the staffing table, the performance of job duties for which can be comparable to the work performed under a civil contract.
2. Clearly formulate the subject of the contract, focusing on specifics in the results of work or services. The text of the civil law contract should not contain any overlap with the job descriptions of employees.
3. Keep records under the contract: acts of acceptance and delivery of work, services with a detailed description of the work performed, services provided.