Employment contract with the director of LLC 2021 and 2021

The question of the need/possibility of concluding an employment contract with the director, who is the sole founder (participant) of the organization, has not received a single official answer for several years now.

Moreover, the Ministry of Finance, Rostrud, off-budget funds and courts argue opposing points of view, citing legislation, which does not prevent them from changing their opinion after some time. We decided to help you dot the i’s and give arguments in defense of both one and the other point of view.

Position of director of the organization

A director is the head of a small company or a huge corporation. This is an individual who assumes the powers of the executive body of an organization, regardless of its size. The position of a manager is not always called “director”. The agreement may include other titles: president of the company, head of the corporation, general director. It is important that the name in the contract sounds the same as in the company’s constituent documents. The number of executives employed by the organization and responsible for various technical and production areas may consist of two or three persons. In this case, managers of narrower areas obey the orders of higher management (usually the general manager).

For what period is the contract concluded?

Typically, an employment contract is for an indefinite period - this applies not only to the director. Only employment agreements that are temporary in nature have a term. For example, when a specialist is hired to replace an employee who has been absent for a long time. In this case, the period is determined by agreement of the parties and in accordance with the constituent documents of the employer. The contract must indicate why it is urgent. The maximum period for which a fixed-term employment contract can be concluded is 5 years.

Who signs the employment contract with the director?

In addition to the appointed or elected manager, the agreement must be signed by a representative of the employing company. The question arises, who exactly should take on this function? According to Federal Law 14 and Federal Law 208, there is a direct dependence on the way in which the manager receives the position:

if he was elected at a meeting of participants or shareholders of the company, the agreement is signed by the chairman of the meeting or a person authorized by the meeting;
if he is elected by the council, then the chairman of the council or a person authorized by the council;
if he was appointed by the only founder, then the founder signs the agreement even if he is appointed to the position.

Sample of a fixed-term employment contract with the general director of an LLC

Sample of an open-ended employment contract with the general director

Sample employment contract with the director of an LLC

Sample employment contract with the director of an LLC - the sole founder

Sample employment contract with the executive director of LLC

Sample employment contract with the director of the branch

Sample employment contract with commercial director

Sample employment contract with technical director

Sample employment contract with financial director

Sample employment contract with development director

Sample employment contract with customer relations director

Sample employment contract with Deputy General Director

Sample employment contract with the director of the printing house

Sample employment contract with the director of the Housing and Public Utilities Management Company

Sample employment contract with the director of a travel agency

Sample employment contract with the school director

Sample employment contract with a hotel director

conclusions

The CEO of a company is a leadership position that can be held by either an ordinary employee or the founder of the company. The situation in which the manager is also the sole owner of the enterprise is no exception.

The legislative documentation does not contain clear information regarding the need to draw up an employment agreement with the director, who is the sole founder of the company. Despite this, experts recommend drawing up an agreement in all cases, because having a document will help avoid a number of issues.

If the general director is the owner of the enterprise, he signs the agreement for both the employee and the employer. If there are several founders, the chairman of their meeting puts his signature as the employer in the agreement.

Registration of a director - the sole founder: a brief history of the issue

The question of whether it is necessary to conclude an employment contract with the director, the sole founder of the organization, has been the subject of constant debate for more than twenty years. Let us briefly recall how the position of officials and legislators changed (for more details, see “Is it possible not to pay a director’s salary: new facts, previous conclusions”).

In 2002, a provision appeared in the Labor Code of the Russian Federation stating that written employment contracts must be concluded with all employees, without exception. It followed from this that if the company’s staff list includes the position of director, then an employment contract must be drawn up with him.

But in a situation where the director was also the sole founder of the company, the conclusion of such an agreement raised questions. As a result, Rostrud issued letter No. 2262-6-1 dated December 28, 2006, in which it indicated that the sole founder cannot be an employee of the organization. The department referred to Article 273 of the Labor Code of the Russian Federation, which states that the features established by the Labor Code for regulating the work of the head of an organization do not apply to the director, who is the sole founder. Therefore, the letter said, there is no need to conclude an employment contract with such a director. A similar point of view was expressed by the Ministry of Health and Social Development in letter dated 08.18.09 No. 22-2-3199.

But this approach soon enough led to the cessation of income to extra-budgetary funds from payments in favor of such managers. Therefore, the Ministry of Health and Social Development, in letter No. 428n dated 06/08/10, stated that in any case an employment contract is concluded with the director, even if he is the only founder. The ministry justified its new approach by the fact that only in this way can the manager be provided with social and labor guarantees.

In 2011, legislators noticed the described problem and tried to solve it by amending the laws on social insurance. They directly indicated that managers who are the only participants (founders) of organizations belong to the category of insured persons (clause 1, part 1 and part 5, article 2, article 13 of the Federal Law of December 29, 2006 No. 255-FZ , paragraph 2, paragraph 1, article 7 of the Federal Law of December 15, 2001 No. 167-FZ, paragraph 1 of Article 10 of the Federal Law of November 29, 2010 No. 326-FZ).

True, these amendments were not very successful, since managers were not mentioned as a separate item, but were included in the general list of insured persons as follows: “those working under an employment contract, including heads of organizations who are the only participants (founders).” That is, instead of solving the problem, the amendments actually gave reason to believe that managers - the only founders - have the opportunity to choose: work under an employment contract and receive social protection, or not draw up a contract and not receive pensions and benefits.

Rostrud made the next move again. In letter dated 03/06/13 No. 177-6-1, officials again indicated that an employment contract with the manager - the sole founder - is not concluded. The rationale is this. An employment contract is an agreement between an employer and an employee, that is, a bilateral act. If one of the parties to the employment contract is absent, it cannot be concluded. The only participant in the organization must, by his decision, assume the functions of a manager, without concluding any contract, including an employment contract.

Responsibility

The director, as a person making management decisions, bears financial responsibility. This is regulated by Article 277 of the Labor Code of the Russian Federation. There are no requirements to specify the corresponding provisions in the contract, but for information they can be included in it. Liability arises regardless of the presence of such provisions in the employment contract or the conclusion of an additional agreement on financial liability with the director. It occurs for damage or theft, as well as for losses caused by the actions or inaction of the manager.

Comment on the rating

Thank you, your rating has been taken into account. You can also leave a comment on your rating.

Is the sample document useful?

If the document “Contract with the director of the enterprise (option)” was useful to you, we ask you to leave a review about it.
Remember just 2 words:

Contract-Lawyer

And add Contract-Yurist.Ru to your bookmarks (Ctrl+D).

You will still need it!

What to pay the founder-manager: salary or dividends

So, we have established that it is still necessary to conclude an employment contract with the manager - the sole founder. And if an employment relationship is formalized, then the employer must pay the employee wages (Art., Labor Code of the Russian Federation). The condition of remuneration is a mandatory condition of the employment contract (Article of the Labor Code of the Russian Federation). Thus, the absence of wage accruals in the presence of a concluded employment contract is a violation of labor legislation, which is punishable by at least an administrative fine (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

At the same time, it would be incorrect to say that the reward for a manager’s work may not be wages, but dividends. The fact is that a participant in an LLC has the right to dividends regardless of whether he manages the company or not (clause 1, article 8, clause 2, article 28 of the LLC Law). This means that dividends cannot be a substitute for wages.

Introductory information

The situation when a company is headed by its “founding father” is not uncommon in practice. Moreover, often such a manager is ready to perform his functions without receiving a monthly salary. There can be many reasons for this. There is a banal lack of funds, a desire to save on taxes and contributions, and simply a reluctance to “bother” with additional accounting and personnel issues. Unfortunately, regulatory agencies also play a significant role in this approach; they cannot decide whether the director, the sole founder, needs an employment contract. So such a manager works without a salary and an employment contract. But how safe is this approach for the company?

Specifics of the contract content

A specific question that arises in the process of concluding an employment contract with the general director is who should do this. If we consider the contracts of ordinary employees, then this function is assigned precisely to the manager. But the second party is a legal entity. The manager’s relationship with him is based on the regulations established by labor legislation. The content of the contract has its own characteristic features, which the personnel service must take into account.

Key Points

The employment contract with the general director of the LLC contains all the key points provided for for this type of document by the Labor Code of the Russian Federation. This is a commercial organization whose activities are aimed at increasing sales and income in the process. Therefore, the manager is necessarily vested with the following powers:

Disposal of property.
Organizational personnel management.
Selection of people for staff and dismissal of employees.
Resolving organizational issues with the founders of the LLC.
Protection of interests before third parties and partners.

Mandatory items are the details of the parties, allowing them to be identified, in the “header” the place and date of signing the contract. The more detailed the job responsibilities are, the fewer controversial issues will arise later. The body of the contract also contains information about wages, compensation, a probationary period, if provided, and a clause on financial liability.

Important nuance

A very important question is who signs the employment contract with the director of the LLC. There is a direct indication of this in Article 40 of the Federal Law “On LLC”. The chairman or one of the members of the constituent assembly acts on behalf of the organization, if he has the authority to sign such documents. To avoid any controversial issues later, it will be necessary to give one of the founders the right to sign on such papers in a separate chapter in the decision to establish the company.

Duration of the contract

When hiring a general or executive director, the founders must stipulate the duration of the contract. If it is not established in a separate clause, then technically it is considered unlimited. But most often the limits defined by the LLC Charter are taken into account, for example, 3 years. It should be remembered that the time period also cannot be longer than that provided for this position by the Labor Code of the Russian Federation, that is, 5 years.

Work schedule

The employment contract with the director of the LLC contains a separate section dedicated to the working hours. It specifies the length of the week, which should not exceed 40 hours. Weekends are set as a general rule - Saturday, Sunday or individually, depending on the specifics of the company's work. The following points are also provided:

Availability of breaks for rest and lunch.
Holidays are determined in accordance with the Production Calendar, which is approved every year by the Government of the Russian Federation.
In case of production necessity, the employee and his deputies are called to work.

If the director does not have a full-time job, then it is extremely important to indicate the beginning and end of the day, with a break for meals. The employee must sign the agreement only if he agrees with the established schedule.

Confidentiality

In the process of performing his direct duties, the general director is forced to use secret data, deal with trade secrets, technology or innovative solutions, information of national importance (in the case of non-profit organizations). By signing an employment contract, the employee undertakes to keep all such information confidential and not to disclose information about the company’s partners or clients.

A separate clause defines the period during which the director can be held accountable if he declassifies information. For example, 5 years after termination of the agreement. The employee is also prohibited from making copies or transferring documents to third parties without the special permission of the founders. All results of the director’s work are the property of the LLC.

Terms of payment

The CEO of a company or regional division receives a monthly salary, which is an incentive for his activities. As incentives, bonuses and motivational payments are provided for achieving certain results. His high position also allows him to count on an expanded social package. The salary is issued after deduction of all taxes and contributions. The manager, like all main personnel, must receive an advance and the balance twice a month.

The employment contract stipulates the mandatory part of payments and additional remuneration in case of achieving a financial result or an established plan. The method of issuing funds is indicated, usually this is a transfer through a bank account, but it is also possible to receive cash at the cash desk. Allowances, additional payments and bonuses are accrued on the basis of one-time orders.

It is important to know! When a manager receives a salary exceeding 25% of the value of the company's assets, the mandatory consent of all founders is required.

Calculation of insurance premiums and reporting: are there any options?

We will separately dwell on the question of whether it is necessary to accrue insurance premiums for payments to the director - the sole founder and to include information about him in the reporting on contributions. Naturally, in the case when the manager is paid a salary on the basis of an employment contract, it is necessary to calculate insurance premiums and provide personalized information. But in practice there are situations when the above question is not so clearly resolved. Let's consider such situations.

The first situation: an employment contract has not been concluded with the director and no payments are made in his favor (except for dividends).

In this case, it is obvious that the obligation to pay insurance premiums does not arise, since there is no taxable base (clause 1 of Article 419 of the Tax Code of the Russian Federation).

As for the presentation of reports, it must be taken into account that, according to the position of the Ministry of Finance of Russia (letter dated June 18, 2018 No. 03-15-05/41578), an organization that during the reporting (settlement) period did not make accruals at all in favor of individuals, all equally obliged to submit zero reports. As officials explained, the policyholder thereby declares the absence of payments and remunerations that are subject to insurance premiums, and, accordingly, the absence of paid contributions (see “The founding director does not receive a salary: is it necessary to indicate this information in the zero DAM?” ).

In addition, officials insist that for a director with whom an employment contract has not been concluded, the SZV-M form must be submitted (letter from the Pension Fund of the Russian Federation dated 03.29.18 No. LCH-08-24/5721 and the Ministry of Labor of Russia dated 03.16.18 No. 17-4/ 10/B-1846; see “SZV-M for directors: the Pension Fund of Russia requires submission of reports even for those founding directors with whom there is no employment contract”). And although in both letters the reasoning used by the departments is not convincing enough, failure to submit reports will most likely lead to a conflict with inspectors. And how the court will look at this situation is almost impossible to predict, since initially the courts proceeded from the position that an employment contract should be concluded with the manager. Thus, in the event of a trial, the possibility cannot be ruled out that the arbitrators will take the side of the inspectors. In addition, the organization may have to pay a fine for the fact that an employment relationship has not been formalized with the director and his salary is not paid.

Therefore, comparing the possible risks, we believe that in the situation under consideration it is safer to submit both a zero calculation for insurance premiums and the SZV-M form in relation to the manager.

Fill out, check and submit the SZV-M for free via the Internet

Second situation: an employment contract has been concluded with the manager, but wages are not accrued to him

All the conclusions made above are also relevant for the situation when an employment contract has been concluded with the manager, but wages are not accrued to him. The difference in this situation will be the even more precarious position of the organization in the event of initiation of legal proceedings. After all, if there is an employment contract, salary calculation is mandatory (Article of the Labor Code of the Russian Federation).

True, in 2021, a ruling by the Supreme Court of the Russian Federation dated 02/17/17 No. 309-KG16-20570 appeared, in which the judges recognized: if there is an employment contract with the director and in the absence of a salary accrued to him, contributions may not be paid (see “Supreme Court: if the organization does not pay the director a salary, she is not obliged to pay insurance premiums").

However, it is possible that inspectors will seek payments in favor of the director. And when they find it, they will try to justify that these payments are in the nature of remuneration for labor. If they succeed, the organization will be assessed additional fees, penalties and fines.

Third situation: the organization does not operate

This situation is a variation of the first or second situation, but with the condition that the organization does not carry out any activities (that is, we are talking about a “sleeping” organization).

Tax officials insist that the Tax Code of the Russian Federation does not relieve payers of insurance premiums from the obligation to submit calculations if they do not conduct financial and economic activities and do not pay remuneration to individuals during a particular settlement (reporting) period. Therefore, a “sleeping” company is obliged to submit the DAM with zero indicators (letter of the Federal Tax Service of Russia dated November 16, 2018 No. BS-4-21 / [email protected] ; see “The LLC does not pay salaries and does not conduct business: is it necessary to submit a zero DAM?” ).

And considering that we are talking about a manager with whom, according to the rules of the Labor Code of the Russian Federation and the Law on LLCs, it is necessary to conclude an employment contract, the chances of the organization defending the right to an “unaccountable” life are extremely small.