How to deceive an employer

Leonid Mednikov, Sales Director of the Territory of Accounting CompanyThe crisis has generated not only abuse of employers against employees – non–payment of wages, illegal dismissals, but also a backlash - employee fraud.

Moreover, the latter have invented such a method of deception that the courts take their side.In a crisis, fraudsters are finding new ways to get money from companies that do not pay due attention to compliance with the letter and spirit of the legislation. We have become aware of an extortion scheme in which an "employee" uses the levers of the law against employers. The essence of the fraud is as follows: a new employee can prove the fact of his employment even if he is not officially registered, does not have an employment contract in his hands and did not provide a work record. Having provided evidence that he carried out work in the interests of the company, an employee may demand payment that is several times higher than the amount that you agreed with him at the interview.

To implement such a scheme, it is necessary to know the labor legislation well. Scammers usually work as a group: specialists develop a plan and train a potential "job seeker". In principle, there is no restriction on the position, a fraudster can apply for any position in your company – from an accountant to a customer service manager.

Let's take a closer look at the fraud scheme and the points that the employer and the vigilant personnel service should pay attention to. You hire an applicant, and he asks you to wait with an entry in the workbook under one or another plausible pretext. He also refuses to conclude an employment contract and sign any official documents. From the first days of work, an employee records his presence at work by all available means: he can sign papers; communicate vividly or even inadequately with clients so that he is better remembered; call from a work phone; communicate via corporate email; take photos; record conversations with other employees or management on a dictaphone. The meaning of all these actions is the same – to gain sufficient evidence to confirm that he really worked for the company, even if your relationship with him was not formalized according to all the rules.

In just a month of work, such an "employee" can collect a huge collection of facts confirming his work activity in your company. When it comes time to receive a salary, the employee declares to the employer that he is owed an amount several times more than the agreed amount. Obviously, the natural reaction of the employer is to refuse and dismiss the fraudster. At this moment, a trained "employee" informs you that you have illegally used his work (without registering under the TC) and are going to assign him a "salary of monetary maintenance". With the help of the collected collection of evidence, the fraudster begins to blackmail you with labor inspection, court and other punishments.

At first glance, it seems that the law is on the side of the employer: if the documents are not issued, then the person did not work in the company, therefore his demands are groundless. However, there is a reservation in the labor legislation: if an employee can confirm the fact of his work, then the employer is responsible for not concluding an employment contract. And since our fraudster has prepared well for his role, he has accumulated plenty of such evidence. It is very simple for him to turn the situation in his favor: not only is the work done, but there is no payment, the employer also dismissed the employee at will, which means he must pay severance pay. As a result, the fraudster demands a large sum from the employer and threatens to sue.

Working under this scheme, the scammers blackmailed a Moscow company that worked in the field of consulting. When applying for a job, the employee asked not to make an entry in the workbook for a probationary period, because both the company and he need to "look closely" at each other. And if he suddenly has to part, he does not want to risk his professional reputation. Of course, he assured, in a month or two he was ready to be registered as a staff member, as it should be.

The employer agreed with the employee's position – the reasoning is clear, and it would seem that there is nowhere to expect a catch. During the first month, the employee is actively working, although he behaves somewhat strangely. The employer justifies the new personnel acquisition: people are all different – maybe these are his character traits. And on the day of payroll, the situation develops according to the scheme described above. The employee voices the amount, the employer is surprised and wants to part in a good way. As a result, the employee demanded 500 thousand rubles – 125 thousand rubles for a month of work and 3-month compensation.

Further, all the behavior of the fraudster is aimed at discrediting the employer: he refuses to leave the office, starts calling clients, forcing the employer to physically remove himself from the premises. By this time, the employee had already called the police and testified that he was kicked out of the office against his will.

This story is not over yet, now there are legal proceedings on it.

Comment by the lawyer of the interregional bar association "Law and Man", a specialist in corporate disputes Lidia Ignatova:There is an understandable desire of a person to protect himself and his reputation.

Of course, the situation when a candidate does not pass the probation period is very unpleasant for both sides. One loses time and money spent on the selection and training of a specialist, the other receives an entry in the workbook, which raises questions from a potential employer. That is why many employees ask not to formalize a relationship during the probationary period. The position of the employer, who is willing to meet halfway, is also clear, because he saves on the UST and contributions to the OPS.

However, the absence of an employee's work record does not mean that you can not enter into an employment contract with him.

Of course, by hiring a person, you are actually "buying a pig in a poke" – professional tests, interviews and other personnel formalities can easily be circumvented by a fraudster. Therefore, I urge everyone to use the norms of the law in their favor. Please note: do not violate, but use!

In relation to the described situation, such measures will be useful.

Option 1. Document verification

The employee said that he is still "listed" in another company? No problem! Ask him to bring a copy of the employment record, certified by the seal of the organization where he currently works. The date of certification of the document must coincide with the day when the candidate started working in your company. Perhaps, after such a request, you will never see this person again. Well, let's assume that you are very lucky.

But if the employee is interested in work and is honest with you, and you guarantee him confidentiality, then you will receive the necessary document. Keep it with you. In case of a conflict, you can always prove that the employee was in an employment relationship with another legal entity. Moreover, it will be possible to contact the previous employer – it is possible that he also used a fraudulent scheme at his previous place of work. And this is already a serious proof not only in civil, but also in criminal proceedings.

In general, I recommend always requiring data from the employee from the last place of work: these can be characteristics, reviews, and even any orders concerning him.

Option 2. Postponement of taking office

According to Article 61 of the Labor Code of the Russian Federation, an employment contract comes into force from the date of its signing by the employee and the employer, unless otherwise stipulated by the employment contract, or from the date of the employee's actual admission to work with the knowledge or on behalf of the employer or his representative.

Example. The contract with the employee was signed on 01.10.2008. But by agreement of the parties , the following points should be included in the contract:

"This agreement comes into force on 01.11.2008. The employee starts his official duties on 01.11.2008. In the period from 01.10.2008. to 31.10.2008, for informational purposes, Petrov V.I. has the right, at his own request, to be present at the employer's office on weekdays from 09-00 to 18-00 and get acquainted with the specifics of his activities related to the performance of duties provided for in clause 1.1. of the Contract (the future position of the employee). During the specified period, Petrov V.I. is not entitled to take up official duties.

The presence of Petrov V.I. in the office of the employer during this period is not an actual admission to work, is not related to the performance of their work obligations under this contract.

The employee is employed with a probationary period of three months from 01.11.2008".

It is advisable to back up these provisions of the contract with a written statement of the future employee, in which he confirms that before the entry into force of the contract he wants to get acquainted with the specifics of the employer's activities by personal presence in the employer's office.

In all cases, the employee must write a job application (!).

Due to the above provisions of the contract, the employee will not be able to prove that he started work earlier than the agreed period, and you will be exempt from paying taxes for some time and will be able to take a better look at the applicant.

It is important to understand that you cannot terminate such a contract on your own initiative until the employee officially leaves for work. But that's exactly what the probation conditions are for. According to Article 71 of the Labor Code of the Russian Federation, an employee who has been hired can be dismissed as not having passed the probationary period. You must notify the employee of your decision in writing three days before the dismissal, indicating the reasons that served as the basis for recognizing him as not having passed the test. But remember: an employee can challenge such a dismissal in court.

Option 3. Student agreement

A legal entity has the right to conclude an apprenticeship contract for vocational training with a job seeker (Articles 198-208 of the Labor Code of the Russian Federation). This type of contract was the subject of serious disputes: some experts considered it part of an employment contract, while others considered it an independent type that did not generate obligations of the employer to the student as an employee. As a result, the student contract is recognized as a separate type of contractual relationship between the employer and the student (Letter of the Ministry of Finance of the Russian Federation dated 07.06.2007 No. 03-04-07-02/31, letter of the Federal Tax Service of the Russian Federation dated 09.07.2007 No. 05-1-02/304).

Under such an agreement, the employer teaches a citizen certain skills and pays a scholarship. According to the explanations of the financial department, payments under the student contract are not subject to the UST taxation, they are not charged with contributions to the OPS (Letter of the Ministry of Finance of the Russian Federation dated 17.08.2007 No. 03-04-06-01/294; Federal Tax Service of Russia dated 26.07.2007 No. GV-6-05/604; paragraph 2 of Article 16 of the Federal Law dated 15.12.2001 No. 167-FZ). However, during the study, the scholarship does not reduce the tax base on profit.

If all of the above is taken into account correctly, an apprenticeship contract can be drawn up at the time of the employee's reliability check or for a period during which the employee does not want to be formalized. Note that you can teach anyone and anything. For example, an accountant who previously worked in an industry organization came to the accounting services company. This means that he can be trained in consulting specifics of work, rules of communication with clients, etc. A curator is attached to such a student and a scholarship is awarded. The amount of the scholarship may be significantly lower than the salary. Moreover, if an employee is hired in the future, the scholarship costs may reduce the income tax base as expenses related to production and sale (item 49, item 1, Article 264 of the Tax Code of the Russian Federation; letter of the Ministry of Finance dated 13.02.2007 No.03-03-06/1/77 ). (Attention! Does not apply to entities using special modes (USN or ESHN)). The main thing is that the costs are economically profitable and documented. If the student has not acquired the necessary skills, then the employer is not obliged to hire him.

Other options

Conclusion of a fixed-term employment contract for small businesses. Article 58 of the Labor Code of the Russian Federation prohibits the conclusion of fixed-term employment contracts in the absence of sufficient grounds for that, as well as in order to evade the provision of rights and guarantees provided for employees.

At the same time, the following – Article 59 – will clarify the circumstances under which fixed-term employment contracts are allowed, including with persons entering into work with employers–small business entities (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people).

The conclusion of a contract (Article 702 of the Civil Code of the Russian Federation) is ineffective from the point of view of saving on taxes, but it allows you to terminate the contract without taking into account the guarantees to the employee provided for by the Labor Code.

In conclusion, it should be noted that there are no ideal methods of combating personnel fraud, since the courts often side with employees, considering them more vulnerable to the power of the company.

Portal "Eternal youth" www.vechnayamolodost.ru04.02.2009