Employment contract with employee sample 2021 free download standard form example form

It is not so easy to distinguish an employment agreement from a form of a civil law nature in practical work.

Especially if, by agreement of the parties, the subordinate was given a standardized task and the condition of his payment based on the final result and the actual completion of the amount of work.

For this reason, employers often make legal mistakes , which can lead to significant material losses.

Analysis of civil agreements leads to the conclusion that they are concluded for the performance of services or specific work , which to a certain extent brings them closer to related employment contracts. Both forms are considered paid , providing for payment for the amount of work performed.

Legislation provides an entrepreneur who uses hired labor with the opportunity to choose between a civil contract and an employment contract. To avoid mistakes and disputes with the tax office , you need to know what their differences are and evaluate their advantages and disadvantages for different situations.

Features of each type of agreement

By signing a civil contract, the Contractor, who undertakes to perform the agreed type of work, does not receive some guarantees that he could count on under the labor form of the agreement. Basic rights :

1. Salary payment 2 rubles/month . and more often.
2. Salary in the form of vacation pay with reservation of a workplace.
3. Payment of travel expenses and leaving the employee in his place when sent on a business trip.
4. Providing leave with workplace reservation
5. Guarantee after termination of employment in the form of severance pay and the priority right to remain in the company.
6. Payment of sick leave.
7. Compensation of costs when operating own funds .

Why is it so important to choose the right way to design a performer? Illiterate qualifications can have the most unpredictable consequences for the Employer. For example, if a civil law agreement was drawn up where a labor agreement should be concluded, then the court may intervene to reclassify the agreement.
For the Employer, this means paying a salary no less than the minimum amount approved by the state, including the performer on the staff, compensation for moral damage and payment of legal costs . In addition, tax (FSS and penalties) is also required.

Fundamental differences between forms

In order to decide in time which type of agreement is better to conclude, you need to study the main features by which they can be compared.

According to the labor version of the document, an employee can personally perform the duties of an accountant or electrician, and not the scope of work . A mandatory point is compliance with the labor regulations existing in the company.

Under a civil agreement, the Contractor assumes responsibility for performing the agreed amount of work . He organizes his working time and space himself and is not subject to any other rules. The phrase in the contract “obliged to comply with internal regulations” can have negative consequences .

In the labor form of relations, specialists are considered subordinate to the employer within the framework of their job responsibilities. equal parties works .

The labor option requires the Employer to regularly pay a salary of 2 rubles per month in accordance with the schedule.

The civil law document does not provide for such liability ; the payment procedure is determined by the parties.

In labor relations, a specialist has his own function.

Alternatively , the document assumes obtaining the planned result from the execution of the order. The phrase “performs the functions of an economist in the organization” in this document is incorrect.

A fixed-term employment contract is only in some cases. Most often, it is indefinite . A civil agreement is concluded for a limited time or until a material result appears.

So, if the Employer intends to choose the civil form of the document, it is worth checking whether it contains any “pitfalls” ─ provisions similar to the wording of the employment contract.

The unclear description of the subject of the agreement must be reformulated, phrases like “payment in accordance with the staffing table” must be replaced with more correct ones . Otherwise, there is a possibility that the contract will be recognized as an employment contract in the courts.

Disadvantages and advantages of an employment contract

We note the advantages and disadvantages of drawing up an employment contract for the Employer.

Pros:

1. The employee complies with labor regulations , otherwise penalties are applied to him, including dismissal.
2. When an employment contract is drawn up with, there are options for calculating unified social tax . The position of the tax authorities is that UST payments for individual entrepreneurs are made by the Employer. But according to 235 of the Tax Code of the Russian Federation, an individual entrepreneur is a taxpayer, and the object of taxation here is income from business or other activities, which gives him the right to pay the unified social tax personally.

Minuses:

1. The need to pay wages taking into account the minimum wage and the stipulated deadlines for employees who fulfill the labor standard and have worked the specified number of hours.
2. Registration of a specialist on the staff of the enterprise with adjustment of the staffing table . Changes must be agreed upon with the trade union body of the team (if there is one in the company).
3. The right to severance pay (after dismissal), salary, paid leave (including special leave for employees with children), overtime pay.
4. Creating conditions to carry out his functions without distracting him from fulfilling contractual obligations.
5. Maintaining documentation about personnel and submitting reports to regulatory authorities (FSS of the Russian Federation, Pension Fund of the Russian Federation, Compulsory Medical Insurance Fund of the Russian Federation, State Statistics Committee of the Russian Federation) with payment of insurance premiums .

For an employee, the specifics of registration under an employment contract are different.

Pros:

1. The right to pay wages on time and taking into account the minimum wage prescribed by the Federal Law when fulfilling the plan or functional duties.
2. Right to full-time employee status.
3. guarantees : payment of benefits upon dismissal, salaries from 2 rubles per month, guarantees for employees with children, payment of vacation pay and overtime, etc.
4. Providing the conditions that a subordinate needs to perform functional duties.
5. Social insurance law .
6. Guarantees of length of service for the transition to a retirement pension.

Minuses:

1. Obligation to adhere to internal rules . If it is violated, the employer has the right to discipline or dismissal.
2. For the salary amount is not subject to Unified Tax at the rate of 35.6%, existing for the Employer, the individual entrepreneur himself pays Unified Tax (13.2%).

Sample employment contract.

The difference between a GPC agreement and a labor agreement

The main differences between a GPC agreement and a labor agreement are given in the following table:

Advantages and disadvantages of a civil agreement

Pros:

1. The contractor is interested in the result, so he creates the place, time of work, and methods for completing the order himself . If there are no other terms in the contract, he uses his own material.
2. UST, in particular, the Social Insurance Fund tax is not charged
3. There are no guarantees of the Labor Code of the Russian Federation.
4. Salary insurance contributions are not charged unless otherwise indicated in the papers.
5. Payment of monetary compensation is carried out upon completion of the work (advance is possible) in accordance with the amount specified in the contract based on the results.

Minuses:

1. The contractor cannot be held accountable for ignoring internal regulations, since work regulations are not provided for in this form of contract.
2. The risk of recharacterization of the contract if law enforcement agencies can reveal that in fact the relationship is regulated by a related labor analogue (Article 11 of the Labor Code of the Russian Federation).
3. If a citizen has not registered as a legal entity, there is a risk of being held accountable before the law for unauthorized activities.

Read more about how a civil contract with a foreign citizen is concluded here.

When does a civil contract become an employment contract? The civil legal form of the document provides for the reduction of unified social tax for a fee. Do tax authorities have the right to re-qualify the agreement? It is impossible to collect tax from a company unconditionally if its payment is conditioned by changes :

• qualifications of transactions concluded with third parties ;
• qualifications of status and nature of activity.

If the tax additional charge is caused by a change in the qualifications of transactions or the status and nature of its activities, the collection of additional amounts from the enterprise can only be carried out in court .

The results of an on-site tax audit, if inspectors require civil documents , are not grounds for making a demand for voluntary payment of tax. Collection is possible only through the court with all formalities. In judicial practice, cases of tax collection when recharacterizing contracts are extremely rare .

Sample civil agreement.

We suggest that you familiarize yourself with the following materials: on the additional agreement to the employment contract, on the collective labor contract, on the quota of jobs for disabled people and on the features of their registration, on the probationary period under the labor code, on the extension of a fixed-term employment contract and the contract with a minor employee.

Pros and cons of a civil contract

Civil contracts are becoming increasingly popular. And there are reasons for this.

For the employer

GPA is characterized by the following advantages:

• The employee has obligations. He must complete the work efficiently and on time.
• There is no need to set up a workplace, provide a social package, or make contributions to health and social insurance.
• Tax benefits. In particular, there is no need to pay unified social tax.
• The employer does not pay for the work process, but exclusively for the result.

However, GPA is not without its drawbacks:

• It is impossible to control the work of an employee.
• It is difficult to hold an employee accountable for violating the routine.

GPA does not imply great responsibility on the part of the employer, but it also lacks tools for control over employees.

Ratio table

How does an employment contract differ from a civil contract? It is convenient to summarize all the arguments in a table.

Indicators

According to the Labor Code of the Russian Federation, agreements between an employee and an employer (legal entities or individual entrepreneurs employing the labor of hired persons) are formalized by an employment contract.

Admission is carried out upon the personal application of the employee, listing his job responsibilities in the order and recording the fact of admission in the work book.

As a rule, they are hired according to the staffing table, but there may be exceptions when an employee is hired for a non-staff position.

Regulatory acts establish working conditions that a manager must create for a subordinate, using his workforce in accordance with his qualifications and position. According to the Labor Code of the Russian Federation, remuneration depends on labor contribution and quality of work. To calculate it, tariff rates .

hire non-employees to perform certain jobs

With their own forces and means, at their own risk, independently choosing ways to implement the subject of the contract , the other party undertakes to produce a certain thing or perform a volume of work. She is responsible for the inadequate quality of the materials and equipment provided to him.

Audit statistics show that partial accrual of contributions to the Payroll Fund (except for the Social Insurance Fund) is explained by the existence of labor agreements with subordinates, believing that these documents can be considered civil contracts . Such contracts, provided for by the Civil Code of the Russian Federation, must be distinguished from labor analogues regulated by the Labor Code of the Russian Federation.

A civil law contract in the sphere of labor is concluded when there is no position in the staffing table to perform the necessary work, it is not typical for a given enterprise, and is not permanent for the employer who needs it. Failure to comply with labor laws can have unpleasant consequences (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

1. a fine on an official for substitution in the amount of 5-50 minimum wages.
2. Disqualification for 1-3 years (for repeated violation of a similar type).

What kind of agreement should I conclude with an employee?

By engaging a person to work, the organization enters into an employment or civil law contract with him. Our article will help you understand the advantages and disadvantages of these agreements, their design features, as well as what tax consequences arise when concluding them.

CIVIL AND LABOR CONTRACTS: ANALYZING THE DIFFERENCES

As a rule, if an employee is hired in a certain specialty for a long time, the organization enters into an employment contract with him. Such relations are regulated by labor legislation, mainly the Labor Code.

For the duration of certain work, the parties enter into a civil contract (contract, paid services, copyright, etc.). In this case, relations are regulated by the Civil Code. The most common is the contract agreement.

Relations that arise on the basis of employment and civil law contracts are legally regulated differently (see table on pp. 121-123). Therefore, it is important to know the features of their design.

Table. Civil and labor contracts: main differences

ADVANTAGES OF A CIVIL AGREEMENT

In addition to the differences indicated in the table, the conclusion of civil and employment contracts leads to different tax consequences. It is more profitable for an organization to conclude a civil contract with an employee. And that's why.

Firstly, you can save on the Unified Social Tax in part of the amount payable to the Federal Social Insurance Fund of Russia. The basis is paragraph 3 of Article 238 of the Tax Code of the Russian Federation. Currently, the maximum tax rate credited to the Russian Social Insurance Fund is 2.9%.

Secondly, the customer organization may not pay insurance premiums for industrial accidents and occupational diseases. After all, they are charged only if, in accordance with the contract, the company has assumed the obligation to pay these insurance premiums. The basis is paragraph 1 of Article 5 of the Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases.” Today, insurance premiums for industrial accidents and occupational diseases range from 0.2 to 8.5% of the accrued salary of insured persons (Article 1 of the Federal Law of December 22, 2005 No. 179-FZ). Tariffs are set in accordance with occupational risk classes.

In addition, the conclusion of a civil contract will allow you to circumvent the legal requirements for increased wages in conditions deviating from normal ones. For example, you can save on additional payments for irregular working hours, payment for downtime, and compensation. Also, the company is not obliged to provide additional annual paid leave to persons performing work under civil contracts.

Please note: the price specified in the civil contract also includes compensation for costs (clause 2 of Article 709 of the Civil Code of the Russian Federation). Therefore, there is no need to accrue UST for the entire amount of payment to the contractor. Only remuneration for work performed is taxed. At the same time, documented expenses can be excluded from the tax base, but only if their payment to the contractor is provided for in the contract (letter of the Ministry of Finance of Russia dated July 14, 2006 No. 03-05-02-04/189).

IF THEY CARRY OUT A CHECK...

Tax inspectors carefully analyze civil contracts, since when they are concluded, the organization saves on taxes. However, only a court can reclassify a civil contract into a labor contract (Article 11 of the Labor Code of the Russian Federation).

The case considered by the Federal Antimonopoly Service of the North-Western District is indicative. In the resolution dated April 14, 2005 No. A42-6525/03-16, the arbitrators identified the characteristics by which a civil law contract can be distinguished from an employment contract. The court considered the main features of an employment contract to be:

— the employee’s obligation to observe the work and rest schedule and obey the orders of the customer;

— maintaining the employee’s salary regardless of work results;

— the employer’s obligation to regularly pay wages based on tariff rates and salaries.

The features of a civil law contract are as follows:

— property obligations are not assigned to the customer;

— the work is paid upon completion based on the established contract price and the achieved result.

Let's consider an example of retraining a civil law contract into an employment contract.

EXAMPLE 1. Between Mirage CJSC and M.M. Sidorov concluded a contract agreement, according to which the contractor is obliged to develop technical documentation on labor protection and monitor compliance by the company’s employees with safety regulations. The contract period is one year, the monthly payment to the employee is 5,000 rubles. After some time, an on-site tax audit was carried out, during which violations were identified.

SOLUTION. The inspector found the following signs of labor relations:

— to monitor compliance with safety regulations at the enterprise, M.M. Sidorov must be present at work in accordance with internal labor regulations;

— the employee’s work is paid monthly, regardless of the result achieved.

Based on the results of the inspection, the inspector referred the case to court, and the civil contract was reclassified as a labor contract. As a result, the unified social tax was additionally accrued in the part of the Russian Social Insurance Fund in the amount of 1,740 rubles. (5000 RUR #12 months #2.9%). In addition, the organization is obliged to list penalties and fines.

Let us note that Federal Law No. 90-FZ of June 30, 2006 amended Article 15 of the Labor Code. The changes affected the concept of “labor function”. Previously, this term meant work in a certain specialty, qualification or position. Now - work according to the position in accordance with the staffing table, profession, specialty, indicating qualifications and the specific type of work assigned to the employee. If you enter into a civil contract with an employee rather than an employment contract, you should remember this nuance in order to avoid disputes with the inspector.

CIVIL AGREEMENT WITH A STAFF EMPLOYEE

Often, employers have a question: is it possible to conclude a civil contract with an employee who is on the staff of the organization?

Yes, you can. According to paragraph 1 of Article 421 of the Civil Code, citizens and legal entities are free to choose a contract. But we must not forget that such civil relations can be reclassified as labor relations according to the criteria listed above. To prevent this from happening, the following conditions must be observed:

— the subject of the contract should not coincide with the employee’s job responsibilities;

— the contract should not contain provisions that contain elements of labor relations.

Let's look at the situation using an example.

EXAMPLE 2. Head of the HR Department of OJSC Polet A.V. Ershov, in accordance with the job description, carries out personnel selection, formalizes the hiring, relocation and dismissal of workers, makes appropriate entries in the work book, and concludes employment contracts. To resolve personnel issues A.V. Ershov was brought to work while he was on annual paid leave. How to correctly draw up a civil contract with an employee?

SOLUTION. To correctly draw up a contract, the employer must:

- indicate in the contract the specific type of work to be performed by the contractor. It is desirable that it does not coincide with his job responsibilities (for example, develop internal labor regulations, draw up a report on staff turnover and personnel movements over the past two years, etc.). The employee’s profession and specialty do not need to be indicated in the contract;

- do not stipulate working hours and do not provide for the contractor’s obligation to be present at the workplace every day;

- set the amount of remuneration in the form of a fixed amount, which will be paid subject to the completion of a specific task within a certain time frame;

— stipulate payment terms (for example, within three days from the date of signing the certificate of completion);

— after completing the task, issue an acceptance certificate for the work performed with the contractor;

- after signing the work completion certificate, pay the amount stipulated by the contract.

Remuneration under civil law contracts can be taken into account as part of other expenses when calculating income tax. This is stated in the letter of the Ministry of Finance of Russia dated January 26, 2007 No. 03-04-06-02/11. It also states that the amounts of such remuneration are subject to Unified Tax, with the exception of that part of the tax that is transferred to the Social Insurance Fund (clause 3 of Article 238 of the Tax Code of the Russian Federation).

In addition, the company must pay contributions for compulsory pension insurance, since the basis for calculating pension contributions and the unified social tax is the same (clause 2 of article 10 of the Federal Law of December 15, 2001 No. 167-FZ).

According to subparagraph 6 of paragraph 1 of Article 208 of the Tax Code of the Russian Federation, payments under civil contracts are subject to personal income tax.

As for contributions for injuries, they are accrued only if, in accordance with a civil contract, the company has assumed the obligation to pay these insurance premiums (clause 1, article 5 of the Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against accidents at work and occupational diseases").

N.N. Shamonova, expert auditor of audit consulting company

Source: Salary