How to create an employee from a freelancer

Among the fears of small and not-so-business, a topic periodically pops up to get an employment contract with outsourcers. Everyone is afraid of labor inspections, tax risks and fines. Your fears of your ignorance. In fact, it is quite difficult to substitute an employee, not a performer. If you yourself in fact have not turned a free counterpart to work force. I will try to tell you when a freelancer turns into an employee, in which cases you need to start being afraid and where to lay straws.

And what is this your employment relationship

Let's dig into the terminology. We have a separate law for labor relations - the Labor Code (TK). And this law gives us almost a check-list, according to which we can recognize the employment contract:

1. We have an agreement between the employer and the employee.
2. The employee has a certain function.
3. The employer must provide the employee with a job, that is, load his function.
4. He should provide him with conditions for labor.
5. Pay salary.
6. The employee must personally carry out the work he has unloaded.
7. Follow employer orders.
8. Follow the rules of the employer.

It seems that everything is clear, but not completely. For example, well, the employer does not have official labor regulations. And about the functions, the devil knows what is written (do whatever I say). What then? Then the borderline cases begin, which everyone fears. Because even if an employee subcontracted his work (as a well-known programmer in Google, who threw everything on the Indians), that is, he does not do the work personally, this does not transform an employment contract into a contract. Just now there is reason to dismiss him to hell with such clever .

In this regard, we run into the fact that formal compliance / non-compliance is not enough. And we need to dig deeper because par. 2 tbsp. 15 TC tells us that "The conclusion of civil law agreements that actually regulate the labor relations between the employee and the employer is not allowed . ” So the legislator has foreseen bypass maneuvers, because in Art. 16 of the Labor Code of the Russian Federation, we see: “ Labor relations between an employee and an employer also arise on the basis of recognition of relations connected with the use of personal labor and arising on the basis of a civil law contract, labor relations ”.

The key word here is “recognition”, because it does not happen automatically. All only through the court. But let's get to the specifics, we will understand when there are risks.

Where can plunge

Commander

Labor relations mean that work is done in the “interests, under the management and control of the employer”. In contrast to the usual civil law contracts, where, in general, the equality of the parties and the default ways of performing the work are determined by the contractor / performer, and the customer does not have to control the activities of the contractor and should not.

And if it is written in your contract that a step to the right, a step to the left is execution, and no amateur performance, then we put one weight on the scales of the labor inspection in your favor. No, this does not mean that it is not necessary to control and let everything go to gravity. Just if it all smacksis beyond the scope of similar contracts with other companies, then for you it is a risk. For example, the performer reports to you once a week on the basis of what has been done, he receives assignments for the next week, but he has to give up and do something else if you want, and he cannot refuse with the words “I know better - back off "Then it is somehow non-standard for the contract of services, is not it?

Accept the team

If it follows from the contract that the employee has a place in the company’s structure in the sun, then this is a risk. That is, for example, he is responsible for such a direction, receives requests from the adjacent department (or manager), works them out, sends them there. A cog in the system, in short. Yes, it can be an outsourcing ordinary. No one argues. But weights can put another one on the scales.

Personal execution

Yes, it should follow that Wassia does everything himself. Because you need Ousya, not Petya. In general, if there is an opportunity to subcontract, then there should be no complaints, especially if it really happened and everyone was up to date and satisfied. But if this has not happened yet, then a line in the agreement on the possibility of subcontracting does not give any guarantees. What if you decide to labor inspection inflate?

Workplace and schedule

Somewhere man must work. Here is your room, man. And here's a chair for you. Sit and do not rock the boat. Do us outsource. Well, you understand. And if it is also stated that there is a work schedule ... Yes, I know that, for example, even a call center can have a work schedule for the contract. Given that this is clearly a pure service. But this is not how we define labor relations according to schedule. They are determined in aggregate according to different characteristics.

Provision of tools

Here's your desk and computer, work. Yes, it may be a contract with the provision of materials and equipment directly by the customer. The default is not so, but easily, and it is not uncommon. But for services, this is less common, and if the basic working tool is provided, and all the working conditions are provided at your expense, then this is a risk. Yes, I am aware that you can give everything to an outsourcer, because you already have everything and it will be cheaper. I remind only about the totality of signs.

Grandmas

If the payment is not a one-time payment, but periodic payments, and it is not due to the acceptance of the work performed (services rendered), that is, such a guaranteed income, then you know what it looks like. Yes, there is a subscription service. The payment model is as follows. This is not just for internet providers. This is generally for services. For example, you have a sysadmin at an outsource and a subscriber. Well, everything is set up so that, in fact, nothing broke. And at the end of the month, take out the money anyway, because it is not his problem that you need nothing more. And its merit is that nothing is broken. From the side, of course, looks like a salary, but in fact nothing in common. But there is a risk.

Holidays and weekends

Now, if the weekend is registered in your civil contract, then it is still ok. As with the work schedule, this is a risk, but it can also be a normal occurrence for an outsourcing. But if you have several weeks in the “I am not available” mode, then it’s generally just like a red rag for work. Yes, it can be just a condition of a normal civil law contract. Well, the IP outsourcer works for itself. And he needs a vacation sometimes. So this is his commercial condition. Easily. Just justify it. And hospital at the same time, if they are also provided. Haha, good luck!

Employee Origin

If an employee doesn’t have any other incomes, but only you are tied, this may mean that you are his only client. Or an employer. And if he is also a former employee of this company, then it is still weights on the scales. And if this company also has a lot of IP on outsourcing, then ... No, this is not a sentence either, but you will definitely be dragged to court.

So in the end how to determine something?

Formula no ultimate. There is no unconditional sign that will make the contract of employment, or vice versa - to protect against such. Determined comprehensively. Let me tell you better on a fresh example to tell the approximate logic. This is not an IT, but the Supreme Court. And it is significant that the first instances refused to recognize the contract of services as an employment relationship, and the tower said that you didn’t understand it enough.


So. A certain citizen worked for half a year in an organization, quit and immediately entered into a contract of services with the same company. She had to look for clients, prepare contracts, accompany them. And received payment - 1% of the contract price. In general, the usual agency agreement. True, by a strange coincidence of circumstances, she continued to do the same thing as before; she had the same workplace; and there were no acts on the services rendered; money came to the citizen in the days of the payment of salaries. I think that everyone understood what they could plunge into with such a contract.

At some point, the organization did not pay the citizen a salary.payment of the contract for several months, and she went to court with a request to recognize their love relationship with the labor organization and not pay the arrears of services rendered (were they ever rendered?), but salary.

What did the first instance say, refusing to the citizen:

1. There are no official instructions and it is not known who she is in the organization.
2. It is not clear why she believes that she was provided with a workplace.
3. Salary as a salary for the documents she was not charged. Yes, and there is nothing in the TC about the salary, which can be done in 1% of the contract.
4. The testimony of witnesses that she went to the office to work every day does not confirm the employment relationship.
5. There is no evidence that she is in any way obliged to comply with the internal labor schedule.
6. And in general, she was pleased with everyone: she did not submit an application for employment, did not also need to make a record in the workbook, and in fact for four years she didn’t even raise a question about it.

The logic actually is. But the Supreme Court nevertheless said that no, guys, you lured something:

1. The confirmation of the employment relationship cannot depend on formal papers that exist or are missing.
2. The contract of services, in fact, also had to be checked to see if there was a contract in fact? And whether the services provided under this contract?
3. The contract of services is not for the performance of work as such, but for the implementation of specific actions or activities on the basis of a specific task by an agreed time and for a conditional fee . And the employment contract differs primarily in the subject, when it is precisely certain labor functions that are needed, and the process of performing the function itself, and not the service rendered, is important.
4. Under the contract of services, the performer maintains his position as an independent subject, and for the labor worker is included in the staff and obeys the rules of the organization and the employer.
5. The contractor of the service contract works at his own risk, and the employee does not bear any risk.
6. Based on the real situation, if you do not take into account the papers, somehow it all looked like an employment relationship.

And most importantly, all ineradicable doubts about the recognition of relations arising on the basis of a civil law contract as labor relations are interpreted in favor of the existence of labor relations (Art. 19.1 of the Labor Code of the Russian Federation).

What to do

All the main risks come from the fact that companies do not understand what they specifically want from the contractor, and they also want complete submission. But in fact, you can get by with a little blood if you follow a few tips:

1. Remember, there is no commercial relationship without the primary! If you are provided with services, then you must accept them, check, sign the act and pay for accepted works. Even without taking into account all these fears with labor inspections, you will receive a tax refund for understating the taxable base without documents.
2. If you do not want to get an employment contract, then you do not need to make an employment contract from a service contract. Do you want control? Well, write it as it would look in a normal service contract. Gave the task, there is a deadline for execution, reported. If in itself the performance of duties implies the presence of a performer in your office, then you should not turn him into an employee. They singled out the place (even the plan-scheme is better to draw in the contract), and then he himself let him work and provide services. And he does not need to push the standard local documents according to the rules of the schedule and other things. Include what is needed in the body of the contract.
3. Payment should be for obtaining economic value, and not for the time of sitting down pants. If there are a lot of tasks a day, and payment after the fact at the end of the month (which is very similar to the usual office routine), then you still need to prescribe the procedure for working with reports and acts, and pay only after acceptance with the right (!) .
4. Write what you want from the artist. Do technical tasks, insert metrics, prescribe the stages of work. Under a civil law contract, you must receive a solution to specific problems. You do not need a function by itself. Behind functions is to workers. Do you want to work instead of a physicist to outsource? No problem. But hire him as a performer in view of the foregoing.

And finally, do not be so afraid of "imposing" labor relations. This is not so common. Just respect the other side of the contract, remember that this is an independent subject of the relationship. And do not transfer money to the card on the 15th and 30th every month. According to the payroll. Well, just in case.