How to prove a black salary in court? Why such a question arises? What is the difference between black and white salary. How workers can protect themselves with government help.
Occurrence of a problem
Salary, as the law says, is the totality of payments due to an employee for his labor. Its size is determined by many factors, ranging from government requirements and ending with the views of the employer.
The law obliges to pay earned money 2 times a month. First an advance, and then a salary. For a number of reasons, the practice of informally paying a significant portion of this amount has become widespread among employers.
All this is called - "salary in an envelope."
Worse, when an employment relationship is not formalized with the employee at all, and all payments are completely spent on black bookkeeping. This further complicates the position of the employee.
Forms of remuneration
What salary types are practiced? “White” is paid in full; all due contributions to the budget and insurance funds are made from it.
The “black” salary can go fully or partially through informal accounting.
Evasion is primarily due to the desire to save on tax burden and deductions for social and pension insurance. Such an approach also provides an additional lever of pressure on workers. People are forced to put up with illegal requirements, in particular, to work overtime without additional payments, and endure other violations of their rights.
Because of this situation in the private sector, people prefer to get jobs in budget organizations. There, of course, a small salary is offered, but without the above risks and the unrest associated with them.
Consequences of income hiding affecting an employee
Sometimes they simply refuse to hire an employee in compliance with the law. Insisting on the refusal to formalize the relationship or offering partial registration (part-time at virtually full time), the employer tries to show the situation on the positive side in that the payroll is hiding from the state.
Perhaps the only dubious plus for the employee is the savings in paying taxes and social contributions. Some men use this to get rid of child support or reduce their size.
But "salary in an envelope" carries serious negative consequences:
- The funded part of the pension is lost, or in general the pension as such (more on this below).
- Minimum payments during maternity leave or unemployment.
- Reduced or no payments due to illness.
- The absence of entries in the workbook confirming the periods of labor activity (affects the chances of employment for a similar position in another company).
- Risk of losing reimbursement upon downsizing or dismissal.
If the income is partially hidden, then the employee loses some of the benefits, if the income is completely hidden, there is a risk of being left without state support. Thus, even a small salary is not the best compromise.
The danger of "black salary" for future pensioners
Until 2013, everyone was counting on a guaranteed pension from the state, the length of service and salary did not matter. Since that year, everything has changed. And not right away.
Having reached the required age (55 years - women and 60 years - men), citizens will be able to receive a pension, having a certain number of years of work behind them.For example, in 2017, it takes 8 years of experience, from 2024 it will take at least 15 years of experience.
Otherwise, you will have to wait another 5 years to get the right to a social pension or continue to work in order to accumulate the missing points. This is what threatens the “black” salary for citizens approaching retirement age.
What is the danger to the employer
What does the employer lose in breaking the law? We are talking about the risks of facing fines and even criminal prosecution by state authorities. In addition, a bad reputation is being created among potential employees. Since the “white” and “black” wages are very different, the employer must take into account all the disadvantages and advantages of such wages.
What does the employer face?
The receipt of information on the use of “gray” schemes at the enterprise entails verification by the tax inspectorate. A labor inspectorate, representatives of the FSS and the FIU, and the prosecutor’s office can join it.
In this regard, the following types of liability of the employer are provided:
- administrative
- criminal;
- tax.
Still held accountable for tax evasion.
As a general rule, arrears and penalties are collected, and fines are added to them. At the same time, they may be imposed on officials and on a legal entity. Their size is from 5 to 40 thousand rubles.
The minimum penalty for criminal prosecution is 100 thousand rubles.
If the company practices non-statutory types of salaries, all this can lead to serious consequences.
Are employees held accountable?
The media and employers are of the opinion that both employers and workers are attracted for non-payment of contributions and taxes. Is it so?
According to the current legislation, tax and other payroll accruals with their further transfer to the respective funds are the employer's responsibility. It is he who bears all responsibility, and not the employee.
How to protect your rights
But what's the point of knowing how an employer can suffer?
Sooner or later, the employee will understand that the salary in the envelope creates only problems for him. The first thought that comes to mind is to flee to court, all the more so because the appeal period is only 3 months from the date of non-payment of money. However, this is a premature step, evidence needs to be gathered; allegations of a “black” salary alone are not enough.
The court considers cases on the basis of materials received from the parties to the process. Unfortunately, only a few witnesses are involved in the proceedings. How to prove a “black” salary in court? What is necessary?
Code of Civil Procedure requires that certain circumstances be proved only in the manner prescribed by law. This means that if there has been a violation of the labor law, the employee must provide materials from the labor inspectorate, the Federal Tax Service, the Pension Fund and the Social Insurance Fund or the prosecutor's office. Only having answers from them proving the violation is there a chance to achieve a positive result.
Appeal to the Federal Tax Service and other regulatory authorities
Where to go:
- Federal Tax Service;
- Social insurance fund;
- Pension Fund;
- State Labor Inspectorate.
The listed structures operate according to a single scheme. Having received an application from a citizen, they appoint either a desk audit or an on-site inspection. A desk check is carried out on the basis of documents received earlier from the organization.
Field inspection is carried out by a team of employees of the inspection body or several bodies. An order is issued, a date is given.
The verification process includes:
- inspection of the premises of the employer;
- seizure of documentation;
- a survey of witnesses (employees of the enterprise);
- requesting additional documentation.
An act is drawn up based on the results of the audit, an order is issued to eliminate the violations, a penalty is collected, in particular, funds are deducted from accounts without a judicial procedure, and property is seized.
The Federal Tax Service is concerned about tax evasion, the Social Insurance Fund and the Pension Fund - evasion of insurance premiums.
What to do if they do not pay black salaries to employees of the enterprise? Contact each of the regulatory authorities with a statement. And also note in the header of each statement where a similar document was sent. So an unscrupulous entrepreneur has less chance of ignoring complaints.
Complaint to the prosecutor
The prosecutor's office is engaged in general oversight of the activities of public authorities and organizations. What does it mean? The Office does not replace these bodies, in particular, the Federal Tax Service and other structures. The prosecutor's office accepts complaints about the inaction or illegal actions of these bodies.
The submitted application with the attached documents stating that a small salary is illegally paid is sent to the labor inspectorate. Other authorities will not even notify what is happening. The prosecutor’s office will oblige the inspection to report on the results of the verification of the application. So, first of all, it is necessary to report violations to specialized organizations, and then, if they are inactive, write a complaint to prosecutors.
It should be noted that there are employees who organize inspections with the involvement of relevant departments, conduct a full-scale audit and issue an opinion based on the materials received.
The collected materials are then used to file a claim to protect workers.
What evidence can an employee provide?
It makes sense to contact the controlling organization with evidence on hand. At the same time, the question is raised: how to prove a black salary in court?
The amount of evidence available depends on whether or not formal employment has taken place and what position the applicant has held.
In the absence of official entries in the work book or a written contract, the fact of an employment relationship must also be proved. Sample list of evidence:
- employee testimonies;
- testimonies of clients of the organization, other citizens who can confirm the fact of fulfilling orders or work;
- the provision of receipts, invoices, other documents confirming the fact of the plaintiff;
- audio and video recordings;
- correspondence materials through electronic mail services (mail.ru, for example);
- records of telephone conversations;
- announcements in the media, on the Internet about the availability of vacancies.
By posting a vacancy on the Internet, the applicant is forced to post the data of the organization or his personal, if it comes to IP.
The easiest way in this situation is for office workers who have access to documentation.
A separate category is court decisions on claims of the Federal Tax Service, the Social Insurance Fund, the Pension Fund on the collection of contributions from the organization. If such claims have been filed, the chances of workers defending their rights are greatly enhanced.
Filing a lawsuit
A lawsuit is filed with a magistrate or district court depending on the amount of the debt (in a magistrate’s court, cases up to 50 thousand rubles are considered).
The lawsuit states:
- name of court or magistrate's court;
- information about the plaintiff (name and address, phone number);
- name of organization or data of the IP - respondent;
- third parties (FTS, FSS, PFR), illegal payroll affects their interests directly;
- statement of circumstances, evidence available to the applicant;
- requirements for the defendant;
- list of attached documents;
- Signature and filing date of the claim.
The scheme of the claim is standard: the date of employment, the hours worked at the time of going to court, the conditions under which the plaintiff was hired.
If it is still clear how to prove a black salary in court, then what requests should I send to the court?
- establish the fact of an employment relationship (if there was no official registration);
- oblige to charge and pay salaries in the amount of (indicated amount);
- recover moral damage in the amount (the amount is indicated in the claim with its justification);
- additionally accrue or accrue contributions to the Federal Tax Service, Social Insurance Fund, Social Insurance Fund of the payroll during the period (indicate in the claim) insurance premiums in the amount of (indicate amount);
- make an entry in the workbook on the acceptance of the position ... (name is indicated);
- make a record of termination of employment in the workbook for a reason (which the employee considers correct, but taking into account the wording of the law).
It should be noted that labor disputes in court by the plaintiff are not paid state duty. It is recovered after the completion of the process from the losing side.
How to behave in a lawsuit
Negative answers from inspecting authorities deprive of hope, because of them many doubt whether it is worth going to court. Worth it. At the first court hearing, one must ask to demand all materials of inspections conducted by regulatory authorities.
Their study may provide new evidence. The judge is not obliged by law to agree with the conclusions of public services, examining the audit materials, he may come to completely different conclusions.
It is necessary to immediately file a petition for calling witnesses with an explanation of what circumstances the plaintiff plans to confirm with their help.
Representation of interests by the prosecutor's office makes it easier for employees to protect their interests. However, there is one “but”.
The prosecutor's office may turn out to be involved in the process, or lead it so that it contributes to the loss. You can not remain a passive observer, you need to continue to be active.
The refusal of the prosecutor to conduct the process does not mean its automatic termination; the consent of the plaintiff is also required. If an employee of the department is not going to appeal the court decision, the plaintiff retains this right. The main thing here is not to miss the one-month period for filing a complaint.
Such lawsuits are rare and hard to win. It’s worth a try.