The employer has lost the employment contract what to do. Recovery of personnel documents. The employee asked to certify him with a copy of the employment contract. How to do it right

Question

During the personnel audit, it turned out that the employer and the employee do not have a single signed employment contract with employees. How will it be right now to restore personnel documentation and conclude labor contracts and employment orders with everyone?

Answer

The procedure for the restoration of an employment contract is not established by regulatory enactments.

It is recommended to conclude a new employment contract. In this case, indicate the date of the conclusion of the contract, and the date of the beginning of the employment relationship - when the employee was admitted to the organization. To restore the documentation, the employer is recommended to issue an order on the loss of documentation, a list of lost documents, the timing of their restoration and indicate the person who is responsible for restoring personnel documentation. This order can be issued on the basis of the Service or Memorandum of the responsible person, in which the fact of the absence of employment contracts is recorded.

Justification

The issues of organizing storage, acquisition, accounting and use of documents are regulated by the Federal Law of October 22, 2004 N 125-FZ (as amended on June 18, 2017) "On archiving in the Russian Federation". Legal regulation of the procedure and terms of storage of personnel documents is carried out on the basis of the List of standard administrative archival documents generated in the course of the activities of state bodies, local authorities and organizations, indicating the storage periods, approved by Order of the Ministry of Culture of Russia dated 25.08.2010 N 558. Section 8 "Personnel security ”of the specified List contains information on the storage period of personal files, including copies of orders of employees. Organizations are obliged to ensure the safety of archival documents, including documents on personnel, during the storage periods established by federal laws, other regulatory legal acts Russian Federation, as well as lists of documents provided for by Art. 23 of Federal Law N 125-FZ. These documents have a storage period of 75 years. The storage period is 1 year for the vacation schedule and 3 years for other vacation documentation.

Thus, in case of loss of personnel documents with signatures of employees, the employer should restore them, since the current legislation imposes on the employer the obligation to ensure the safety of personnel documents.

The procedure for the restoration of an employment contract is not established by regulatory enactments.

To restore the documentation, the employer is recommended to issue an order on the reasons for the loss of documentation, a list of lost documents, the timing of their restoration and indicate the person who is responsible for restoring personnel documentation. This order can be issued on the basis of the Service or Memorandum of the responsible person, which records the absence of employment contracts (and, if possible, the reason for their loss).

In the opinion of specialists of the regulatory authorities (see. Question: There was a fire in our office and all personnel documents were lost. With the restoration of work books, we have resolved the issue. And we do not know how to restore copies of labor contracts. The situation is complicated by the loss by some employees of their copies of employment contracts. What to do in such a situation? ("Human Resources Department commercial organization", 2014, N 2) (ConsultantPlus)), if the employment contract has been preserved in electronic form, a duplicate of the employment contract must be issued. In this case, the duplicate of the document must meet all the requirements that apply to the execution of an employment contract, and be identical to the lost copies of the employment contract. If electronic form there is no employment contract, they recommend concluding a new employment contract. In this case, indicate the date of the conclusion of the contract, and the date of the beginning of the employment relationship - when the employee was admitted to the organization. In addition, in the text of the employment contract, we recommend that you indicate that it was concluded to replace the lost one.

In our opinion, the safest option for the employer is the second option, since the possibility of issuing a duplicate of an employment contract is not directly provided for by the current labor legislation (such as, for example, the ability to issue a duplicate of a work book).

We recommend: additional familiarize yourself with the material posted in the ATP ConsultantPlus - Question: What can the employer do in case of loss of personnel orders with signatures of employees (in particular, on vacations and personnel transfers)? What is the order of their restoration? Is it necessary to restore such orders for dismissed workers? (Expert consultation, 2012) (ConsultantPlus)

All are lost employment contracts... How can an employer restore them? How to correctly draw up a duplicate of an employment contract? Is the employment contract concluded anew? The employee asked to certify him with a copy of the employment contract. How to properly certify this copy? What sanctions should an employer expect if he does not give the employee a copy of his employment contract?

All employment contracts have been lost. How can an employer restore them?

The labor legislation does not directly spell out the procedure for the restoration of employment contracts. Therefore, the employer can develop it individually for his company on his own. For example, draw up a separate local regulatory act on this issue, add the appropriate column to the Instruction on HR administration ().

It can be stipulated in advance that if, for any reason, the original of the employment contract is lost, a duplicate of it is drawn up (GOST R 7.0.8-2013). At the same time, it is necessary to indicate on the basis of which documents the registration takes place and in what time frame.

By the way, the employer can determine the following procedure: lost originals of employment contracts can be restored on the basis of the copies in the hands of employees. Thus, if this right of the employer is spelled out in the internal regulations of the company, it will be legal within three working days from the moment of discovery of the loss to demand from employees their employment contracts. The employer will use them to make duplicates and return copies to employees. Such actions should be limited to a certain time frame. For example, an employer or a personnel officer, as his representative, undertakes to do everything during the working week.

Attention!

The labor legislation does not specify the time frame for drawing up a duplicate of an employment contract. The term, therefore, can be any, but within reasonable limits, and not stretched over long months.

The employer can additionally enter his copies of employment contracts in the electronic database. Then, in a local regulatory act, you can prescribe that paper duplicates of contracts will be drawn up on the basis of electronic documents. This means that you will not have to demand copies of them from employees, which will help to significantly reduce paperwork.

How to correctly draw up a duplicate of an employment contract?

If both copies of the employment contract are lost, how can you properly draw up its duplicates?

Let us repeat that the legislation does not contain established order registration of a duplicate of an employment contract. The employer reserves the right to independently create it by registering it in a local regulatory act.

When creating a procedure for issuing duplicates, the personnel officer should not forget about the following circumstances:

According to the rules, the original of the employment contract in writing is concluded in two copies, on which each of the parties puts its signature (). This means that duplicates of lost documents should also be drawn up and fastened in a similar way. In addition, the employee must sign the duplicate of the employer, certifying the receipt of his copy of the document with this signature.

Attention!

The information specified in the duplicate must correspond to the content of the lost original of the employment contract. The information and conditions necessary for drawing up an employment contract are spelled out in the Labor Code.

The employer can also recreate these information and conditions, guided by the orders for employment, taking them from the work book, personal card or other employee's documents.

Is the employment contract concluded anew?

In the personnel department of the plant, the employment contract with the employee was lost, the employee also did not find his copy. Is it possible to conclude an employment contract again without making a duplicate?

The answer is yes. In the absence of legislation on the restoration of lost employment contracts, the employer is free in his actions when solving such a problem. Even if both copies disappeared, the manager may well create and execute a new employment contract with the employee without resorting to making a duplicate, but not forgetting about the information and conditions that were spelled out in the first lost document (Article 57 of the Labor Code of the Russian Federation).

We set the actual date, at the time of the conclusion and signing of the contract, and as a separate item, we put out the date of the employee's hiring. It is highly recommended to include in the text of the new agreement a note that it was concluded and signed to replace the lost one.

An employee who has lost his copy asks the employer to give him a copy of the employment contract. Is the company obligated to satisfy the employee's request?

It is legally established that for documents related to work, the employer is obliged to give the employee copies at his written request (). Since the list of these papers is open, the employee has the right to demand a copy of the employment contract. The employer is obliged to provide the employee with such a copy, completely free of charge, within three working days after submitting the application.

Advice

It may so happen that in the personnel department, quite by accident, through a misunderstanding, they took money from the employee for making a copy of the employment contract. Return the amount immediately with an apology.

The employee asked to certify him with a copy of the employment contract. How to do it right?

The procedure for certifying copies () is legally established, which means that a copy of the employment contract issued to the employee must be properly certified ().

To properly secure a paper copy, it is necessary to write the word "True" (without quotation marks and other punctuation marks) at the bottom of the sheet after all the information entered, indicate the position of the authorized person who certified the copy, ask him to sign and transcribe, affix the date of certification of the document ().

Whether it is worth affixing a seal on a copy of the contract is up to the employer, but to give the document legal significance, the copy is sealed with a stamp.

The employer has the right to refuse the employee's request to give him a notarized copy of the employment contract. According to labor law (Article 62 of the Labor Code of the Russian Federation), he is not at all obliged to issue such documents, unless, of course, such is not spelled out in a local regulatory act. If there is such a record, the employer must fulfill the employee's request, while paying for the notary's services out of his own pocket (Article 62 of the Labor Code of the Russian Federation).

What sanctions should an employer expect if he does not give the employee a copy of the employment contract?

The employee was hired, he signed two copies of the employment contract, after which the documents were transferred to the manager for approval. Some time passed, but the employee did not receive his copy of the contract back. Does this threaten the employer with punishment?

The employment contract is drawn up in two copies. And if one document is in the custody of the employer, then the second will certainly be handed over to the employee ().

Labor legislation is binding. If the employer violates the existing rule, willingly or unwillingly, he may be subject to an administrative penalty (Article 5.27 of the Code of Administrative Offenses).

For such an offense, a fine is threatened, for officials- in the amount of 1 thousand to 5 thousand rubles, an organization, except for a fine from 30 thousand to 50 thousand rubles, may be subject to an administrative suspension of activities for up to 90 days.

An official who has not transferred to an employee his copy of the employment contract and has previously committed a similar offense under this article may be disqualified for a period of one to three years.

Attention!

Under the commission of a similar offense is understood not only the repeated failure to give the employee his copy of the contract, but also the commission of another violation of labor legislation.

An employment contract is an agreement between the employer and the employee, in accordance with which the employer undertakes to provide the employee with work for a specified labor function, to ensure the working conditions provided for by labor legislation and other acts containing norms labor law, collective agreement, agreements, local regulations and this agreement, timely and in full pay the employee the salary, and he - personally fulfill the specified by this agreement labor function, comply with the internal labor regulations applicable to this employer (Article 56 of the Labor Code of the Russian Federation). The obligation to conclude an employment contract is provided for in Art. 16, 56, 57, 67 of the Labor Code of the Russian Federation.
The procedure for the restoration of an employment contract is not established by regulatory enactments, therefore, we believe that if an employment contract has been preserved in electronic form, it is necessary to issue a duplicate of the employment contract. In this case, the duplicate of the document must meet all the requirements that apply to the execution of an employment contract, and be identical to the lost copies of the employment contract.
If there is no electronic form of an employment contract, we recommend concluding a new employment contract. In this case, indicate the date of the conclusion of the contract, and the date of the beginning of the employment relationship - when the employee was accepted into the organization. In addition, in the text of the employment contract, we recommend that you indicate that it was concluded to replace what was lost in connection with the fire.

Very often in companies, not all employees have written employment contracts, despite the fact that this requirement is enshrined in article 67 of the Labor Code of the Russian Federation. They may not be there or they may be out of date - without the necessary information or changes in the process labor activity employee. It happens that an employee has lost his copy of an employment contract and asks for a duplicate.

Neither the procedure for issuing a duplicate nor the restoration of an employment contract is regulated by law. However, the employer issues the required documents. How to do it correctly?

If we are talking about the restoration of an employment contract, which does not exist, then the employment contract is recommended to be drawn up with the current date, indicating in it the entire chronology from the date of the beginning of the employment relationship: when the employee was hired, to what position, to which organization, with what salary, etc. .d. When the name of the organization is changed, it is indicated from what date it has changed. If there were transfers, changes in payment and other conditions, it is also advisable to indicate in the employment contract. Of course, if the employer does not have any data and there is no place to get them, then they are not indicated. Also, in the contract, it is necessary to indicate the job position that the employee now occupies and that's all mandatory conditions, as of today, established by the current labor legislation.

Another option is to conclude an employment contract with the current date indicating the date of the employee's hiring (actual date of admission) and prescribing the current conditions now - in accordance with the employee's position and the requirements of the current legislation. Not including all chronology from the date of admission.

If an employment contract was once drawn up with an employee before the entry into force of the Labor Code of the Russian Federation (for example, in 2000), which was subsequently lost by the employee and there is no contract itself, but there are only written agreements to it, you can issue a duplicate.

Unlike a duplicate work book, the procedure for issuing which is provided for by law, the procedure for issuing a duplicate of an employment contract is not regulated by law, therefore there are no clear instructions. In practice, an employment contract is restored in different ways.

A duplicate document is a copy of it. Changes to the copy are unacceptable, therefore, when issuing a duplicate of an employment contract, it is important to properly certify it. If the employee asks to provide him with a duplicate of the employment contract, then it is necessary to indicate on it: "Duplicate of the employment contract No. __ from 00.00.0000, then indicate the actual date of issue of the duplicate"

When issuing a duplicate, additional agreements and annexes to the employment contract, if any, should not be corrected or destroyed, but should be kept for 75 years, since they have the original signatures of the employee and the employer.

If the name of the organization is changed during the period of validity of labor relations in the duplicate of the employment contract, it will be correct to indicate the previous name of the employer - without making changes to the document, with the certification of the duplicate by the seal of the new organization with a direct indication on the duplicate, when and what kind of reorganization legal entity was and on the basis of what documents.

To protect the interests of the employer, if there are no contracts, it is recommended to first secure their absence by an act, in which it is indicated which of the employees does not have an employment contract.

If the employee has lost his copy of the employment contract and additional. agreements, he only has scanned versions, what should I do? Why might an employee need an original employment contract? What documents (in addition to the employment contract) can he confirm his work experience in the company?

Answer