Lost employment contract. What to do if an employee has lost his employment contract? 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?
An employment contract is concluded upon hiring and is issued in two copies: one remains with the company, the other is given to the employee (Article 67 of the Labor Code of the Russian Federation). Losing a document is an unpleasant situation. This can happen during an office move, a fire, or an employee may lose a contract due to his own fault. How to restore an employment contract if lost?
Depending on the situation
There are no specific regulations in the legislation, following which you can carry out the procedure for restoring a document. The company must provide for the formation of local acts and, in case of loss, be guided by them.
If the contract is lost by one of the parties, a copy is made from the remaining original, on which a “duplicate” is signed.
If a document is lost by an organization, it can make a duplicate employment contract based on the form available to the employee. If an employee has lost the document, the company issues him a duplicate, drawn up in accordance with the original. However, in this version of the document, signatures cannot be duplicated - they are affixed by both parties anew. The issued contract must be marked “duplicate”. It has the power of the original. A sample document can be viewed.
If the contract is lost by both parties (and this happens extremely rarely), a new document is drawn up. The order to hire an employee for a position is the main document on the basis of which the employment contract is restored (taking into account all the notes in the employee’s card and his work book). A note is placed on the form indicating that it was compiled to replace the lost one.
Restoring an employment contract is an unpleasant situation, but solvable. A duplicate is a document of equal strength and can be stored in the company’s database and in the hands of the employee. A different situation arises if the contract was terminated illegally. In this case, the issue of his reinstatement and illegal dismissal is resolved in court.
All employment contracts have been lost. How can an employer restore them? How to properly draw up a duplicate of an employment contract? Is the employment contract concluded again? The employee asked to have a copy of the employment contract certified to him. How can I properly certify this copy? What sanctions should an employer expect if he has not given the employee a copy of his employment contract?
All employment contracts have been lost. How can an employer restore them?
Labor legislation does not directly stipulate the procedure for reinstating employment contracts. Therefore, the employer can develop it individually for his company on his own. For example, draw up a separate local regulatory act dedicated to this issue, add a corresponding column to the Instructions for personnel records management ().
It can be stipulated in advance that if for any reason the original employment contract is lost, a duplicate of it will be 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 is carried out and within what time frame.
By the way, the employer can determine the following procedure: lost originals of employment contracts can be restored based on the copies in the hands of employees. Thus, if this right of the employer is spelled out in the company’s internal regulations, it will be legal to request their employment contracts from employees within three working days from the date of discovery of the loss. The employer, guided by them, will make duplicates and return copies to employees. Such actions must be limited to a certain time frame. For example, the employer or personnel officer, as his representative, undertakes to do everything within the working week.
Attention!
Labor legislation does not stipulate deadlines for drawing up a duplicate of an employment contract. The period, therefore, can be any, but within reason, and not stretched out over many months.
The employer can additionally enter his copies of employment contracts into the electronic database. Then a local regulatory act can stipulate that paper duplicates of contracts will be drawn up on the basis electronic documents. This means you won’t have to ask your employees for copies, which will help significantly reduce paperwork.
How to properly draw up a duplicate of an employment contract?
If both copies of the employment contract are lost, how to properly prepare its duplicates?
Let us repeat that the law does not have an established procedure for drawing up a duplicate of an employment contract. The employer reserves the right to create it independently by specifying it in local regulations.
When creating a procedure for processing 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 party puts its signature (). This means that duplicates of lost documents must also be prepared and sealed in a similar way. In addition, the employee must sign the employer’s duplicate, certifying with this signature the receipt of his copy of the document.
Attention!
The information specified in the duplicate must correspond to the contents of the lost original employment contract. The information and conditions necessary for drawing up an employment contract are specified in Labor Code.
The employer can also recreate this information and conditions, guided by employment orders, taking them from work book, personal card or other employee documents available.
Is the employment contract concluded again?
In the plant's personnel department, the employment contract with the employee was lost, and the employee also did not find his copy. Is it possible to conclude an employment contract again without drawing up a duplicate?
The answer is yes. In the absence of legislation on the restoration of lost employment contracts, the employer is free to act in solving such a problem. Even if both copies have disappeared, the manager may well create and formalize a new employment contract with the employee, without resorting to making a duplicate, but without forgetting about the information and conditions that were specified in the lost first document (Article 57 of the Labor Code of the Russian Federation).
We set the actual date, at the time of concluding and signing the contract, and as a separate item, we include the date the employee was hired. It is strongly recommended to include in the text of the new contract a note stating that it has been 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 grant the employee's request?
It is established by law that the employer is obliged to provide copies to the employee upon his written application (). Since the list of these papers is open, the employee has the right to request 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 happen that the HR department, completely by accident, due to a misunderstanding, took money from the employee for making a copy of the employment contract. Return the amount to him immediately with an apology.
The employee asked to have a copy of the employment contract certified to him. How to do this correctly?
The procedure for certification of copies () is established by law, which means that the copy of the employment contract issued to the employee must be properly certified ().
To properly secure a paper copy, you must write the word “True” (without quotation marks or 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 decipher it, and put the date of certification of the document ().
The employer decides whether it is worth putting a stamp on the copy of the contract, but in order to give the document legal significance, the copy is sealed.
The employer has the right to refuse the employee’s request to give him a notarized copy of the employment contract. According to labor legislation (Article 62 of the Labor Code of the Russian Federation), he is not at all obliged to issue such documents, unless, of course, this is stipulated in a local regulatory act. If there is such a record, the employer must comply with the employee’s request, while paying for the notary’s services from his own pocket (Article 62 of the Labor Code of the Russian Federation).
What sanctions should an employer expect if he has not given 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 submitted to the manager for approval. Some time passed, but the employee never received his copy of the agreement 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 is certainly handed over to the employee ().
Labor legislation is mandatory. If an employer violates an existing rule, wittingly or unwittingly, he may be subject to administrative penalties (Article 5.27 of the Code of Administrative Offenses).
For such an offense there is a fine, for officials - in the amount of 1 thousand to 5 thousand rubles, the organization, in addition to a fine of 30 thousand to 50 thousand rubles, may be subject to administrative suspension of activities for up to 90 days.
An official who did not give the employee his copy of the employment contract and who previously committed a similar offense under this article may be subject to disqualification for a period of one to three years.
Attention!
The commission of a similar offense means not only the repeated failure to provide the employee with his copy of the contract, but also the commission of another violation of labor legislation.
If the employee has lost his copy of the employment contract and additional information. agreements, he only has scanned versions left, what should he do? Why might an employee need an original employment contract? What documents (besides the employment contract) can he confirm his length of service with the company?
Answer
Answer to the question:
Having considered your question, we can say that the legislation does not contain any procedure for action in the event of the loss of an employment contract by one of the parties.
The employment contract is concluded in writing and drawn up in two copies, each of which is signed by the parties. The employer gives one copy of the employment contract to the employee, and keeps the other one for himself. The employee's receipt of a copy of the employment contract must be confirmed by the employee's signature on the copy of the employment contract kept by the employer.
Accordingly, if a copy of the employment contract is lost by only one of the parties, then it can be restored by issuing a duplicate from a copy stored by the other party.
If both parties do not have an employment contract, i.e. for both the employee and the employer:
Availability labor relations, not supported by a written employment contract, does not cancel the very fact of the employment relationship. But since current legislation still requires a written employment contract, if it is lost by both parties, it is necessary to conclude a new employment contract. In this case, it can be restored on the basis of the employment order, entries in the work book and the employee’s personal card. In this case, the date of execution of the contract will be the current date, and the date of hiring the employee will be the actual date of his return to work (according to the entry on employment in the work book). It is recommended to attach to the executed contract documents confirming the employment relationship with the employee (copies of orders, time sheets), starting from the moment of hiring until the day the employment contract is concluded.
If, suddenly, you cannot restore the employee’s employment contract due to the lack of other supporting documents (for example, an employment order, etc.), then draw up a new employment contract with the employee, reflecting in it actual working conditions (wages, working hours, etc.) and guarantees provided to the employee, valid as of the current date, and not on the date of hiring. The date of execution of the contract will also be The current date, but the date the employee was hired (work start date) is the actual date of his return to work(according to the employment entry in the work book). It is also recommended to attach to the contract documents confirming the employment relationship with the employee (copies of orders for employment, transfer, relocation, etc.) from the moment of hiring until the day the employment contract is concluded.
Note:
If you have saved a photocopy of the employment contract, you can use it to draw up a duplicate of the employment contract.
Regarding the question of what other documents an employee can confirm work in the organization:
First of all, the employee can confirm his work with a work book, and if necessary, the employee can request a certificate from the place of work about the periods of work in the organization.
Details in the materials of the Personnel System:
The employment contract is concluded in writing and drawn up in two copies, each of which is signed by the parties. The employer gives one copy of the employment contract to the employee, and keeps the other one for himself. The employee's receipt of a copy of the employment contract must be confirmed by the employee's signature on the copy of the employment contract kept by the employer. This is stated in the Labor Code of the Russian Federation.
If an employee has lost his copy of the employment contract, the employer can restore it by issuing a duplicate from the copy stored with him. A duplicate is the second or subsequent copy of any written document, which, unlike a copy, is identical to the original legal force. A duplicate is issued if the original document is lost.
To draw up a duplicate of an employment contract, you must make a regular copy of a copy of the employer’s employment contract, then write the word “Duplicate” on the title page. Next, the employer and employee must put their signatures on the duplicate. After this, a duplicate of the employment contract must be issued to the employee.
Situation:What to do if an employer has lost his copy of the employment contract
The legislation does not contain a clear answer to this question.
The employment contract is concluded in writing and drawn up in two copies signed by both parties. One copy of the employment contract is given to the employee, the other is kept by the employer. The employee's receipt of a copy of the employment contract must be confirmed by his signature on the copy of the employment contract kept by the employer. This is stated in the Labor Code of the Russian Federation.
If the employer has lost his copy of the employment contract, he can restore it by issuing a duplicate from the copy kept by the employee. A duplicate is the second or subsequent copy of a written document, which, unlike a copy, has the same legal force as the original. A duplicate is issued if the original document is lost.
To draw up a duplicate of an employment contract, you need to make a regular copy of a copy of the employee’s employment contract, then write the word “Duplicate” on the title page. Next, the employer and employee must put their signatures on the duplicate. After this, a duplicate of the employment contract is kept by the employer and has the same legal force as the original.
There is a likely situation where an employee will also not have his copy of the employment contract. The presence of an employment relationship that is not supported by a written employment contract does not negate the very fact of the employment relationship. But since current legislation still requires a written employment contract, if it is lost by both parties, it is necessary to conclude a new employment contract. In this case, it can be restored on the basis of the employment order, entries in the work book and the employee’s personal card. In this case, the date of execution of the contract will be the current date, and the date of hiring the employee will be the actual date of his return to work (according to the entry on employment in the work book). It is recommended to attach to the executed contract documents confirming the employment relationship with the employee (copies of orders, time sheets), starting from the moment of hiring until the day the employment contract is concluded.
Ivan Shklovets,
Deputy Head Federal service on labor and employment
- Situation:What to do if an employee has lost his copy of the employment contract
- Situation:Is it necessary to conclude a written employment contract with an employee who was hired before 1992 and continues to work in the organization. When hiring, the employment contract was concluded orally
Yes need.
According to the current procedure, labor relations between an employee and an employer arise on the basis of (Art., Labor Code of the Russian Federation).
Thus, with employees hired starting from October 6, 1992, employment contracts are concluded exclusively in writing. And with regard to employees hired before the specified date, the following approach has developed.
If an employee agrees to the employer’s proposal to formalize the relationship in writing, then the latter draws up an employment contract in general procedure. In the concluded agreement, reflect the actual working conditions (wages, working hours, etc.) and the guarantees provided to the employee, valid as of the current date, and not on the date of hiring. The date of execution of the contract will also be the current date, but the date of hiring the employee will be the actual date of his return to work (according to the entry on employment in the work book). It is recommended to attach to the contract documents confirming the employment relationship with the employee (copies of orders, time sheets) from the moment of hiring until the day the employment contract is concluded.
If an employee refuses to draw up a written employment contract, then you need to obtain a written refusal from him. The presence of such a refusal will allow the employer to confirm to the specialists of the regulatory agencies the fact that they have taken appropriate measures to formalize the employment contract in writing. Job description of a personnel officer - 2020: current requirements and functionality
There is not a single mention of job descriptions in the Labor Code. But HR officers simply need this optional document. In the magazine "Personnel Affairs" you will find the latest job description for a personnel officer, taking into account the requirements of the professional standard.
Check your PVTR for relevance. Due to changes in 2019, provisions in your document may violate the law. If the State Tax Inspectorate finds outdated formulations, it will fine you. Read what rules to remove from the PVTR and what to add in the “Personnel Affairs” magazine.
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Question
During the personnel audit, it turned out that the employer and employee do not have a single signed employment contract with employees. What is the correct way to restore personnel documentation now and conclude employment contracts and employment orders with everyone?
Answer
The procedure for reinstating an employment contract regulations not installed.
It is recommended to enter into a new employment contract. In this case, indicate the current date of conclusion of the contract, and the date of the beginning of the employment relationship - when the employee was hired by the organization. To restore documentation, the employer is recommended to issue an order about the loss of documentation, a list of lost documents, the timing of their restoration and indicate the person who is responsible for restoration personnel documentation. This order may be issued on the basis of an Office or Report of the responsible person, which records the fact of the absence of employment contracts.
Rationale
Issues of organizing the storage, acquisition, recording and use of documents are regulated by the Federal Law of October 22, 2004 N 125-FZ (as amended on June 18, 2017) “On Archival Affairs in the Russian Federation.” Legal regulation the procedure and terms of storage of personnel documents is carried out on the basis of the List of standard management archival documents generated in the process of activity government agencies, organs local government and organizations, indicating storage periods, approved by Order of the Ministry of Culture of Russia dated August 25, 2010 N 558. Section 8 “ Staffing» of the specified List contains information about the storage period for personal files, including copies of employee orders. Organizations are obliged to ensure the safety of archival documents, including documents on personnel, during their storage periods established by federal laws and other regulations legal acts Russian Federation, as well as lists of documents provided for in Art. 23 Federal Law N 125-FZ. These documents have a shelf life of 75 years. A storage period of 1 year is established for the vacation schedule and 3 years for other vacation documentation.
Thus, in the event of loss of personnel documents with employee signatures, the employer should restore them, since current legislation imposes an obligation on the employer to ensure the safety of personnel documents.
The procedure for reinstating an employment contract is not established by regulations.
To restore documentation, the employer is recommended to issue an order on the reasons for the loss of documentation, the 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 an Office or Report of the responsible person, which records the fact of the absence of employment contracts (and, if possible, the reason for their loss).
According to specialists from regulatory authorities (see Question: There was a fire in our office and all personnel documents were lost. With the restoration of work records, we resolved the issue. We don’t know how to restore copies of employment contracts. The situation is further 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 is saved in electronic form, you need to issue a duplicate of the employment contract. In this case, the duplicate document must meet all the requirements for drawing up 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 current date of conclusion of the contract, and the date of the beginning of the employment relationship - when the employee was hired by the organization. In addition, we recommend indicating in the text of the employment contract that it was concluded to replace a lost one.
In our opinion, the safest option for the employer is the second option, since the possibility of drawing up a duplicate employment contract is not directly provided for by the current one. labor legislation(such as, for example, the ability to issue a duplicate work book).
We recommend: additionally familiarize yourself with the material posted in SPS ConsultantPlus - Question: What can an employer do if personnel orders with employee signatures are lost (in particular, on vacations and personnel transfers)? What is the procedure for restoring them? Is it necessary to restore such orders for dismissed employees? (Expert Consultation, 2012) (ConsultantPlus)
Very often, companies do not have written employment contracts for all employees, despite the fact that this requirement is enshrined in Article 67 of the Labor Code of the Russian Federation. They may not exist or they may be outdated - without updating necessary information or changes in the process labor activity employee. It happens that an employee has lost his copy of the 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 this correctly?
If we're talking about about the restoration of an employment contract that does not exist, then it is recommended that the employment contract be drawn up with the current date, indicating in it the entire chronology from the date of the start of the employment relationship: when the employee was hired, for what position, in what organization, with what salary, etc. When the name of the organization is changed, the date on which it changed is indicated. If there were transfers, changes in pay and other conditions, it is also advisable to indicate this in the employment contract. Of course, if the employer does not have some data and there is nowhere to get it from, then it is not indicated. It is also necessary to indicate in the contract the position that the employee currently occupies and that’s it. prerequisites, currently established by current labor legislation.
Another option is to conclude an employment contract on the current date, indicating the date of the employee’s hiring (real date of hire) and specifying the current conditions now - in accordance with the position occupied by the employee and the requirements of current legislation. Does not include the entire chronology from the date of admission.
If an employment contract was once drawn up with an employee before the Labor Code of the Russian Federation came into force (for example, in 2000), which was subsequently lost by the employee and there is no contract itself, but only written agreements to it, you can issue a duplicate.
Unlike a duplicate of a 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, so there are no clear instructions. In practice, an employment contract is restored in different ways.
A duplicate of a document is a copy of it. Making changes to the copy is unacceptable, therefore, when issuing a duplicate of the employment contract, it is important to have it certified correctly. If an employee asks to provide him with a duplicate of an employment contract, then it is necessary to indicate on it the following inscription: “Duplicate of employment contract No. __ dated 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 adjusted or destroyed, but should be stored for 75 years, since they have the original signatures of the employee and the employer.
If the name of the organization changes during the validity period of the employment relationship, it will be correct to indicate the previous name of the employer in the duplicate employment contract - without making changes to the document, with the duplicate certified by a seal new organization with a direct indication on the duplicate of 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 that their absence is first formalized in an act in which it is indicated which of the employees does not have an employment contract.
