Judicial protection of workers' labor rights: problems of implementation

Shishulina Tat'yana Petrovna PhD in Law Associate Professor, Department of Documentation, History, Law and Russian Language, Russian State Vocational Pedagogical University 620042, Russia, Sverdlovsk region, Yekaterinburg, ul. Bakinsky Komissarov, 60, sq. 82 zvezdochka.76@inbox.ru Other publications by this author

The most common way to protect the labor rights of workers in the era of capitalism is to go to court. Such a high confidence of employees in this method is due to the minimization of the effect of subjective factors on decision-making.

There are other, pre-trial ways of defending violated rights and legitimate interests, which include independent negotiations between the employee and the employer, as well as the participation of third parties who are direct participants in the organization's activities and are guided mainly by their own vision of the situation, which is not always objective. Judicial protection of labor rights allows:

- to involve professional lawyers (judges, lawyers) in dispute resolution, which guarantees the necessary knowledge in the field of labor dispute resolution, objectivity and compliance with the norms of the legislation of the Russian Federation;

- minimize the injured employee's own participation in resolving the conflict situation by sending a representative to the court.

The latter is especially important in the presence of psychological pressure from the employer, which is a characteristic problem for specially protected categories of workers (disabled, pregnant employees, etc.).

Going to court is often the only opportunity for an employee to delve into the essence of labor relations and get high-quality legal advice, because the cost of legal advice often exceeds the income level of the injured employee. At the same time, the judicial protection of an employee's labor rights is based on his weak position and, as a result, provides for a number of compensatory measures aimed at achieving balance and making a fair decision ^[1].

In accordance with Article 391 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), individual labor disputes are considered in courts based on the statements of an employee, employer or trade union protecting the interests of an employee when they disagree with the decision of the Labor Dispute Commission (hereinafter referred to as the CCC), or when an employee goes to court, bypassing The CCC, as well as at the request of the prosecutor, if the decision of the CCC does not comply with labor legislation and other acts containing labor law norms. The court also acts as the only instance in which it is possible to resolve disputes of persons with whom the employer has not concluded or has already terminated an employment contract.

The latter often causes significant problems in judicial practice, since the burden of proof is placed on the employee, which, in the absence of high-quality pre-trial work to collect evidence, leads to a large number of refusals to satisfy such claims. It is also not necessary to exclude such a factor as the quality of the performance of judges assigned to them duties. The workload of the judicial system in the period following the end of the first wave of the pandemic has become a heavy burden not only for the country's budget, but also for court employees. A huge number of disputes of the same type, in which, in view of the current economic and political situation in the country, all the parties involved turned out to be right in their own way, led to the fact that the consideration of disputes began to be formal, and those who were able to better convey their own position in the courtroom were recognized as right. As a result, one of the fundamental directions of improving the protection of workers' labor rights is the creation of specialized labor courts.

Judicial protection in the field of labor relations has its own specific features. The specifics of resolving cases on disputes arising from labor relations no longer fit into the general provisions of civil procedural legislation. This indicates that it is also necessary to develop a specialized labor procedural code that allows you to establish rules for resolving this category of disputes. This has been repeatedly discussed by experts in the field of labor relations and human rights defenders.

The Civil Procedure Code of the Russian Federation (hereinafter referred to as the CPC of the Russian Federation) ^[2] is initially focused on resolving issues in conditions of relative equality of the parties to civil disputes, which obviously does not correspond to the specifics of disputes in the field of labor relations, where the employee occupies a more vulnerable position and needs effective protection from the legislator and the judicial system.

As already noted, the protection of workers' labor rights is a complex and often multilevel process, the final stage of which is interaction with judicial authorities. In fact, the entire protection of labor rights is divided into two main stages: pre-trial and judicial protection. The effectiveness of the last stage often directly depends on how competently negotiations with the employer were implemented at the initial stages of conflict resolution, as well as the collection of evidence confirming the words of the employee.

At the same time, the legislator does not prohibit employees from immediately proceeding to a judicial settlement of the dispute, bypassing the pre-trial stage, and in some situations, going to court is the only way to protect their rights. One of such situations is the actual refusal of the employer to conclude an employment contract with an employee. As a result, a failed employee cannot use other methods of protection provided for current or recently dismissed (reduced) specialists.

Thus, in accordance with Part 1 of Article 64 of the Labor Code of the Russian Federation, there is a ban on refusal to conclude an employment contract for circumstances unrelated to the employee's business qualities. The employer is obliged to conclude an employment contract with the person who has successfully passed the interview, except in cases of revealing the presence of restrictions established by federal laws, and in case of refusal, inform the applicant about his reasons in writing within seven days from the date of receipt of the relevant request.

At the same time, as practice shows, employers quite often refuse applicants to conclude an employment contract for reasons reflecting the employer's own subjective feelings about the effectiveness of the future employee. One of the standard reasons for refusal are: the age of the applicant, gender, the presence of children or the possibility of having them in the near future, refusal to work on conditions that obviously infringe on the rights of the employee, etc. At the same time, employers who are aware of the possible prospects of responsibility for voicing the real reasons for refusal are developing their own "safe" ways to politely refuse unwanted candidates. Others, on the contrary, continue to pursue an aggressive policy in this direction, replenishing judicial practice with new materials.

Thus, the employment center of Moscow citizen Kurstkov A.I. (hereinafter referred to as the plaintiff) was sent to JSC "Institute Orgenergostroy" (hereinafter referred to as the defendant) for an interview for the vacancy of a leading engineer, which is quota–based and is provided for the employment of persons with disabilities. When Kurstkov applied to the specified organization, he was not properly interviewed, further information was received about the refusal to apply for a job without explanation. Upon re-referral to the organization, the situation repeated itself, which led the plaintiff to the need to defend his rights in court ^[3].

In two judicial instances, Kurstkov was denied satisfaction on the recognition of the refusal of employment for work as illegal, on the obligation to hire, on the recovery of wages. The reason for the refusal was the opinion that the employer reasonably considered the applicant not having sufficient professional qualities and work experience to fill the position of a leading engineer, ignoring the fact that the plaintiff had held this position in another organization since 1985.

The appeal to the Judicial Board for Civil Cases of the Armed Forces of the Russian Federation led to the cancellation of court decisions and the return of the case for a new hearing on the following grounds:

- Kurstkov has the necessary qualifications and work experience to fill this vacancy;

- the job interview was of a formal nature, the plaintiff's documents confirming his professional qualities and work experience were not studied;

- the employer gave various reasons for refusing to accept a job, including: non-compliance with the requirements of the vacancy, failure to pass an introductory interview, absence of a vacancy in the staffing table.

Thus, the Judicial Board of the Supreme Court of the Russian Federation came to a reasonable conclusion about the presence of signs of discrimination against the plaintiff when hiring and the absence of confirmation of his non-compliance with the qualification requirements for this position put forward by the organization.

This situation shows the existence of a hidden confrontation between the state system that protects the rights of people with disabilities and other persons who may have problems in hiring, as well as employers, whose interests are often not related to solving acute social problems involving possible costs of workers and financial resources. Such thinking is characteristic not only of representatives of commercial organizations, but also of civil servants, who are often faced with the task of ensuring the smooth operation of the entrusted departments of state bodies in conditions of significant restrictions on the number of workers and the level of wages that can be offered to them.

Thus, according to the case materials ^[4], M.A. Coverda filed a lawsuit with the federal executive authority (hereinafter referred to as the employer's representative) to declare illegal the refusal of admission to the state civil service as an adviser to the relevant department, to oblige to conclude a contract for the passage of the state civil service in this position.

During the consideration of the case, it turned out that the plaintiff initially applied for the vacant positions of the senior group, but then, due to pregnancy, she wrote an application for enrollment in another department for the position of adviser for a period until the child reaches the age of three years, and the plaintiff, accordingly, will be able to work in a more stressful mode. The application was signed by the heads of the relevant departments, but it never came to employment.

After a couple of months, during which the plaintiff had an introductory internship as part of her duties in the department where she had previously applied, being confident of employment, Coverda M.A. applied for dismissal from her previous job. The plaintiff was informed orally about the refusal to accept the desired place of work, which was agreed earlier. The reason for the refusal was her pregnancy.

The court of the first and appellate instance recognized the refusal of registration as justified, because the employer did not make any promises about the subsequent employment of the plaintiff, as clearly evidenced by the absence of documents confirming the occurrence of labor relations. The Judicial Board for Civil Cases of the Supreme Court of the Russian Federation recognized the conclusions of the courts of the first and appellate instances based on the incorrect application of the norms of substantive law and made in violation of the norms of substantive and procedural law in accordance with the following grounds:

- Article 19 of the Constitution of the Russian Federation contains a direct ban on discrimination based on gender, race, age, religion and other personality-defining qualities;

- in continuation of the ideas laid down in the Constitution of the Russian Federation, Article 3 of the Labor Code of the Russian Federation prohibits discrimination in the field of labor;

- in paragraph 3 of the RF Supreme Court No. 1 "On the application of legislation regulating the work of women, persons with family responsibilities and minors" ^[5] it is explained that within the meaning of Article 3 of the Labor Code, discrimination in the sphere of labor should be understood as a difference, exclusion or preference, resulting in the elimination or violation of equality of opportunities in the exercise of labor rights and freedoms or obtaining any benefits, depending on any circumstances unrelated to the business qualities of the employee (including those not listed in the specified article of the Labor Code of the Russian Federation), in addition to those determined by the requirements inherent in this type of work established by federal law, or due to the special care of the state for persons in need of increased social and legal protection.

Thus, in the actions of the employer, the court saw signs of discrimination of the plaintiff as a person in need of increased social and legal protection. Despite the absence of documents confirming the emergence of an employment relationship between the plaintiff and the employer, based on the established judicial practice and the general principles of reasonable behavior of citizens aimed at satisfying their own needs for material security, the plaintiff's intentions in this case are not subject to discussion. The difference in the legal regulation of labor relations of persons subject to the norms of the Labor Code of the Russian Federation and persons in public service in this case should not be taken into account, because one of the main interests of the state is the protection of motherhood and childhood, as clearly evidenced by the constitutional norms that apply to all citizens. As a consequence, the presence of an employee in need of additional protection in the civil service does not serve as a basis for refusing to provide protection.

At the same time, it should be noted that there are cases in judicial practice in which the employer's refusal to hire was fully justified, although it did not always meet the formal requirements of the legislator in terms of specifying the exact reason for the refusal.

So, according to the case materials ^[6], S.L. Voitenko appealed to the court with a demand to declare illegal the refusal to accept a job as a resuscitator-anesthesiologist. According to the plaintiff, the presence of a cancelled criminal record for causing the death of a patient by negligence under Part 2 of Article 109 of the Criminal Code of the Russian Federation is direct evidence of the restoration of his professional qualities and obliges the employer to accept him to his former position. The plaintiff's availability of appropriate qualifications is confirmed by the availability of professional education in the specialty, regular completion of advanced training courses and general work experience in the specialty for more than thirty years.

At the same time, according to the court, the refusal to hire due to professional unfitness is fully justified, since we are talking about a confirmed negligent attitude to the immediate duties of a doctor. This fact of S.L. Voitenko's biography, despite the expunged criminal record, is a contraindication for performing this type of work in view of the danger of repeating history with a fatal outcome for new patients. Moreover, the materials provided by the employer contained information about regular violations of labor discipline by this employee, which, given the nature of the position, also indicates unprofessional behavior of the plaintiff.

Thus, even the appropriate education and the necessary work experience cannot guarantee a person employment if his professional reputation promises problems to the employer and the end users of the organization's services. It is also not possible to force an employer to conclude an employment contract on certain conditions that are beneficial to the employee, but for some reason are not interesting to the employer, because in this case freedom of contract applies, and the employer has the right to choose employees on their own terms, without violating the legislation of the Russian Federation.

The existence of discrimination in hiring must be explicit and confirmed by the presence of a direct relationship between the employer's refusal to hire and the presence of a discriminatory factor. For example, in the framework of a court case considered by the Yashaltinsky District Court of the Republic of Kalmykia ^[7], no such circumstances were revealed. According to the plaintiff, she was verbally denied employment as the chief choirmaster of a local cultural institution for reasons unrelated to her professional qualities. As it turned out during the consideration of the case, this vacancy was indeed opened in a local cultural institution, but the employer decided to exclude the position of chief choirmaster from the staffing table and introduce two choirmaster positions, as well as take two specialists to a new position, each for half the rate. At the same time, the plaintiff had the appropriate education and work experience, and the second hired specialist, in her opinion, was absent, which caused suspicions of dishonesty of the employer.

At the same time, according to the information provided by the employer, the person accepted for the position of choirmaster for half the rate has the necessary education and work experience in this area. As a consequence, he occupies the proposed position by right. Thus, the court came to a reasonable conclusion that there were no facts of discrimination in this case. The claim was denied in full.

In the two cases mentioned above, when the court turned out to be on the side of employers, there is a clear misunderstanding by employees of their rights and the level of responsibility within the framework of labor relations. Labor relations are, first of all, a set of mutual agreements between an employee and an employer aimed at achieving mutual goals: for an employer – high–quality services for an acceptable fee, for an employee – the highest possible level of income, stability, professional self-realization (depending on the subjective wishes of the employee, this list may change). As a result, the best way to protect one's labor rights and professional interests is to achieve a balance in the agreements with the employer and reflect all the essential aspects of the future relationship. In this connection, it is necessary to address such an important problem in the relationship between an employee and an employer as the refusal to formalize an employment contract during the actual performance of labor duties or the reflection in it of conditions that do not correspond to the actual agreements of the parties.

Often, the refusal to formalize an employment relationship with an employee is tacit. The employer, accepting an employee for a position, takes a standard package of documents for registration, promising to carry out standard procedures for registration of a new employee in the near future, but these events are constantly postponed "for good reasons." At the same time, the legislator absolutely unambiguously establishes the obligation of the employer to carry out the registration of the employee from the first day of work, and no organizational problems are grounds for refusing this procedure.

So, Vorobyova A.M., who actually held the position of senior seller in a store owned by IP Egorov M.V., filed a lawsuit with the court. As it turned out during the consideration of the case ^[8], citizen Vorobyova, after passing an interview and approving her for the position of senior seller, gave the employer the necessary documents for registration, but the corresponding entry in the labor I did not wait for the book, although the employment contract was still issued. Having worked for more than a year without a work record and conscientiously fulfilling the duties assigned to her, Vorobyova, upon dismissal, learned about the absence of an entry in the labor register and, accordingly, deductions to various funds, and was forced to go to court to establish the fact of labor relations.

Thus, in this case, the employment contract was drawn up "as a distraction" to hide the employer's unwillingness to bear the costs of maintaining the staff. At the same time, due to the fact that all the accompanying documentation (schedule of shifts, vacations, etc.) was conducted in working mode, it was not difficult to prove the existence of an employment relationship between Vorobyova A.M. and IP Egorov M.V. and oblige the employer to make an appropriate entry in the work book.

The situation is much more complicated if the employee does not have access to any documentation of the organization, which reflects the observance of labor discipline, vacation schedules and other aspects of permanent employment, or the employer intentionally does not issue copies of such documents to the employee to prevent his subsequent appeal to the court in the event of a conflict situation. As a result, it is necessary to prove the existence of an employment relationship through testimony, screenshots of correspondence with the employer on the network, recorded telephone conversations and other means of self-defense of the employee.

At the same time, in terms of proving a violation of an employee's labor rights upon dismissal, the absence of an employment contract can sometimes be beneficial for an employee, since in this case he is considered to have been hired without passing a probationary period. The probationary period is one of the essential elements necessary for building long-term and long-term labor relations. By setting a probationary period, the employer gives the employee the opportunity to adapt to a new organization or a new position, really assessing their capabilities and desire to do a certain job. The probationary period in managerial positions and positions related to the distribution of material assets is especially important, because often the losses and shortages are discovered, after some time, during the audit.

Returning to the issue of protecting the labor rights of employees in the absence of an employment contract, which specifies all the essential aspects of the relationship between the employee and the employer, the employer is deprived of the right, upon the actual dismissal of the employee, to refer to the failure of the last probation period. If there are conditions for a probationary period in the employment contract and dismissal on the basis of Part 1 of Article 71 of the Labor Code of the Russian Federation, it is important to correctly and timely notify the employee of the employer's intentions to terminate cooperation unilaterally. Violation of this rule leads the parties to court, because the dismissal of an employee due to non-completion of probation is an aggravating circumstance in his subsequent employment.

So, Drobyshev S.I. (plaintiff, employee) filed a lawsuit against LLC "Firm "VIPS-MED" (defendant, employer) for recognition of dismissal illegal, recovery of wages for forced absenteeism, compensation for moral damage, reinstatement at work. Drobyshev was dismissed by the employer as not having passed the test when applying for a job, but he did not agree with the employer's decision, because he had previously submitted an application for dismissal by agreement of the parties.^[9]

As it turned out during the consideration of the case, when applying for a job, the employer did not take into account some features of Drobyshev's health, which did not allow him to work in harsh conditions, about which the first was informed orally by the employee's mother. At the same time, Drobyshev, upon admission to work, passed the necessary instruction and, in general, had an idea on what conditions the interaction would be carried out. Somewhat later, before the end of the probation period, feeling unwell due to working conditions, the plaintiff left the workplace, passing through the mother a letter of resignation by agreement of the parties. However, due to the format of the application (the business style of the letter was violated) and the method of notification, the employer did not take this document seriously and subsequently dismissed the employee for not passing the probation period.

Violation of the procedure established by the legislator and unwillingness to meet the employee halfway in terms of dismissal by agreement of the parties played a cruel joke with the employer. The court declared illegal the order to dismiss Drobyshev under Article 71 of the Labor Code of the Russian Federation as having unsatisfactorily passed the probation period, changed the date of dismissal of the plaintiff to a later date and the wording of the dismissal from Article 71 of the Labor Code of the Russian Federation to Article 80 of the Labor Code of the Russian Federation, and also collected wages for forced absenteeism from LLC "Firm "VIPS-MED" in favor of Drobyshev from 13.02.2020 to 30.07.2020 in the amount of 107467 rubles 98 kopecks, on account of compensation for unused vacation 4758 rubles 17 kopecks, compensation for moral damage in the amount of 10,000 rubles 00 kopecks.

Objectively assessing the situation, all negative consequences for the employer could have been avoided by pre-trial settlement of the conflict, including consideration of the employee's claim that it is impossible to carry out work in unbearable conditions for him and a joint search for other options to continue or terminate the employment relationship. Failure to pass the probation period can hide many reasons, not always related to the professional suitability of the employee. As a result, an attempt to delve into the reasons for the failure to properly perform work duties, demanding explanatory notes from the employee and making efforts to correct the situation are one of the prerequisites for solving the problems that have arisen while maintaining a balance of interests.

At the same time, modern employers, especially representatives of small businesses, who are not experienced in legal matters, tend to resort to various tricks in order to save resources and possible evasion of responsibility instead of deepening knowledge in terms of legal regulation of interaction with hired personnel. Thus, a common way to deceive employees is to replace an employment contract with a civil contract that provides for the provision of services, one-time or for a certain period. At the same time, a lot of obligations related to the performance of work duties are imposed on the employee, and the employer continues to be in the status of a customer, saving his own funds and plunging into unreasonable expenses of an employee who is listed as a performer.

The establishment of the existence of an employment relationship between the parties is carried out in court. It is the plaintiff, according to the provisions of Article 56 of the Civil Procedure Code of the Russian Federation, who is obliged to prove the agreement between the parties on the conclusion of an employment contract, the existence of essential (mandatory) conditions of this contract in accordance with Article 57 of the Labor Code of the Russian Federation: place of work, labor function, start date, working hours and rest, conditions of remuneration, place of performance of labor obligations, the term of the employment contract, etc.

So, according to the case materials ^[10], Kaplenko Yu.V. (plaintiff, employee) appealed to the court with a claim for recognition of labor relations, recovery of wage arrears, court costs to IP Bashkov V.V. The plaintiff received information about the availability of a vacancy from social networks and, contacting a potential employer, joined a team from six people to carry out repair activities in an apartment building.

The employment contract with the plaintiff was not concluded, the agreement between the plaintiff and the defendant was oral. For each working day, Kaplenko had to receive a payment of 1,000 rubles. However, after working for two weeks, the plaintiff could not get the agreed payments from the defendant.

Since in such situations the legislator shifts the burden of proof to the employee who suffered as a result of the relationship with the actual employer, and Kaplenko did not have access to the defendant's documentation concerning the establishment of work schedules and other documents confirming the emergence of labor relations, other types of evidence were provided to the court. The case materials established that Yu.V. Kaplenko, being a member of the brigade, threw off slag from the roof of an apartment building, laid a board floor, and also treated the boards with a special solution on the roof of an apartment building. In the course of work on behalf of the defendant, Yu.V. Kaplenko also helped to verify the received materials on documents with those actually used during work, carried out photo and video recording of the work done and sent photos and videos to V.V. Bashkov Based on the explanations of the plaintiff and her representative given during the trial, and the evidence presented by them in support of their claims, the court believes, and there is no evidence to the contrary in the case materials, that an employment relationship has developed between Kaplenko Yu.V. and IP Bashkov V.V..

At the same time, it is not always possible for an employee to prove the existence of an employment relationship with an employer, relying only on materials indicating the availability of reports for the work done. Such relations, given their short duration and the performance of specific types of work at the facilities, could well be regarded by the court as the fulfillment of an order under a GPH contract. Thus, in this case, one of the decisive factors was the failure of the sole proprietor to attend the court session and the absence of any comments from him.

Significant difficulties in proving the existence of labor relations are associated with some specific categories of employers who are engaged in various religious and charitable activities, attracting resources from various sources and carrying out activities that contribute to the enrichment of the cultural and moral image of society. As a rule, there are no internal regulations in such organizations, and most of the employees are involved as volunteers, which does not allow us to draw conclusions about the existence of labor relations, and not voluntary gratuitous assistance.

Thus, B. Agapitov filed a lawsuit with the Religious Organization "Vazheozersky Spaso-Preobrazhensky Monastery of the Petrozavodsk and Karelian Diocese of the Russian Orthodox Church (Moscow Patriarchate)" to establish the fact of labor relations. According to the plaintiff, he carried out labor activities at the monastery for a long time, obeyed the labor regulations, performed the tasks assigned to he had responsibilities, for which he received a salary. However, the employer did not register the employee, did not make an entry in the work book and, accordingly, did not pay contributions to various funds ^[11].

When considering this case, the court found that as evidence of labor activity in the monastery, the plaintiff refers to grounds that do not make it possible to draw unambiguous conclusions about the existence of labor relations between Agapitov and the employer, namely: an application form for a loan, a copy of the contract of sale of a car, on which, according to the plaintiff, the needs of the monastery were serviced, etc. As a result, the satisfaction of the claims was denied in full.

At the same time, it cannot be unequivocally stated that there were no labor relations in this case. This is not possible, because with a high degree of probability, such relations had a specific shade of service peculiar to religious organizations. As a result, despite the existence of financial payments that were made from donations received by the monastery, such work is perceived as voluntary assistance from noble motives, receiving material gratitude for which is not the ultimate goal of such relations.

One of the trends of recent years is the execution of GPH contracts with the self-employed, i.e. persons who, in accordance with Federal Law No. 422-FZ of 27.11.2018 "On conducting an experiment to establish a special tax regime "Professional income tax"" ^[12] pay professional income tax using a special application installed on a smartphone. The essence of self-employment is to carry out work in the absence of an employment relationship. In general, we are talking about a kind of entrepreneurial activity, since the self-employed independently finds customers, performs agreed work, accepts payment and transfers the established tax. At the same time, self-employment, unlike individual entrepreneurship (IE), does not involve hiring employees.

Thus, a self-employed employee takes on the burden of independently providing himself with work and materials for its implementation, and also pays the established tax, which is somewhat less than the same for an individual entrepreneur. Such a load assumes an appropriate mark–up for the services of the self-employed, and also determines the specifics of the relationship: the customer - the contractor.

The Covid-2019 pandemic has made significant adjustments to the processes of implementing the financial and economic activities of most enterprises, forcing them to cut costs in all possible directions. Repeated repetition of lockdowns led to the fact that organizations began to rebuild their business in such a way that some employees could, with the introduction of restrictions, continue to work remotely, and with employees whose services were not needed at a given time, it was possible to painlessly terminate relationships.

Termination of employment relations is accompanied by a number of mandatory measures on both sides, takes some time and, as a rule, is accompanied by various types of compensation from the employer. As a result, the emergence of new entities on the services market that provide services and at the same time bear an independent tax burden, has become the reason for the emergence of such a phenomenon as the substitution of employment contracts with civil contracts with the self-employed.

In such a simple way, employers disguise labor relations, saving on taxes and having the opportunity to terminate relations with a specialist at any time without incurring any financial losses. In connection with the frequent cases of substitution of labor relations with contracts with the self-employed, the Federal Tax Service of Russia studied judicial practice and on April 15, 2022 issued Letter No. EA-4-15/4674 ^[13], in which it described in detail the signs of such an illegal scheme.

The Federal Tax Service focuses on the contract if it contains:

- a specific labor function, and not the performance of a one-time task;

- a certain amount of work;

- monthly salary amount;

- remuneration for the days actually worked;

- the need to subordinate the employee to the internal labor regulations, disciplinary responsibility for non-fulfillment of requirements;

- work on the territory of the employer using the means and tools provided by him;

- financial responsibility of the contractor ^[14].

Any of the listed signs gives the Federal Tax Service the right to start searching for evidence that the employer is trying to cover up the employment relationship with civil contracts.

Evidence of substitution can serve as:

- a issued (permanent) pass to the employer's territory, a log of arrival and departure registration and other written evidence;

- personnel documents – work schedule, vacations, business trip, financial liability agreement;

- payroll payslips, cash disbursement statements;

- invoices, invoices and other documents of the employer's economic activity, filled in and signed by the employee;

- documents signed by the employee on labor protection, power of attorney to receive inventory, representation of the employer's interests ^[15].

It should be noted that this practice took place before the introduction of the law on the self-employed. So, for almost a year and a half, the courts have been considering a case on the recognition of relations that arose on the basis of a civil contract in the period from March 22, 2018 to February 9, 2019, as labor relations, on the obligation to deduct insurance premiums to the FIU, FSS, FOMS, personal income tax and other requirements. As follows from the materials of the case ^[16], Nashilevsky I.V. (plaintiff) provided services for the preparation of numbers of LLC "Sours Group" on the basis of a civil contract. After the expiration of the contract, the plaintiff continued his activities in the organization by mutual oral agreement, i.e. the contract was actually extended indefinitely.

The plaintiff obeyed the schedule established in the organization, carried out work according to a pre-agreed schedule, was subordinate to the employees of LLC "Sours Group". However, the courts of the first, appellate and cassation instance denied the claim, referring to the fact that the relationship between the plaintiff and the defendant was of a civil nature, and the plaintiff did not express a desire to conclude an employment contract with the employer in writing. At the same time, it is the employer who initiates the emergence of labor relations, draws up all the necessary documents and further manages all work processes. In this case, the employee agrees to the conditions proposed by the employer, even if it is a very promising and in-demand employee. According to the Supreme Court of the Russian Federation, the relationship between the plaintiff and the defendant should be characterized as labor. The conclusion of civil law contracts that actually regulate labor relations between an employee and an employer is not allowed (Part 2 of Article 15 of the Labor Code of the Russian Federation). Consequently, the employer, by not initiating the conclusion of an employment relationship with an actual employee, violates the law.

In accordance with the legal position of the Constitutional Court of the Russian Federation, set out in paragraph 3 of paragraph 2.2 of the Definition of May 19, 2009 No. 597-O-O, in order to prevent abuse by employers and the facts of concluding civil law contracts, contrary to the employee's intention to conclude an employment contract, as well as to achieve compliance between the actually developing relations and their by legal registration, the federal legislator provided in Part 4 of Article 11 of the Labor Code of the Russian Federation for the possibility of recognizing in court the existence of labor relations between the parties formally bound by a civil contract, and established that the provisions of labor legislation and other acts containing labor law norms apply to such cases. As a consequence, the Judicial Board of the Supreme Court of the Russian Federation canceled the court decisions adopted in the case and sent the case for a new hearing to the court of first instance.

A similar legal position is contained in the rulings of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation dated July 12, 2021 No. 19-KGPR21-9-K5 ^[17], dated January 14, 2019 No. 5-KG18-259 ^[18], dated May 13, 2019 No. 69-KG19-4 ^[19].

Summarizing the results of the study, let's summarize:

1. Judicial practice on the protection of workers' labor rights is very extensive and diverse, but its essence basically boils down to one thing: an employer, being interested in obtaining the best labor resources, with minimal financial costs, will always strive to protect the interests of his business, regardless of the requirements of the legislator. As a result, depending on the economic situation in the country and the financial situation of a particular organization or individual entrepreneur, employers will invent new ways to achieve the goals for which the business was created. At the same time, monitoring the financial situation of the organization and the level of salaries from which deductions to various bodies occur, in terms of analyzing the relationship between them and their compliance with the situation on the labor market, can be the first step to develop a scheme to overcome the situation with unofficial wages.

2. The analysis of the materials of judicial practice carried out within the framework of the article showed that, in general, the protection of workers' labor rights provides for many options, both self-defense and protection by contacting state bodies. At the same time, the effectiveness of all these methods often largely depends on the reasonable behavior of the employee until the moment of conflict with the employer. Reasonable behavior means not only the conscientious performance of the duties assigned to a person by the employer, but also the adoption of a number of protective measures related to the control of the registration of the entire list of documents required for official employment, as well as the reflection of relevant information in them.

Shifting the burden of proof to an employee in situations such as, for example, discrimination in hiring puts an employee in a sometimes hopeless position, since it is almost impossible to collect evidence in this case. It seems reasonable to shift the obligation to prove the absence of discrimination to the employer, not only by a reasoned refusal to the employee, but also by providing evidence in court of non-compliance with the position, or the presence of an applicant superior to the applicant who applied to the court for his professional qualities and work experience. As a consequence, Article 3 of the Labor Code of the Russian Federation should be supplemented with the following provision: "The burden of proving the absence of discrimination in case of refusal to hire lies with the employer."

3. Being a more vulnerable party of labor relations, an employee, when applying to the court, claims a special attitude due to the possible lack of knowledge of all the subtleties of legislative regulation of labor relations. As a consequence, if there are contradictions in the position of an employee and an employer, the court seeks to promote the former as a priority. At the same time, such a position in no way infringes on the rights of the employer. In particular, the right to choose the most competent personnel and neglect the conclusion of an employment contract with persons who are prone to violating labor discipline and are unable to perform their duties in the best possible way. Thus, if the court, when resolving the dispute, finds that the employer refused to hire due to circumstances related to the business qualities of this employee, such a refusal is recognized as justified. As well as the dismissal of an employee who systematically violates discipline or once, but roughly. With proper documentation of all disciplinary violations by the employer, this does not cause any rejection by the judicial system.

4. One of the urgent problems of protecting the labor rights of employees in recent years is the substitution of labor relations with civil relations with the self-employed. In fact, the following happens: a self-employed specialist, cooperating with a conditional customer, observes labor discipline, performs labor functions peculiar to ordinary employees, adjusts to the needs and schedule of the employer, receiving in return payment under the contract, from which the tax on professional income will be deducted in the future. Such an employee remains without sick leave payments and for the period of vacation.

Consequently, such relations significantly violate the balance of interests of employers and employees, because, first of all, they do not take into account the economic losses of a self-employed employee. At the same time, such relationships generally have potential, because there are categories of employees for whom such relationships are generally convenient, provided that the payment for the implementation of contractual relations covers the current costs of vacation and treatment and allows you to save money for the future. The struggle with employers in the current unstable economic conditions will most likely not lead to qualitative changes in this area, but will only worsen the situation, as it happens with the reduction of the tax base (the division of wages into "white" and "gray" parts).

The solution to the problems of infringement of the interests of the self-employed is seen in the creation of economic prerequisites for achieving high earnings and the ability to save savings, including by voluntarily investing in various pension and other funds that contribute to saving resources. An important aspect is also informing citizens about the essence of the relationship that the employer-customer offers them. Having at least minimal knowledge in the field of economic fundamentals of entrepreneurship and income planning, self-employed specialists will be able to calculate their actual costs for the implementation of such orders and the benefits from their fulfillment, as well as build relationships taking into account their own priorities.

One of the effective ways may be the introduction of an obligation for the self-employed to indicate in the appendix information about GPH contracts lasting more than one month. Prolongation of such contracts should be a reason for checking the organization by tax and labor inspections. As a result, the Federal Law regulating the activities of the self-employed, the Tax Code of the Russian Federation and the Labor Code of the Russian Federation must include provisions regulating:

- the obligation of self-employed citizens to report on the conclusion of GPC contracts lasting more than one month;

- the duty of tax authorities to make inquiries about additional agreements between self-employed and legal entities or sole proprietors, as well as to send data on negative results of the audit to labor inspections;

- the duty of labor inspections to initiate an appeal to the court in the interests of the affected self-employed citizens.

Thus, the ways to protect the labor rights of employees in the Russian Federation today include a wide range of opportunities to achieve a balance of interests when communicating with an employer. At the same time, their effectiveness is largely due to the personal motives of the employer in maintaining relations with a particular employee. The most effective way to protect labor rights is judicial protection. This method allows you to minimize the influence of subjective factors and entrust the solution of legal issues to professionals in this field. At the same time, in situations where the burden of proof is placed on the employee (failed employee), his chances of proving his case are significantly reduced due to the lack of access to the evidence base.

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