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On the difference between an employment contract and a civil law contract

20.06.2018

The Supreme Court of the Russian Federation issued a resolution "On the application by courts of legislation regulating the work of employees employed by employers - individuals and employers - small business entities that are classified as microenterprises."

Much attention has been given to the issue of the distinctive features of labor relations, to which the Plenum of the Supreme Court of the Russian Federation has assigned:

• the parties reach an agreement on the personal fulfillment of the employee by a certain, pre-determined labor function in the interests, under the control and management of the employer;
• an employee’s subordination of the employer's internal work schedule;
• the provision by the  employer with working conditions; the employee performing his/her  labor function  for a salary ;
• Working in accordance with the employer's instructions;
• Integrating the employee into the organizational structure of the employer;
• recognition by the employer of employee rights such as weekly holidays  and annual leave;
• payment by the employer of expenses related to travel of an employee for the purpose of performing work; the implementation of periodic payments to the employee, who are his sole and (or) the main source of income for him;
• the provision of tools, materials and mechanisms by the employer.

It is noted that, the labor contract is different from the contract for provision of paid services by the subject of the contract, according to which the executor (employee) is not performing a specific one-time job, but certain labor functions that are part of the employee's duties, while the process of fulfilling this labor function is important.

In addition, under a  contract for the paid provision of services, the executor remains an independent economic entity, while under an employment contract the employee assumes the responsibility to perform work according to a specific  work function (specialty, qualification, position), the employee is included in the employer's personnel, and is subject to the established labor regime and works under the supervision and guidance of the employer; the executor under the contract for the  paid rendering of services works at own risk, and the person working under the labor contract does not bear the risk connected with the realization of the work.

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