WHEN A FOREIGNER WORKS UNOFFICIALLY IN UKRAINE
Updated: Jun 28, 2019
Ukrainian law provides quite workable methods for employees to protect their rights. And you might be surprised but these methods do work!
Anyone whose labor rights are violated can resort to 2 main options:
1) out of court complaints;
2) file a lawsuit.
Each method can be used separately or jointly and they are not interchangeable.
Let’s consider the following case:
Mr. John is a citizen of the US teaching English at one of private schools in Kyiv. One day he is notified that he is fired. He has not been paid for the last month and the school refuses to pay him his salary. The school’s director says Mr. John worked unofficially and so he will never prove the fact of employment and the salary debt amount.
Success of a lawsuit in this case depends on how Mr. John can prove he was employed. In most of cases people have emails and other correspondence, phone records, papers with signatures and stamps, witnesses, etc.
Usually employers do not dispute a fact that a person did visited their office and performed some tasks. But they usually claim that the plaintiff was not an employee but he/she was an intern or was under unpaid probation.
So each case is unique and should be analyzed separately. Let’s sum up pros and cons of taking action to court:
Complaint to state officials
How can authorities help Mr. John and why would they? The authorities will get involved because the situation with Mr. John encompasses a number of law violations:
violation of norms concerned employment and discharging;
violation of rules of staff records management;
violation of rules of salary payment;
violation of tax legislation;
violation of rules for employment of a foreigner.
Notifying authorities about mentioned above violations is free of charge and usually results in imposing quite serious sanctions on the employer and its officials. It will not bring Mr. John financial satisfaction though.
Now let’s consider sanctions that can be imposed on the employer:
(i) Criminal liability:
delay in salary payment more than for one month – fine of UAH 8 500 to UAH 17 000 OR correction works for up to 2 years OR imprisonment for up to 2 years together with a ban to take some positions or carry out some activity for up to 3 years (article 175 of the Criminal Code of Ukraine);
unlawful discharge – fine of UAH 34 000 to UAH 85 000 OR a ban to take some positions or carry some activity for up to 5 years OR correction works for up to 2 years OR arrest for up to 6 months (article 172 of the Criminal Code of Ukraine).
(ii) Administrative liability:
work of a foreigner without a work permit – fine of UAH 1 700 to UAH 5 100 (article 203 of the Code on Administrative Offences);
employment of a foreigner with violations of law - fine of UAH 1 700 to UAH 3 400 (article 204 of the Code on Administrative Offences);
unofficial employment – fine of UAH 8 500 to UAH UAH 34 000 (article 41 of the Code on Administrative Offences);
delay in salary payment more than for one month – fine of UAH 510 to UAH 5 100 (article 41 of the Code on Administrative Offences);
not payment of taxes out of employees’ salaries – fine of 25% out of the tax that should have been paid or 50% if the violation has been committed for the second time or 75% if the violation has been committed for the third and more times (plus all and full taxes will be collected from the employer as well);
there are also some other smaller fines to be imposed.
Possible course of action
So if you are a Mr. John then you could take the following actions:
(i) draw up a complaint and send it to the official registration address of the employer via a registered mail. I would specify in my complaint that I am giving them several days (say 3) to pay me all their debt otherwise I will sue them and notify relevant state authorities about their illegal methods of doing business.
(ii) take photos of my complaint and email them to the employer in order to not waste time and not to wait until the employer receives my complaint.
(iii) if the employer does not pay within a term specified in the complaint, then I would send complaints to the relevant authorities (the State Tax Service, the Public Prosecution Office, the Ministry of Social Policy of Ukraine) and/maybe I would file a lawsuit to court.
Contact Legal Ideas law firmto get advice on your personal case.