Employment contract errors in drafting. An example of an employment contract with errors. Violation of deadlines for drawing up an employment contract with a new employee

Everyone knows that labor relations arise on the basis of an employment contract. This is the main document regulating the relationship between employee and employer. The Labor Code defines the rules for concluding such an agreement. However, as the practice of inspections of companies by the state labor inspectorate shows, errors when drawing up an employment contract are quite common. After reading the article, you will learn about the most common mistakes made by employers and understand how to correct the shortcomings.

In accordance with Art. 56 of the Labor Code of the Russian Federation, an employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified labor function, to provide working conditions provided for by labor legislation, a collective agreement, agreements, local regulations and this agreement, in a timely manner and in full amount to pay the employee wages, and the employee undertakes to personally perform the labor function determined by this agreement in the interests, under the management and control of the employer, to comply with the internal labor regulations in force for this employer.

Mistakes made by employers when concluding a contract can be divided into two groups:

• errors in drafting the text of the employment contract;
• errors when signing it.

Let's look at them in detail.

Errors when drafting the text of the contract

An employment contract must contain certain information, as well as a number of mandatory conditions. For clarity, we present them in a table.

Information to be included in the employment contract

Mandatory terms of the contract

Additional terms of the agreement

When providing information about an employee or employer, errors are the least common. Most often, this is a lack of information about the place where the contract was concluded, a document confirming the powers of the employer’s representative authorized to conclude an employment contract, or the registration address is indicated instead of the employee’s passport data.

If employment contracts do not contain any of the required information (check them against Article 57 of the Labor Code of the Russian Federation or the first column of our table), they must be added to the text. To do this, the missing information is added to both copies of the employment contract without drawing up additional agreements. The information entered is certified by the signatures of the parties to the agreement, and the date of entry must be indicated.

There are many more errors related to mandatory conditions.

Place of work

The Labor Code does not define the concept of “place of work”; therefore, in practice, employers either do not indicate the place of work at all, or indicate it incorrectly - they specify the place of work in detail, indicating the address of the organization, or too abstractly.

We emphasize: the name of the employer must be indicated as the place of work in the employment contract. The Review of the practice of consideration by courts of cases related to the implementation of labor activities by citizens in the regions of the Far North and equivalent areas, approved by the Presidium of the Armed Forces of the Russian Federation on February 26, 2014, states that in the theory of labor law, a place of work is understood as located in a certain locality (settlement). ) a specific organization, its representative office, branch, or other separate structural unit.

If you specify the place of work too specifically, the employer risks the following: if the organization moves, the employee will refuse to move and will need to pay him compensation. Moreover, this is possible not only if you move to another area, but also simply if you change the location of your office or production. After all, the company address indicated in the employment contract is an essential condition and the employer cannot change it unilaterally. Accordingly, even if the location of the office is changed, it will be necessary to comply with the requirements of Art. 74 of the Labor Code of the Russian Federation with all the ensuing consequences.

If the place of work is vague, for example, only the name of the company is given, the employer may have problems dismissing the employee for absenteeism. In this case, the employee will say that the workplace named by the employer during the trial and the workplace at which the dismissed person was supposed to be present (and was present) are significantly different. For example, if an organization has several sites where the main economic activities are carried out (several sites where repair work is carried out, several points of distribution of goods, etc.), then the employee has a real opportunity in the event that the employer indicates his absence at one such facility, talk about your work at another.

We propose the following wording of the place of work in the employment contract, which inspectors do not find fault with.

“Place of work of the employee: Pravda LLC, Nizhny Novgorod.”

If an employee is accepted into a separate structural unit, the condition can be formulated as follows:

“Place of work of the employee: Pravda LLC, Arzamas branch, Arzamas.”

Labor function

Very often, employers indicate only the name of the position in the employment contract. But, since employers currently determine job titles independently, the same functionality may be called differently in different companies. For example, an employee with the functionality of a secretary in one organization will be called that, but in another he may be called “assistant manager” or “office manager.” Therefore, controllers increasingly began to demand at least a small specification of the labor function. This condition can be formulated as follows.

“The employee is hired as a sales manager to find and attract new clients and promote the company’s services.”

Please note that you can list job responsibilities directly in the contract or make a link to the job description, if any are approved by the company.

For your information:

If, in accordance with the Labor Code of the Russian Federation and other federal laws, the performance of work in certain positions, professions, specialties is associated with the provision of compensation and benefits or the presence of restrictions, then the names of these positions, professions or specialties and the qualification requirements for them must correspond to the names and requirements specified in qualification reference books, or provisions of professional standards;

Start date or contract term

The start date of work may differ from the date of conclusion of the contract. For example, if the parties entered into an agreement in advance, according to which the newcomer will begin work in a month or two. Or, with actual permission to perform work, the date of concluding the employment contract will be slightly later than the start date of work. If the contract does not specify the start date of work, then the employee must begin work on the next working day after the contract enters into force.

Why is the start date so important? Because if the employee does not start work on the day specified in the employment contract (if the contract does not specify the start day of work, then the employee must start work on the next working day after the contract enters into force), the employer has the right to cancel the contract (Part 4 of Art. 61 Labor Code of the Russian Federation).

However, the most common mistake when specifying this condition concerns fixed-term employment contracts. Employers indicate the duration of the contract, but are silent about the reasons for concluding this type of contract. Let us remind you that this information must be indicated in the event of establishing the term of the employment relationship. Moreover, the reasons for concluding a fixed-term contract are mentioned in Art. 59 of the Labor Code of the Russian Federation and in some federal laws.

Terms of payment

The most common mistake is the refusal to indicate a specific salary amount in the employment contract and the inclusion in it of the phrase “Payment is carried out in accordance with the staffing table.”

The monthly salary of a person who has fully worked the standard working hours during this period and fulfilled the labor standards (labor duties) cannot be lower than the minimum wage. Currently it is 7,800 rubles.

According to Art. 57 of the Labor Code of the Russian Federation, an employment contract must contain an indication of the direct amount of wages (salary) or a clear procedure for determining the employee’s salary (for example, if he is hired not on a time-based basis, but on a piece-rate basis).

As for additional payments, allowances and incentive payments, the Labor Code of the Russian Federation does not require specific amounts to be indicated in the employment contract. This means that it is possible to list in the contract the types of such additional payments, allowances and payments (if they are established) and make reference to the provisions of the collective agreement, agreement or local regulation that determine the amount and procedure for payments. In this case, the employee must be familiarized with the indicated documents.

Also the error is:

• lack of salary payment dates. This is a violation of Art. 136 Labor Code of the Russian Federation. According to this norm, payment dates are specified, among other things, in the employment contract. The Letter of Rostrud dated June 20, 2014 No. PG/6310-6-1 also states that Art. 136 of the Labor Code of the Russian Federation is imperative in nature and obliges the employer to establish days for payment of earnings both in the internal labor regulations and the collective agreement (if any), and in employment contracts;
• failure to indicate the method of payment of wages. In accordance with Art. 136 of the Labor Code of the Russian Federation, the salary is issued to the employee, as a rule, at the place where he performs the work or is transferred to the credit institution specified in the employee’s application, under the conditions determined by the collective agreement or employment contract. That is, if the organization does not have a collective agreement that specifies the method of payment of wages, then this condition must be specified in the employment contract.

Working hours and rest hours

The mistake here is to use a template employment contract, which specifies the general working hours or contains a link to internal labor regulations, for employees whose working hours differ from those generally established in the company: part-time workers, part-time workers, etc. Unfortunately, there are such contracts where part-time workers are set to work full time.

Therefore, adjust the template for employees whose working hours differ from those generally accepted in the organization.

Condition on compulsory social insurance

Employers forget to indicate this condition, mainly because they do not know how to formulate it. However, if the employment contract does not contain a clause on employee insurance, then even if the company actually transfers contributions to all necessary funds, the employer may be fined for the absence of this clause. This condition can be formulated as follows:

“The employee is subject to all types of compulsory social insurance in connection with work activities. The types and conditions of compulsory social insurance of an employee in connection with work activities are carried out by the Employer in accordance with the legislation of the Russian Federation.”

Working conditions in the workplace, guarantees and compensation for work in harmful and (or) dangerous conditions

The inclusion of these mandatory conditions in the contract directly depends on the results of the special assessment. Moreover, working conditions must be prescribed even if they are considered optimal.

For your information:

If the organization has not yet carried out a special assessment, this can be done until December 31, 2018 in stages (Part 6, Article 27 of the Federal Law of December 28, 2013 No. 426-FZ “On Special Assessment of Working Conditions”), and the working conditions can be indicated based on the certification of workers places carried out before the said law came into force.

If, based on the results of a special assessment, harmful or dangerous production factors are identified, the employee is entitled to guarantees and compensations defined by the Labor Code, which must be stated in the employment contract:

• reduced working hours;
• annual additional paid leave;
• increased wages.

Let's give an example of how this condition can be formatted.

3. WORKING CONDITIONS

3.1. Working conditions at the Employee’s workplace are harmful – class 3.3 according to the special assessment card of working conditions dated November 12, 2016 No. 12.

3.2. The employee is assigned a reduced working time - 36 hours per week with the following work schedule:

– a five-day work week with two days off – Saturday and Sunday;

– the duration of work from Monday to Thursday is 8 hours, work starts at 8.00, ends at 17.00;

– working hours on Friday are 4 hours – from 8.00 to 12.00;

– break for rest and food – 60 minutes from 12.00 to 13.00.

3.3. For work in hazardous working conditions, the Employee is entitled to an additional annual paid leave of 7 calendar days.

3.4. For working with easily washable contaminants, the Employee is given free soap or liquid hand detergents - 200 g of toilet soap or 250 ml of liquid detergent in a dispenser.

Other conditions

When applying for a part-time job, the employment contract must indicate that the job is a part-time job (Article 282 of the Labor Code of the Russian Federation). If an employee is hired for home-based, remote, seasonal work, to work on a rotational basis, or to the regions of the Far North or equivalent areas, etc., this must also be indicated in the employment contract.

If the employment contracts with your employees do not contain any of the mandatory conditions or they are specified incorrectly, then it is necessary to conclude additional agreements with the employees and make changes to the relevant clauses of the contracts.

Additional terms

In addition to the mandatory ones, additional conditions may be included in the employment contract. But, including them, it should be remembered that they should not contradict current legislation. For example, establishing a 4-month trial for an employee who, according to Art. 70 of the Labor Code of the Russian Federation can establish a test for a maximum of 3 months, contrary to the provisions of the code.

Often, employers include provisions for various fines in the contract or record a ban on part-time work. These are errors that may constitute an administrative offense, so be careful.

In any case, if an error is discovered - the absence of mandatory conditions or inaccurate wording - it is necessary to eliminate it by drawing up an additional agreement to the employment contract, which will be part of the contract.

Errors when concluding a contract

Here the range of errors is also diverse. Let's start with the form of the contract. The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the contract is given to the employee, the other is kept by the employer.

Receipt of a copy of the employment contract by the employee must be confirmed by his signature on the copy kept by the employer.

In addition to the form, you need to pay attention to the following points:

1. The age at which it is permissible to conclude an employment contract. Let us recall that according to the general rule of Art. 63 of the Labor Code of the Russian Federation, this is possible with persons who have reached the age of 16 years, with the exception of cases provided for by the Labor Code of the Russian Federation and other federal laws. Employers make two mistakes:

• they refuse to hire minors;
• unlawfully enter into an employment contract with a teenager under the age of 16.

In the latter case, employers “forget” to obtain the consent of one of the parents, and also that the children are studying. Meanwhile, teenagers under 16 can work only in their free time from school.

2. Familiarization with local regulations. Many employers enter into an agreement and only then, when it works out, introduce the employee to the instructions, regulations and other local regulations that a newcomer needs in his work. Meanwhile, this is a violation of Art. 68 Labor Code of the Russian Federation. You must review the documentation before signing the employment contract.

3. Documents for concluding an employment contract. As we know, a list of such documents is in Art. 65 Labor Code of the Russian Federation. Requesting documents not specified in this provision is a violation of the law. For example, if an employment contract is concluded with a girl, they often require a certificate of absence of pregnancy - this cannot be done.

4. Refusal to conclude an employment contract. As a general rule, unreasonable refusal to conclude an agreement is prohibited (Article 64 of the Labor Code of the Russian Federation). It would be a mistake to refuse women because they are pregnant or have children. Any restriction of rights or establishment of advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence (including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to the business qualities of employees, are not allowed, except in cases in which the right or obligation to establish such restrictions or advantages is provided for by federal laws.

Responsibility

If, after reading the article, you realized that the company most likely made mistakes when concluding employment contracts, it is necessary to correct the shortcomings. If you leave everything as it is, then the inspectors from the State Tax Inspectorate, when they come with an inspection, will definitely issue a fine:

• according to Part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation - evasion of execution or improper execution of an employment contract, for example, failure to include any mandatory conditions. This may entail the imposition of an administrative fine on officials in the amount of 10,000 to 20,000 rubles, on individual entrepreneurs - from 5,000 to 10,000 rubles, on legal entities - from 50,000 to 100,000 rubles;
• according to Part 1 of Art. 5.27 – violation of labor laws. This provision will be applied if an error is detected when concluding an agreement - refusal to conclude, failure to draw up an agreement in two copies, etc. Punishment includes a warning or the imposition of an administrative fine on officials, as well as individual entrepreneurs in the amount of 1,000 to 5 000 rub., for legal entities - from 30,000 to 50,000 rub.

If such errors are detected again, the company may be fined up to 200,000 rubles.

Summarize

It is clear that only those who do nothing make no mistakes. And even experienced specialists can make mistakes when concluding an employment contract. Many organizations have been using the same employment contract template for years, changing only the employee data. But the legislation is being updated, and the terms of the contract must comply with it.

To minimize the risk of errors, monitor changes in legislation, adjust document templates, and create a visual hint table indicating mandatory information and conditions. And don’t be lazy - read the contract before signing. If you find an error before signing, correct the text and print the correct version of the contract. If the error is discovered after the agreement has been signed and entered into force, then you can either make corrections to its text (if the information is corrected) or draw up an additional agreement (if the terms of the agreement are corrected).

An employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise established by the Labor Code of the Russian Federation and other federal laws.

The official website of Rostrud contains information about the structure of labor violations identified by state labor inspectors during inspections carried out in 2013.

Of the total number of inspections carried out, the largest number were inspections on the following issues of labor legislation:

• wages – 42.9%;
• employment contract – 30.0%$
• training and instruction of workers on labor protection - 20.2%;
• carrying out certification of workplaces according to working conditions (currently certification of workplaces has been replaced by a special assessment of working conditions) - 16.9%;
• provision of workers with personal protective equipment and collective protection – 13.5%;
• working time and rest time – 13.8%;
• conducting medical examinations of employees – 9.8%;
• guarantees and compensation – 9.6%;
• financial liability of the parties to the employment contract – 8.5%;
• labor discipline and work routine – 8.0%;
• compliance with the established procedure for investigation, registration and recording of industrial accidents – 6.0%;
• sanitary, medical and preventive services for workers – 4.7%;

• regulation of the labor of women and persons with family responsibilities – 4.0%;
• collective agreements and agreements – 4.2%;
• targeted use of funds for labor protection measures – 4.0%;
• features of labor regulation for other categories of workers – 3.3%;
• providing workers employed in harmful and (or) dangerous working conditions with therapeutic and preventive nutrition, milk or other equivalent food products – 3.0%;
• regulation of labor of workers under the age of eighteen - 2.2%.

Below we will look at the most common offenses of employers.

1) Violations in the field of labor protection

Many organizations do not pay due attention to compliance with labor protection requirements, and, as a result, a significant number of violations identified as a result of inspections are associated with violations of these very rules.

The most common violations:

• the organization does not have logs for registering labor safety instructions;
• heads of organizations do not undergo mandatory training on labor protection;
• there are no instructions on labor protection;
• no special assessment of working conditions has been carried out;
• workers are not provided with personal protective equipment.

2) There are no mandatory local regulations

Labor legislation names local acts that are mandatory for all employers. These are internal labor regulations, regulations on remuneration, etc.

However, often organizations, as well as entrepreneurs with a small number of employees, do not state such local acts, which is a violation of labor legislation.

Note!

The employer must approve the entire list of local acts even if the organization (individual entrepreneur) has only one employee (appeal ruling of the Moscow City Court dated May 6, 2014 No. 33-15735/14, Resolution of the Penza Regional Court dated March 29, 2007 No. 7.1-19).

3) Registration of an employment contract

When checking employment contracts, inspectors most often identify the following violations:

• failure to indicate the amount of wages (tariff rate) in the contract test. Let us remind you that a reference to the staffing table without a specific indication of wages is a violation of labor laws;
• absence of the employee’s signature confirming receipt of a copy of the employment contract. Such a signature must be present on a copy of the employer’s contract, or the employer must have a special journal of signatures.

It happens that employers include in the text of the employment contract types of disciplinary liability of the employee that are not provided for by the Labor Code of the Russian Federation. Most often these are fines for certain violations of labor regulations (for example, fines for smoking).

Keep in mind: such an initiative by the employer is also a violation of labor laws.

4) Payment of wages.

The main violation in this part is the employer paying wages once a month.

Note!

An employee’s statement of consent to receive wages once a month does not relieve the employer from liability (Rostrud letter No. 472-6-0 dated March 1, 2007).

Do not forget that specific days for payment of wages must be reflected in the internal labor regulations, labor and collective agreements (Part 6 of Article 136 of the Labor Code of the Russian Federation).

A frequent violation is also the late payment of wages and final payment upon dismissal of an employee.

Another violation is the absence of pay slips.

In accordance with Art. 136 of the Labor Code of the Russian Federation, when paying wages, the employer is obliged to notify each employee in writing about the components of the wages due to him for the corresponding period, the amount and grounds for deductions made, as well as the total amount of money to be paid.

Thus, payslips must be issued with each payment of wages (letter of Rostrud dated March 18, 2010 No. 739-6-1).

5) Rules for filling out work books, availability of journals for recording the movement of work books

The procedure for maintaining work books is regulated in detail by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”.

However, errors in filling out work books are quite common.

However, much more often, labor inspectors reveal that employers do not have income and expense books for recording work book forms (inserts in it) and books for recording the movement of work books.

6) Time tracking

Labor legislation obliges employers to record working hours, i.e. time actually worked by each employee (Article 91 of the Labor Code of the Russian Federation).

Information about the use of working time is reflected in the work time use sheet in Form No. T-12 or in a form independently developed and approved by the employer.

Quite often, organizations with a small number of employees ignore this legal requirement and, as a result, are brought to administrative liability.

7) Registration and payment of vacations

One of the common violations is the absence of a vacation schedule in the organization, which is mandatory for both the employer and the employee.

The employee must be notified by signature of the start time of the vacation no later than two weeks before its start. The employer often does not have confirmation of such notice.

Often employers violate payment deadlines for upcoming vacations. Let us recall that Article 136 of the Labor Code of the Russian Federation stipulates that payment for vacation is made no later than three days before its start.

Let us note that labor legislation does not establish in which days this period is calculated: calendar days or working days. According to Rostrud, we are talking about calendar days (letters from Rostrud dated July 30, 2014 No. 1693-6-1, dated March 22, 2012 No. 428-6-1).

To assess the “readiness” of the organization for a possible inspection by the labor inspectorate, even before the arrival of the labor inspector, you can conduct an audit of personnel documentation ().

Other materials

Yaroslav Zaruev,
professional consultant in the field of personnel management, labor relations and labor law, organizational development.
Creator of the online course “Effective HR”.
Leader of a professional group "HR Guardian"
Website: www.zarueva.ru

From the article you will learn about the most common mistakes and misconceptions in matters of formalizing labor relations, the employer’s responsibilities in accordance with the law regarding the formalization of labor relations and the procedure for their implementation.

Practice shows that the majority of employers make mistakes when formalizing labor relations with hired employees. They are allowed both because of low literacy in the field of labor law by company managers and executors of these procedures, and because of the free interpretation of labor law norms by the employer himself - the first person of the company.

Issuance of an employment contract to the employee.

In accordance with labor legislation one copy of the employment contract is given to the employee, the second is kept by the employer. In most cases, administrative penalties are imposed on the employer by regulatory authorities due to the failure to provide employees with a second copy of the employment contract.

The reasons for this violation are various, for example, the employer’s deliberate concealment of the written terms of the labor relations of the parties to the contract, or simply poorly established processes in the company and the “forgetfulness” of employees responsible for personnel administration in the company.

The employer's misconception is that there is no employment contract (written), no labor relations.

A common misconception among employers is that there is no employment contract (written), no labor relations.
In accordance with the norm of Article 67 of the Labor Code of the Russian Federation, an employment contract must be concluded in writing, drawn up and signed in two copies for each of the parties to the agreement. An employment contract that is not formalized in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative.

Mandatory execution of an employment contract in writing was established in 1992. According to the requirements of the previously existing Labor Code in its original version, it was possible to conclude an employment contract both in written and oral form. The Labor Code clearly establishes the requirement - only a written form of the employment contract is provided.

The courts side with the employee if, in the presence of indirect or direct evidence, the fact of an existing employment relationship is confirmed. Issued passes to the employer’s territory, the employee’s work correspondence from the official email account created for him, and minutes of meetings in which the employee participated are accepted as evidence. Among other things, the testimony of the company’s employees and contractors is accepted that official interactions were carried out with this employee within the framework of his job functions.

Violation of deadlines for drawing up an employment contract with a new employee.

Labor legislation establishes clear deadlines for drawing up an employment contract.

When an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than 3 (three) working days from the date the employee is actually admitted to perform his job function. Those. , accordingly, the date of the employee’s signature on the employment contract cannot be later than the start date of this employment contract, this is a minimum.

Also, in accordance with Article 68 of the Labor Code of the Russian Federation, the employer’s order (instruction) on hiring is announced to the employee against signature within 3 (three) days from the date of actual start of work.

Test period for hiring.

This condition must be indicated in the employment contract when it is drawn up. When concluding an employment contract, by agreement of the parties, it may include a provision for testing the employee in order to verify his compliance with the assigned work.

Also, the probationary period cannot be set by the employer unilaterally; this is the subject of agreement between both parties to the employment contract.

The absence of a provision in the employment contract regarding the established probationary period means that the employee was hired without a trial.

In the event that an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), the probationary condition can be included in the employment contract only if the parties formalized it in the form of a separate agreement before the start of work.

Changing the duration of the test period is not allowed. Many employers, calling this a “second chance,” having set a probationary period for the employee upon hiring and if the newcomer is not completely satisfied with the job in the company, extend the duration of the probationary period with their personal will. And they even prescribe this “extension” in additional agreements to the concluded employment contract and orders of the employer. This is strictly prohibited by current legislation.

The duration of the test period can only change within the framework of clause 6 of Article 70 of the Labor Code of the Russian Federation. Those. the duration of the probationary period will be the period established by the employment contract, taking into account the actual performance of the labor function (the probationary period does not include the period of temporary disability of the employee and other periods when he was actually absent from work).

Those. For any absence from work, both for a valid and unexcused reason, including when an employee is absent for many days, the probationary period is automatically extended by the number of days of absence from work.

When establishing a probationary period, it is necessary to take into account all the restrictions established by this article for categories of workers for whom a probationary period cannot be established (clause 3 of Article 70 of the Labor Code of the Russian Federation), as well as the duration of the established probationary period for these categories of workers (clause 4, 5 Article 70 of the Labor Code of the Russian Federation).

Compliance of conditions in local regulations and in the employment contract.

We never forget that the primary document in labor relations is the employment contract. The staffing table, if the employer has one, is secondary to the employment contract concluded with the employee. This also applies to other local regulations of the employer. Those. if in the employment contract the conditions under which the employee will fulfill his employment relationship do not coincide with any conditions in the employer’s local regulations, when considering a labor dispute between the employee and the employer, the conditions stipulated in the employment contract will be considered in priority.

Therefore, when making changes to local acts, the employer always needs to monitor what conditions are reflected in the employment contract, whether there is a need to make changes to the employment contract in connection with the changes being made, whether additional agreements have been signed by both parties to the employment contract that fixed these changes .

What is the employer’s responsibility for violating labor laws when registering labor relations?

The degree of liability for violation of labor legislation and other regulatory legal acts containing labor law norms is established by Article 5.27. Code of Administrative Offenses of the Russian Federation.
For violation of the requirements of labor legislation, the Code of Administrative Offenses of the Russian Federation separately identifies in paragraph 4 of Art. 5.27 violations related to the lack of an employment contract with the employee:
- evasion of registration;
— improper execution of an employment contract;
— conclusion of a civil contract that actually regulates labor relations between the employee and the employer.

For these violations when drawing up an employment contract with an employee, the employer who committed this offense for the first time is subject to an administrative fine, the amount of which varies depending on the violation committed.

If the violation is committed repeatedly, then the punishment is more severe - up to the disqualification of the head of the organization (Clause 5, Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

In order to avoid financial losses as a result of administrative violations imposed on the employer and increasing the risks of losing a labor dispute in court proceedings, I recommend complying with the legal requirements for formalizing labor relations and established procedures in administering labor relations and maintaining the company’s document flow.

This does not require much effort, but saves significant financial resources of the company in the event of violations being discovered by regulatory authorities during inspections and court hearings on labor disputes.

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Just as a theater begins with a coat rack, so any company begins with the conclusion of employment contracts with employees. It would seem that everyone knows what an employment contract should be, and no problems should arise during its preparation and conclusion. But in reality everything is much more complicated.

As part of our practice, we work with various companies. We conduct personnel audits in both small organizations (up to 6 employees) and large companies (up to 930 employees). In accordance with the specifics of the companies' activities, their personnel composition is also diverse: office employees, remote workers, shift workers, etc. As part of a personnel audit, we check the content of employment agreements with employees and find errors in them in each company. Moreover, there are often organizations in which employment contracts with employees are not concluded at all. Meanwhile, in accordance with Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, an organization may be held liable for the absence of an employment contract concluded with an employee or for improper execution of it in the form of a fine of up to 100,000 rubles.

In this article we will look at the mandatory details of an employment contract, as well as the most common mistakes of employers that are identified during a personnel audit, and methods for correcting them.

In accordance with Art. 57 of the Labor Code of the Russian Federation, an employment contract must contain certain information, as well as a number of mandatory conditions. It may also contain additional terms and conditions. Details of the employment contract are given in Table 1.

Table 1. Details of the employment contract

Despite the fact that all the details of an employment contract are listed in the Labor Code of the Russian Federation, employers make many mistakes when drawing it up. Let's take a closer look at exactly what errors we identified among our clients for each of the details.

Typically, employers do not have problems with this part of the employment contract, but you can still find agreements that do not indicate the place where they were concluded, where the employee’s registration address is indicated instead of the employee’s passport information, the organization’s tax identification number is missing, or it is not stated on the basis of which document the employer’s representative has the right to conclude an employment contract with an employee.

If the employment contracts with your employees do not contain any of the required information, then they must be included in the agreement. To do this, the missing information is entered into both copies of the employment contract (belonging to the employee and the employer), this entry is certified by the signatures of the parties to the employment contract and the date of making the corresponding correction is indicated.

Please also note that the employment contract must contain a note indicating that the employee received his copy (Article 67 of the Labor Code of the Russian Federation), this also applies to all additional agreements concluded with the employee. The absence of an employee’s signature confirming receipt of their copy is one of the most common mistakes. If the employment contracts and additional agreements with your employees do not contain notes indicating that the employee received their copies, then ask him to write a phrase about receipt of the copy and sign or sign in the appropriate column, if such a column is provided for in the form of the employment contract and additional agreement.

Most mistakes are made by employers in this part of the employment contract, so we will consider in detail how to correctly indicate each of the mandatory conditions in the employment contract.

1. Place of work.

Since the Labor Code of the Russian Federation does not disclose the content of the concept of “place of work” and does not indicate how to correctly spell out this condition in an employment contract, in practice organizations either do not indicate the place of work at all or indicate it incorrectly.

Recommendations on how to indicate the place of work in an employment contract can be found in the Review of the practice of courts considering cases related to citizens’ work activities in the Far North and equivalent areas, approved by the Presidium of the Supreme Court of the Russian Federation on February 26, 2014. In the review It is stated that in the theory of labor law, a place of work is understood as a specific organization, its representative office, branch, or other separate structural unit located in a certain area (settlement).

From this definition we can conclude that the name of the employer and its location (name of the locality) in all cases is a mandatory characteristic of the place of work.

You can specify your place of work in two ways:

• the name of the employing organization and the locality in which the company is located. For example, “Place of work of the employee: LLC “Stroy Group”, Moscow”, and if the employee is accepted into a separate structural unit: “Place of work of the employee: LLC “Stroy Group”, Saratov branch, Saratov”;
• name of the employing organization and exact address of the place of work. For example, “Place of work of the employee: Stroy Group LLC, Moscow, st. Lenina, 55, office 15”, and if the employee is accepted into a separate structural unit: “Place of work of the employee: Stroy Group LLC, Saratov branch, located at the address: Saratov, st. Novaya, no. 55.”

The second option is inconvenient because if the address of the location within one locality changes, it is necessary to conclude additional agreements with all employees to employment contracts.

2. Labor function of the employee.

Very often, employers indicate only the name of the position in the employment contract. In accordance with Part 2 of Art. 57 of the Labor Code of the Russian Federation, when specifying a labor function, it is necessary to specify, among other things, the specific type of work assigned to the employee. Thus, indicating only the job title is not enough.

An employee’s job function can be specified in three ways:

– indicate in the employment contract only the type of work assigned. For example, an employee is hired as a sales manager to search for and attract new clients and promote the company’s services;

– list the employee’s job responsibilities in the employment contract;

– make a link to the job description. If the organization has approved job descriptions, then the job function may not be specified in the employment contract, but it is necessary to make a reference to this instruction, indicating that the employee’s job responsibilities are determined by the job description.

3. The start date of work, and in the case where a fixed-term employment contract is concluded, also its validity period and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract.

In accordance with Art. 57 of the Labor Code of the Russian Federation, a fixed-term employment contract must indicate two conditions: 1) the circumstances (reasons) that served as the basis for concluding such an agreement in accordance with the Labor Code of the Russian Federation or other federal law, and 2) the period of its validity.

A common mistake is the absence of reasons for concluding such an agreement in a fixed-term employment contract. The reasons for concluding a fixed-term employment contract must be indicated in accordance with Art. 59 of the Labor Code of the Russian Federation or other federal law.

For example, when concluding a fixed-term employment contract with the general director, the basis for setting the term will be the following: “The employment contract is concluded for a certain period by agreement of the parties in accordance with the Charter of the Company on the basis of Part 2 of Article 59 of the Labor Code of the Russian Federation as with the head of the organization.”

4. Terms of remuneration.

When specifying this condition in an employment contract, employers make the following mistakes:

– there is no official salary and reference is made to the staffing table. This is a violation, since in accordance with Part 2 of Art. 57 of the Labor Code of the Russian Federation, the salary amount is a mandatory condition of the employment contract, therefore it is necessary to indicate the salary amount in the employment contract itself, and not make reference to the staffing table;

– the dates of payment of wages are not indicated, which is a violation of Art. 136 of the Labor Code of the Russian Federation, which states that the dates of payment of wages are prescribed, among other things, in the employment contract. The letter of Rostrud dated June 20, 2014 No. PG/6310-6-1 also states that Art. 136 of the Labor Code of the Russian Federation is imperative in nature and obliges to establish the days for payment of wages in the internal labor regulations, collective agreement and employment contract - that is, in all these documents;

– the procedure for paying wages is not prescribed, namely, the specific amounts of payments that the employee will receive with each payment of wages. This condition may not be specified in the employment contract if it is contained in local regulations, for example, in internal labor regulations or regulations on remuneration;

– the method of payment of wages is not specified. In accordance with Art. 136 of the Labor Code of the Russian Federation, wages are paid to the employee, as a rule, at the place where he performs the work or is transferred to the credit institution specified in the employee’s application, under the conditions determined by the collective agreement or employment contract. That is, if the organization does not have a collective agreement that specifies the method of payment of wages, then this condition must be specified in the employment contract.

Figure 1 shows a fragment of the section of the employment contract regulating wages.

Figure 1. Fragment of the “Payment” section of the employment contract

5. Working hours and rest hours

If in an organization the working hours are the same for all employees, then in the employment contract you can not specify working hours and rest periods, but make a reference to a local act - internal labor regulations.

It is necessary to pay attention to this condition in contracts with employees for whom an individual work schedule has been established. For example, in practice there are employment contracts with part-time workers for whom full-time work is established. This is due to the fact that companies use the same employment contract template for all employees and forget to make corrections to the required clause when concluding an agreement with a part-time employee. Meanwhile, such “forgetfulness” is a violation of Art. 284 of the Labor Code of the Russian Federation and may lead to claims from inspection authorities.

6. Conditions determining, if necessary, the nature of the work

Very often, employers do not indicate this condition in the employment contract, although most companies have drivers or couriers on their staff. For employees whose work involves constant travel, the employment contract must indicate the traveling nature of the work.

7. Conditions on compulsory social insurance of the employee.

To avoid claims from inspection authorities, it is necessary to check whether this condition is specified in the employment contract. If the employment contract does not contain a clause on employee insurance, then even though the company actually makes contributions to all necessary funds, the employer may be fined for the absence of this clause in the agreement.

This condition can be specified in the employment contract as follows: “The employee is subject to all types of compulsory social insurance in connection with work activities. The types and conditions of compulsory social insurance of an employee in connection with work activities are carried out by the Employer in accordance with the legislation of the Russian Federation.”

8. Working conditions in the workplace and guarantees and compensation for work under harmful and (or) dangerous working conditions

Both of these conditions are related to each other, and the second condition follows from the first. It is rare to find an employment contract in which these points are correctly spelled out. This is due to the fact that they are indicated in the employment contract based on the results of a special assessment of jobs. If the organization has not carried out a special assessment, the employer cannot know the real working conditions and, as a result, cannot stipulate working conditions, guarantees, and compensation in the employment contract.

Thus, it is first necessary to conduct a special assessment of workplaces, then the results of the special assessment must be included in the employment contract, indicating the working conditions at the workplace and, if the employee is exposed to harmful and (or) dangerous working conditions, guarantees and compensation must be written into the contract.

The guarantees and compensations that an employee is entitled to for working in harmful and (or) dangerous working conditions depend on the class and subclass of harmfulness, namely:

• when class 3.1 is established, the employee is provided with an increase to the official salary of at least 4%;
• when class 3.2 is established, the employee is provided with the specified bonus plus additional leave of at least 7 calendar days;
• when class 3.3, 3.4 or 4 is established, the employee is provided with a bonus, additional leave, and also a reduced working time (no more than 36 hours per week) without a reduction in wages.

We also draw your attention to the fact that employees who, based on the results of a special assessment of working conditions, are identified as having harmful working conditions, are provided with free flushing and (or) neutralizing agents by their employer (Article 212 and Article 221 of the Labor Code of the Russian Federation). In accordance with clause 9 of Appendix No. 2 to Order No. 1122n of the Ministry of Health and Social Development of Russia dated December 17, 2010, the standards for issuing flushing agents must be established in the employment contract.

Figure 2 shows a fragment of the sections of the employment contract establishing working conditions, guarantees, and compensation.

Figure 2. Fragment of sections of the employment contract establishing working conditions and guarantees, compensation

9. Other conditions in cases provided for by labor legislation and other regulatory legal acts

The above list of mandatory conditions is not exhaustive. Thus, when applying for a part-time job, the employment contract must indicate that the job is a part-time job (Article 282 of the Labor Code of the Russian Federation). The establishment of an irregular working day for an employee must also be reflected in the employment contract (Part 2 of Article 57 of the Labor Code of the Russian Federation, Article 100, Article 101 of the Labor Code of the Russian Federation). If an employee is hired for home-based, remote, seasonal work, to work on a rotational basis, or to the regions of the Far North or equivalent areas, etc., then this must also be indicated in the employment contract. If necessary, other conditions are specified in the employment contract.

If the employment contracts with your employees do not contain any of the mandatory conditions or they are specified inappropriately, then it is necessary to conclude additional agreements with the employees and make changes to the relevant clauses of the employment contracts.

Additional terms of the employment contract

When specifying additional conditions in an employment contract, it is necessary to remember that they must comply with the law.

Here are some examples of additional terms of an employment contract from our practice that contradict current labor legislation:

– establishing a probationary period for the employee of more than three months, in the case where the employee does not belong to the category of employees who, in accordance with Art. 70 of the Labor Code of the Russian Federation, a probationary period of longer duration can be established;

– imposing on the employee the obligation to compensate for damages in the amount of the cost of uncompleted work, costs associated with the organization of these works, as well as penalties to third parties. In accordance with Art. 238 of the Labor Code of the Russian Federation, the employer cannot recover from the employee lost income (lost profits), that is, the employer cannot demand compensation for material damage if he suffered losses or lost profit due to the employee’s failure to perform or improper performance of his job duties;

– imposing fines on the employee. The list of disciplinary sanctions is established by Art. 192 of the Labor Code and is exhaustive, fines are not specified in this article, therefore the establishment of any type of fine in an employment contract is unlawful and may result in a fine for the employer itself from the inspection authorities;

– establishing a ban on part-time work. In accordance with Art. 60.1 of the Labor Code of the Russian Federation, an employee has the right to enter into employment contracts to perform other regular paid work for another employer in his free time from his main job, and the company does not have the right to prohibit employees from concluding part-time employment contracts.

If the employment contracts with your employees contain additional conditions that contradict the law, then it is necessary to exclude them from the employment contract by concluding an additional agreement.

In this article, we examined the mandatory and additional details of an employment contract and gave examples from our practice. To summarize, I would like to note that, of course, many errors in employment contracts arise due to the complexity of interpretation and application of labor legislation, but there are also many errors that are made by employers due to inattention. It is also necessary to take into account that if you establish additional guarantees for an employee in an employment contract, then they must actually be provided to the employee. For example, if the employment contract states that the employer issues a voluntary health insurance policy to the employee or pays a monthly premium in a certain amount, then the employer must comply with such terms of the contract, since they are fixed in the contract and, therefore, are the obligation of the employer. Any employment contract template that you use must be checked by you for compliance with the requirements of labor legislation, the specifics of your company’s activities and the position for which the employee is hired. Only this approach will allow you to avoid unnecessary errors in personnel records.

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Reducing the number of employees is one of the effective ways to reduce costs or slow down the pace of production activity if the organization's product has ceased to generate sufficient profit. In this article we will tell you how to avoid mistakes when reducing staff.

If an employer decides to reduce the number of employees, he needs to take into account all the nuances of this complex process. Mistakes made do not reduce, but, on the contrary, significantly increase personnel costs.

For example, a court may reinstate an employee at work and oblige the employer to pay him the average salary for the entire period of forced absence (Article 394 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation), as well as to compensate for moral damages (Article 237 of the Labor Code of the Russian Federation). In this case, the employer is obliged to pay all legal costs (Article 88 of the Civil Procedure Code of the Russian Federation).

In addition, if an employee applies for protection of his rights to the labor inspectorate, if the reduction is incorrectly executed, the employer faces administrative liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Let's look at the typical mistakes that employers make when filing staff reductions.

1. NOTICE OF REDUCTION IS INCORRECTLY COMPLETED

When warning employees about layoffs, it is necessary to take into account all legal requirements, as well as established practice, in order to reduce the risk of disputes in the future. We recommend issuing a notice of reduction in the number of employees. The more detailed the document is, the fewer questions, misunderstandings and irritation it will cause among employees (Example 1).

2. WORKERS ARE NOT NOTIFIED ABOUT THE REDUCTION OR THEY ARE NOTIFIED WITH VIOLATIONS

An important nuance is that absolutely all laid-off employees must be notified of the layoff and on time.

According to part two of Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to warn employees in writing, against signature, about their layoff at least two months before dismissal.

If the employee refuses to read the notice or sign for familiarization with it, then the employer will have to read the notice to the employee out loud and draw up a report in which two or three employees who were present during the familiarization must sign (Example 2).

However, there are exceptions to the employee notice period.

Several days' notice. For example, if an employee has a fixed-term employment contract for a period of up to two months, then he must be notified in writing of the layoff at least three calendar days in advance (part two of Article 292 of the Labor Code of the Russian Federation). An employee who is employed in seasonal work should be notified in writing of the layoff at least seven calendar days in advance (part two of Article 296 of the Labor Code of the Russian Federation).

Notification in case of illness and vacation. If an employee needs to be notified of a layoff and he is on vacation or sick leave, it is better to wait until he returns to work and hand in the notification in person. But what if this is a remote worker or management demands that the employee be notified despite being on vacation?

In this case, you need to send a notice of layoff to all known addresses of the employee in a valuable letter with a list of attachments and a receipt receipt (Example 3). The date of notification is the date the employee receives the valuable letter.

If the employee is available by phone, it is worth calling him and telling him about the need to receive a notification. Moreover, this must be done over a loudspeaker and in front of witnesses. The conversation must be recorded in an act (Example 4). Such an act speaks of the employer’s good faith and confirms that he did everything possible to notify the employee of the layoff.

3. DO NOT OFFER ALL SUITABLE VACANCIES

If there are vacancies in the organization, they should be offered to the laid-off employee (if they suit him in terms of qualifications and health) as they appear within two months, while the notice period for dismissal due to layoff is valid (part three of Article 81 of the Labor Code of the Russian Federation) .

Often, courts reinstate employees precisely because they were not offered all the vacancies. The courts carefully check whether the positions in the staffing table and in job offers coincide (see, for example, the Appeal ruling of the Krasnoyarsk Regional Court dated 02.02.2015 in case No. 33-949/2015, A-9).

It is necessary to offer not only positions that correspond to the employee’s qualifications, but also lower ones.

QUESTION ON THE TOPIC

Do I need to offer a vacant senior position?

If you know for sure that your qualifications are insufficient, you do not need to offer this vacancy (see the Appeal ruling of the Moscow City Court dated March 30, 2015 in case No. 33-10408/2015).

But if it is not known for sure whether the employee can hold a higher position (perhaps he has undergone additional training or has experience that is not reflected in the work book), the risk of disputes increases. For this purpose, we propose to inform the employer about qualification documents unknown to the employer in the layoff notice (see Example 1).

Thus, you need to ensure that there are no extra vacancies left in the staffing table (just in case). All vacancies that are not currently being searched should be excluded.

The employer is obliged to offer vacancies only in a given area, unless otherwise provided by the labor or collective agreement (see the Appeal ruling of the Moscow City Court dated December 24, 2012 in case No. 11-25754).

Let us note that the position in which a woman on maternity leave worked, in the opinion of most courts, is not considered vacant (see, for example, Determination of the Moscow City Court dated May 29, 2014 No. 4g/8-3516). This position is temporarily vacant - because the woman can return, and we don’t know when - in three months or three years.

4. REDUCING “PROTECTED” WORKERS

Despite the fact that it is the employer’s right to determine the organizational structure and staffing, the law protects certain categories of employees who need state support. “Protected” workers include:

Pregnant woman (part one of Article 261 of the Labor Code of the Russian Federation);

A woman who has a child under three years of age (part four of Article 261 of the Labor Code of the Russian Federation);

A single mother raising a child under 14 years of age or a disabled child under 18 years of age (or a person raising such a child without a mother) (part four of Article 261 of the Labor Code of the Russian Federation). According to paragraph 28 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1, a single mother is considered a woman who raises her children (natural or adopted) and is engaged in their development independently, without a father. In particular, if the father:

Died, declared missing (you need to ask the employee for a death certificate and a corresponding court decision);

Deprived of parental rights, limited in parental rights (corresponding court decision);

Recognized as incompetent (limitedly capable) or due to health reasons cannot personally raise and support a child (court decision or certificate, for example, about disability);

Serving a sentence in institutions executing a sentence of imprisonment (relevant certificate);

Avoids raising children or protecting their rights and interests. We are talking about divorced women who applied for the collection of alimony to the court and the bailiff service, but despite this, it was not possible to collect alimony (a certificate from the bailiff service that it was not possible to collect alimony);

Other situations (for example, when the paternity of the child has not been established and there is a dash on the birth certificate);

A parent, if he is the sole breadwinner of a child under three years of age or a disabled child under 18 years of age in a family of three or more children under 14 years of age and the other parent (child’s representative) is not in an employment relationship (part four of Article 261 of the Labor Code of the Russian Federation) .

To reduce the risk of litigation, it is better not to lay off such employees.

Also note that workers under the age of 18 can be fired due to layoffs only with the consent of the labor inspectorate and the commission for minors (Article 269 of the Labor Code of the Russian Federation).

In addition, if an employee is a member of a trade union, he can be fired only with the consent of the primary trade union organization (part two of Article 82, 373 of the Labor Code of the Russian Federation).

And finally, do not dismiss an employee during the period of his temporary disability and while on vacation (part six of Article 81 of the Labor Code of the Russian Federation, subparagraph “a”, paragraph 23 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

5. THE PREFERENCE RIGHT TO STAY AT WORK IS NOT CONSIDERED

You may encounter such a problem during downsizing if there are several positions of the same name in the staffing table. For example, a department has three sales managers, but only one needs to be laid off. In this case, part one of Art. 179 of the Labor Code of the Russian Federation requires that the employer, when laying off workers, retains workers with higher labor productivity and qualifications.

Qualifications can be verified using an education document and work record, but assessing labor productivity will require some effort from the employer.

• How to evaluate labor productivity? It is not difficult to assess the productivity of working personnel - it is enough to find out whether employees comply with labor standards (time and output). The situation with assessing the productivity of knowledge workers is much more complicated. Here are some tips:

1. If the organization conducts an annual personnel assessment, we recommend attaching its results. The results of the certification, if any, will also be useful.

2. If the organization has established bonus indicators, the productivity of employees can be assessed by the size and frequency of bonuses awarded to them. You can also take into account the regular performance of additional work (for example, part-time or by special order). We recommend assessing the employee’s work discipline. If discipline is low or there are comments or reprimands, then such an employee does not have a preemptive right.

• How to Document Performance Evaluations. The first step is to issue an order to create a commission to determine the preferential right to remain at work. The order must contain the following provisions:

The results of the assessment must be indicated in the minutes of the meeting of the special commission. In court, the protocol is evidence that the employer took into account the preferential rights of employees. The protocol should be accompanied by tables assessing the employees’ compliance with production or service standards, plans, instructions, etc. (see table).

If labor productivity and qualifications of workers in identical positions are approximately equal, you should go further and give preferential rights to the following categories (part two of Article 179 of the Labor Code of the Russian Federation):

Family with two or more dependents;

Persons whose family does not have working family members;

Employees who, while working in the organization, received a work injury or occupational disease;

Disabled people of WWII and combat;

Employees who improve their skills without interruption from work in the direction of the employer;

Supporting documents should be requested from such employees. For example, an employee with two or more children must provide birth certificates, as well as a passport with registration confirming residence with children; Disabled combat veteran - certificate.

6. DO NOT NOTIFY THE EMPLOYMENT SERVICE AND THE TRADE UNION

In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032 - 1 “On employment of the population in the Russian Federation” (as amended on July 29, 2017, hereinafter referred to as Law No. 1032-1) on reducing the number or staff, even if only one position or one employee, you must notify the employment service no later than two months in advance. If the reduction is massive - three months before the start of the reduction. Each region has its own notification form. It should be clarified on the websites of regional employment services. Let's give an example of a notification in Moscow (Example 5).

The mass scale criterion is determined by sectoral, territorial or regional agreements between trade unions and employers (part one of Article 82 of the Labor Code of the Russian Federation).

If these agreements are not applicable to a specific employer, you must be guided by clause 1 of the Regulations on the organization of work to promote employment in conditions of mass layoffs (approved by Government Decree No. 99 dated 02/05/1993).

According to part one of Art. 82 of the Labor Code of the Russian Federation, if the organization has a trade union, it must be notified within the same time frame (Example 6).

7. PERSONNEL DOCUMENTS ARE COMPLETED WITH ERRORS

Errors in the preparation of personnel documents can lead to fines and even reinstatement of the employee. To avoid them, you need to carefully formalize his dismissal on the last day of work (paragraph two of the first part of Article 84.1 of the Labor Code of the Russian Federation, clause 35 of the Decree of the Government of the Russian Federation of April 16, 2003 No. 225).

Below we list the actions of the employer on the last working day of the dismissed employee.

The employee must be familiarized with the order against signature. If you refuse to familiarize yourself, you must draw up a corresponding act, which must be signed by two or three employees (Example 8).

• We draw up a note-calculation. The calculation note is a mandatory document for publication and is sent to the accounting department on the day the employee is dismissed. It is drawn up either according to the unified form No. T-61 or according to the form approved by the organization. In it, the personnel officer reflects the number of days of unused or advance-used vacation (Example 9).
• We make an entry in our personal card. An entry about the dismissal of an employee must be made in section XI of the personal card of Form No. T-2, which the employee must be familiarized with against signature (Example 10).

• We issue a work book. On the day of dismissal, the employee must be given a work book with a record of dismissal (Article 84.1 of the Labor Code of the Russian Federation) against signature in the work record book (Example 11).

If an employee refuses to receive a work book, a statement about this must be drawn up signed by two or three employees (Example 12).

If the employee does not show up to pick up the work book, you must send him a notice before the end of the working day about the need to pick up the work book (Example 13) or give written consent in any form to send it by mail (part six of Article 84.1 of the Labor Code of the Russian Federation). It is better to send the notice to all known addresses of the employee to increase the likelihood of receiving it.

• We issue certificates. Upon dismissal, the employer is also obliged to provide the employee with:

A certificate of the amount of his earnings, on which insurance contributions to the Social Insurance Fund were calculated (Part 2, Article 4.1 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”);

A certificate with information on accrued and paid insurance contributions to the Pension Fund of the Russian Federation (Article 11 of the Federal Law of April 1, 1996 No. 27-FZ “On individual (personalized) accounting in the compulsory pension insurance system”).

8. LEAVE THE POSITION AS STAFF SCHEDULE

The position of the dismissed employee must be excluded from the staffing table the next day after his dismissal. If an employee was fired on September 30, then from October 1 this position should not be on the staff list.

In this case, it is necessary to refrain from introducing the same or similar position for several months (see the Appeal ruling of the Novosibirsk Regional Court dated 05.05.2015 in case No. 33-3752/2015).

9. THE EMPLOYEE IS ACCURATELY CALCULATED

On the day of dismissal, the employer must pay employees severance pay in the amount of average monthly earnings, wages and compensation for unused vacation.

The amount of wages is determined in the amount that is due to the employee for the time actually worked in a given month. Compensation for unused vacation must be calculated in accordance with Art. 121 Labor Code of the Russian Federation.

If the employee has not been paid on the last day of work, the employer must pay the employee interest under Art. 236 of the Labor Code of the Russian Federation in an amount not less than 1/150 of the key rate of the Central Bank of the Russian Federation in effect at that time for each day of delay, regardless of the employer’s fault. The employer is obliged to pay the average salary for the second and third months if the employee has not found a job.

To receive benefits for the second month, the employee will need to provide the employer with an identity card, an original work book without records of work after the date of layoff.

If an employee does not get a job and wants to receive severance pay for the third month, he must meet the following conditions:

Within two weeks after dismissal, register with the employment agency as unemployed;

Be unemployed by this employment agency within the third month after dismissal;

Provide the employer with the decision of the employment authority to pay the employee the average monthly salary for the third month.

If the employment service makes such a decision, benefits will have to be paid for the third month.

Note: if the organization or its branches are located in the regions of the Far North or equivalent areas, then according to Art. 318 of the Labor Code of the Russian Federation, the average earnings of laid-off workers are maintained for up to three months. In exceptional cases - up to six months (by decision of the employment service).

In conclusion, we present a step-by-step algorithm for reducing the number of employees (flow diagram).