The questions were answered by E.Yu. Zabramnaya, lawyer, Ph.D. n.,
A.K. Kovyazin, lawyer

New Worker: Hiring Difficulties

We have accumulated a lot of questions from readers about how to apply for a job.

Hiring - what to apply

V.D. Permyak, Podolsk

What documents are issued when a person is hired?

: You need:

Before signing the employment contract, do not forget to familiarize the employee against signature with all local regulations relating to his work activity (internal labor regulations, regulations on wages, etc.). )Art. 68 Labor Code of the Russian Federation.

Those who do not have a certificate of compulsory pension insurance must apply for it

E.V. Ushakova, Korolyov

We have a new employee. We need to issue him a certificate of compulsory pension insurance. How to do it?

: Indeed, when concluding an employment contract for the first time, an insurance certificate is issued to an employee by an employer b Art. 65 of the Labor Code of the Russian Federation; paragraph 2 of Art. 7 of the Federal Law of 01.04.96 No. 27-FZ “On Individual (Personalized) Accounting in the System of Compulsory Pension Insurance”. To do this, within two weeks from the date of conclusion of an employment contract with a new employee, you must submit to the territorial body of the Pension Fund of the Russian Federation at the place of your registration the questionnaire of the insured person in the ADV-1 form along with a list of documents in the ADV-6-1 form. And the FIU is obliged to issue a certificate within three weeks from the date of receipt of this questionnaire s pp. 9, 11 Instructions on the procedure for maintaining individual (personalized) records of information about insured persons, approved. Order of the Ministry of Health and Social Development of Russia dated December 14, 2009 No. 987n; Resolution of the PFR Board dated July 31, 2006 No. 192p.

It is better not to delay the execution of an employment contract

M.E. Stroganov, Kaliningrad

I hired a person. I had 3 days to complete it. On his first working day, a check came from the labor inspectorate. How can I prove that it works the first day and I have not had time to issue it yet?

: In confirmation that the new employee works for you only on the first day, you can provide any evidence, depending on the accepted document flow in the company:

• his application for employment, indicating in it the date of commencement of work, if, of course, you took such an application from the employee;
• testimonies of the newest employee and his colleagues;
• time sheet according to the unified form No. T-12 or T-13;
• an application to the personnel department for the execution of an employment contract and an order for employment.

A branch of a foreign company cannot be an employer

ABOUT. Krasnov, Moscow

We have a branch of a foreign organization accredited in Russia. We are hiring an employee. How to correctly indicate the employer in the employment contract and fill out the work book? Should the name of the foreign company or its branch be indicated in column 3 "Employment information" of the work book? Is it possible to write in column 3: “Employed in a branch of an organization ... in Moscow for a position ...”? And what seal should be put in the work book - the seal of a branch or a parent organization?

: Employers under the Labor Code of the Russian Federation are legal entities, individuals or other entities (but only in cases expressly specified in federal laws )Art. 20 Labor Code of the Russian Federation. A branch of a foreign company is not a legal entity m paragraph 3 of Art. 55 of the Civil Code of the Russian Federation. Therefore, the employer is the parent company itself.

You will find the full texts of the mentioned Codes, Regulations and Instructions: section "Legislation" of the ConsultantPlus system (information bank "Version Prof")

Therefore, in the employment contract, as well as in all personnel documentation, you indicate a foreign company as an employer. And in the employment contract, specify the place of work (Russian branch) and indicate its location. If on behalf of the employer (foreign organization) with the employees of the Russian branch, labor contracts are concluded by the head of the branch on the basis of a power of attorney, then the heading of the employment contract will look like this.

ADSL CO, ltd, established in accordance with the laws of the British Virgin Islands (ADSL Company), represented by the head of the accredited Branch in Russia, located at the address: Moscow, st. Pravdy, house 46, building 1, TIN 7718530739,

accreditation data

Levin I.I., acting on the basis of power of attorney dated 05.03.2010 No. 3, hereinafter referred to as the Employer, on the one hand,

When making an entry in column 3 of the section "Information about work" of the work book, in the form of a heading, you must indicate the name of the organization And p. 3.1 Instructions for filling out work books, approved. Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69. And in the employment record itself, specify that the employee has been accepted into a branch of this company accredited in Russia, and indicate his location.

As a result, the entry in the work book will be like this.

In the work book, you can put the stamp of a branch of a foreign company And clause 35 of the Rules for maintaining work books.

From reputable sources

Deputy Director of the Department of Salaries, Occupational Safety and Social Partnership of the Ministry of Health and Social Development of Russia

“Usually, work books are stored in the parent organization, and then the seal of the organization itself is affixed to them.
But the employer can delegate the authority to hire and dismiss employees to the head of the branch and appoint a person responsible for storing work books in the branch. In this case, the seal of the branch will be affixed in the work books of the employees of the branch.

Entrepreneurial activity is not work under an employment contract

L.M. Kunitsyna, Ostrov

We have entered into an employment contract with an employee. This is his main job. Then we found out that he was registered as an individual entrepreneur. Do we have the right to accept an entrepreneur for the main place of work, or do we need to conclude a part-time agreement with him?

: Entrepreneurial activity is not work under an employment contract, and the entrepreneur himself is not an employer for himself. Therefore, you did everything right by accepting an employee for the main job: your company is his only employer.

The place of residence for the conclusion of an employment contract does not matter

N.B. Gundareva, Moscow

We are a Moscow company. They wanted to hire a citizen of the Russian Federation, and in his passport - a stamp on registration at the place of residence in Bryansk. Can we refuse to hire him if he does not even have a temporary registration in Moscow, let alone a permanent one?
And in general, can we demand from him a certificate of temporary registration in Moscow, if his passport has a stamp on registration at the place of residence in another Russian city?

WARNING THE MANAGER

It is impossible to refuse an applicant for a job, motivating this by the fact that he does not have registration. If he goes to court and proves that he was refused for this very reason, the company may be required to conclude an employment contract with such a person. So it is necessary to refuse for another reason, for example, due to lack of experience.

: You cannot justify your refusal by the fact that the applicant does not have registration at the place of residence (stay) in Moscow e Art. 3 of the Law of the Russian Federation of June 25, 1993 No. 5242-1 “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”. This is discrimination I Art. 3 of the Labor Code of the Russian Federation, art. 64 of the Labor Code of the Russian Federation; Clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2.

You generally have no right to demand from the employee documents confirming that he has registration at the place of residence or at the place of stay in Moscow. The Labor Code of the Russian Federation contains a closed list of documents that an employee is required to submit when concluding an employment contract, and employers have no right to expand this list. e Art. 65 of the Labor Code of the Russian Federation. It is enough for the employee to present an identity document, for example, a passport of a citizen of the Russian Federation.

The qualification category of the worker must be indicated in the work book or in the document on education

EAT. Petrenko, Vorkuta

Please explain, what document should confirm the qualification categories of workers of various specialties, in particular, a welder, when applying for a job?

: The assigned rank is indicated:

• <или>in a document (diploma) on vocational education;
• <или>in the work book, if it was assigned by the employer m Clause 10 of the General Provisions of the Unified Tariff and Qualification Handbook of Works and Occupations of Workers of the National Economy of the USSR (Appendix to the Decree of the USSR State Committee for Labor and the Secretariat of the All-Union Central Council of Trade Unions dated January 31, 1985 No. 31 / 3-30), Clause 21 of the General Provisions of the Unified Tariff and Qualification Handbook of Works and professions of workers of the national economy of the USSR.

Thus, if a worker hired has a qualification category, then there should be an entry about this in his work book, or he should show you his diploma.

Due to the lack of a military registration document, you can be denied employment

N.P. Mukhina, Tver

An employee is hired by us. When I began to issue it, I asked him for a military ID. He said that he had a delay, and promised to bring a certificate about it. He brought me this certificate, but with the naked eye you can see that it is fake.
I tell the director that I cannot accept him, all the responsibility falls on me. And he replies that no one, they say, asks you to verify the authenticity of the certificate. And in general, inspections of military registration and enlistment offices are rare. How can I be? Can I hire an employee in this situation?

: The military registration documents that you must request when applying for a job from a military applicant are I Art. 65 of the Labor Code of the Russian Federation; p. 28 of the Regulations on military registration, approved. Decree of the Government of the Russian Federation of November 27, 2006 No. 719 (hereinafter referred to as the Regulations on military registration):

• <или>certificate of a citizen subject to conscription for military service, if a man of military age (18-27 years) and is not in the reserve;
• <или>military ID (temporary certificate issued instead of a military ID), if he is a military reserve.

If your new employee is exempted from military service for any reason on a permanent or temporary basis (has a delay), then a note about this is made in the military registration documents themselves.

Thus, a person liable for military service or a person subject to conscription must, when applying for a job, present one of the mentioned military registration documents. And, as explained to us in Rostrud, you have the right to refuse to hire such a person for failure to submit a military registration document A Art. 64 Labor Code of the Russian Federation.

From reputable sources

Deputy Head of the Department of Supervision and Control over Compliance with Labor Legislation of Rostrud

“ Refusal to hire due to the applicant’s lack of a military registration document is legitimate. Indeed, according to Art. 65 of the Labor Code of the Russian Federation, persons liable for military service and persons subject to conscription for military service are obliged to submit to the employer a document of military registration when concluding an employment contract.

At the same time, you can hire such an employee without a military registration document. After all, such a refusal is not motivated by his lack of business qualities. V Art. 64 Labor Code of the Russian Federation.

And besides, you do not bear any responsibility for hiring an employee without a military registration document. But you need to be sure to notify the military enlistment office about hiring an employee subject to military registration at sub. "a" p. 32 of the Regulations on military registration; sub. "a" p. 29 of the Guidelines for maintaining military records in organizations, approved. General Staff of the Armed Forces of the Russian Federation.

If the person being hired temporarily does not have a passport

A.B. Pimenov, Samara

Tell me, please, how to apply for a job for an employee who currently does not have a passport in her hands (due to the change of surname, the passport is being processed)?

: Ask the new employee for a temporary 2-P ID Appendix No. 2 to the Administrative Regulations of the Federal Migration Service for the provision of public services for the issuance, replacement and performance of the state function of registering passports of a citizen of the Russian Federation, proving the identity of a citizen of the Russian Federation on the territory of the Russian Federation, approved. Order of the FMS of Russia dated December 7, 2009 No. 339. This document confirms that your employee's passport is being processed. Such a certificate must be issued to her at her request by the FMS body that changes the passport T p. 17 of the Regulations on the passport of a citizen of the Russian Federation, approved. Decree of the Government of the Russian Federation of 08.07.97 No. 828. Enter the details of this certificate in the employment contract.

Also ask her for a marriage certificate in order to indicate her new name in the personnel documentation. And for the new passport data in the employment contract, leave a place for now.

Remember that if at the conclusion of the employment contract any information was not included in it (including information about the identity document of the employee), this does not entail the recognition of the employment contract as not concluded or its termination.

It’s just that the employment contract needs to be supplemented with the missing information later (after receiving the necessary information). It is entered directly into the text of the employment contract. A Art. 57 of the Labor Code of the Russian Federation.

Entrepreneur-employer is registered in the funds once

Yu.D. Korshunov, Krasnoyarsk

I am an entrepreneur and trader. Now I am hiring my first employee. Do I need to register an employment contract with him at the tax office, the Social Insurance Fund, the territorial health insurance fund and the Pension Fund?

: If you enter into employment contracts with employees, then you need to register as an employer-insured in the territorial bodies of extra-budgetary funds at the place of residence:

• in the Pension Fund of the Russian Federation for the purposes of compulsory pension insurance - within 30 days from the date of conclusion of the first employment contract with the employee m paragraph 1 of Art. 11 of the Federal Law of December 15, 2001 No. 167-FZ On Compulsory Pension Insurance in the Russian Federation”; clause 21 of the Procedure for registration and deregistration of insurers making payments to individuals in the territorial bodies of the Pension Fund of the Russian Federation, approved. Resolution of the Board of the Pension Fund of the Russian Federation of October 13, 2008 No. 296p, and since 2011 - also for the purposes of compulsory health insurance I Part 1 Art. 11 of the Federal Law of November 29, 2010 No. 326-FZ "On Compulsory Medical Insurance in the Russian Federation", Parts 2, 4 of Art. 17 of the Federal Law of November 29, 2010 No. 326-FZ "On Compulsory Medical Insurance in the Russian Federation";
• in the FSS for the purposes of compulsory insurance in case of temporary disability and in connection with motherhood, as well as insurance against accidents at work and occupational diseases - within 10 days from the date of conclusion of an employment contract with the first employee A p. 3 h. 1 art. 2.3 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood”; Art. 6 of the Federal Law of July 24, 1998 No. 125-FZ On Compulsory Social Insurance against Occupational Accidents and Occupational Diseases”; Clause 6 of the Procedure for registration and deregistration in the territorial bodies of the Social Insurance Fund of the Russian Federation of insurers - legal entities at the location of separate divisions and individuals, approved. Order of the Ministry of Health and Social Development of Russia dated December 7, 2009 No. 959n.

Note that registration in off-budget funds is the registration of the entrepreneur himself as an insured employer. You, as an insured employer, need to register with extra-budgetary funds only once. It is not necessary to register employment contracts concluded with employees either with extra-budgetary funds or with the tax office.

Salary in the employment contract - including taxes or not?

M.S. Shishkin, Obninsk

In the order for employment, my salary is 8200 rubles. And in my hands I get less (and more than a thousand rubles). This is right? How should tax be paid?

: If the employment contract, when setting the size of the salary (salary), does not directly say that the salary does not include personal income tax, then this means that the tax "sits" inside the salary. Therefore, the employer, as your tax agent, legally withholds and transfers to the budget 13% of personal income tax from your income (salary )paragraph 1 of Art. 207, paragraph 1 of Art. 210, paragraph 1 of Art. 224, paragraph 1 of Art. 226 Tax Code of the Russian Federation. After all, the payer of personal income tax is you as the recipient of income (salary), and not your employer, who pays you this income.

How to apply for a part-time job at the main place of work

M.D. Basenko, Moscow

We are hiring part-time full-time students. How to correctly register an employee (not a part-time worker) on a part-time basis, is it necessary to indicate in an employment contract, an order for employment and in a work book that he works part-time?

: In the employment contract of such an employee, it is necessary to indicate that he was hired on a part-time basis, prescribe the specific duration of his working time and hours of work, for example, 4 hours a day, from 10.00 to 14.00 Art. 57 of the Labor Code of the Russian Federation, Art. 93 of the Labor Code of the Russian Federation.

Specify the salary in the employment contract in full, that is, established according to the position based on the full rate. Since the employee works part-time, you will pay him half the salary (provided that he fully fulfills his rate). The work of the employee will be paid in proportion to the hours worked. And Art. 93 of the Labor Code of the Russian Federation.

In the order for employment in the form No. T-1 approved Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1 in the column "Conditions for employment, nature of work" you also need to indicate the mode of his work and the duration of working hours.

For example, if you agreed with an employee that his salary, subject to part-time work, will be 15,000 rubles, then a fragment of the job order will look like this.

If you do not want to rigidly fix the start and end times of an employee's workday, then set him a flexible work schedule. To do this, in the employment contract, indicate the total duration of working hours for the accounting period (for example, 20 hours per week )Art. 102 Labor Code of the Russian Federation.

In the employee's work book, the fact that he works part-time is not reflected in any way. That is, you make the usual record of his employment.

Employment from a holiday does not contradict the Labor Code

V.M. Drozd, Moscow

Is it possible to hire an employee from a non-working holiday?

: Can. If for your organization this day is a non-working day, then the employee will simply go to work at Art. 61 Labor Code of the Russian Federation:

• <или>on the next working day after the entry into force of the employment contract;
• <или>on the day specified in the employment contract itself.

For example, an employment contract with an employee is dated December 31, 2010. Then the day of going to work will be January 11, 2011 - the next business day after the day the employment contract enters into force at Art. 61 Labor Code of the Russian Federation. In the order for employment in the form No. T-1 approved Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1 indicate: "Employ from January 1, 2011."

By the way, in certain cases, work on non-working holidays is allowed, for example, in continuously operating organizations X Art. 113 of the Labor Code of the Russian Federation. And the employee may well go to work on that day.

An employment contract can be canceled by order

V.B. Grivtsov, Stavropol

A written employment contract was concluded with the employee, which indicates the day the work began. However, he did not show up for work that day. We do not know the reason for the absence. The management decided to hire another employee for this position.
I heard that in such cases it is possible to cancel the employment contract. But how to arrange this if we have not yet issued an employment order, the employee has not written an application for employment, and an entry on employment has not been made in the work book?

: The Labor Code of the Russian Federation really allows the employer to cancel the employment contract if the employee did not start work on the day the work began s Art. 61 Labor Code of the Russian Federation. Moreover, the employer is not obliged to find out the reasons for the employee's absence from work.

TELLING THE MANAGER

If a new employee did not come to work within the agreed time, then an order can be issued to cancel the employment contract with him. Moreover, regardless of whether the reason for the absenteeism of the failed employee is valid or not. Moreover, it is not necessary to find out what the reason is.

The procedure for canceling an employment contract has not been established.

In practice, an act is usually drawn up on the absence of an employee from work on the first working day.

On the basis of this act, the head issues an order to annul the employment contract and cancel the order for employment (if by that time it had already been issued).

An act on the absence of an employee from work on the first working day can be drawn up in any form, for example, like this.

Limited Liability Company "Republic"

ACT No. 1 on the absence of an employee from work on the first working day

Moscow

Time of drawing up the act: 18.00

We, the undersigned:
Chikhacheva Irina Vitalievna (head of personnel department),
Matvienko Igor Yurievich (head of the legal department),
Zaikina Veronika Viktorovna (Secretary),
drew up this act stating that the legal adviser of the legal department Chernyaev Petr Mikhailovich, in violation of the employment contract concluded with him dated 12/12/2010 No. 21, did not start work on the day the work began - 01/13/2011.

How to determine the period of an employment contract without specifying specific dates?

S.F. Nekrasov, St. Petersburg

An employee goes on parental leave. We are hiring a new employee in her place on a fixed-term employment contract. How can we prescribe the term of a fixed-term employment contract if we do not know the exact date when the main employee returns to work from parental leave?
And one more thing: is it possible to establish a probationary period in such an agreement? If so, which one?

: An employment contract concluded for the duration of the performance of duties of an absent employee is urgent m Art. 59 Labor Code of the Russian Federation. It's just that in this case, the term of the contract is determined by the onset of not a specific calendar date, but a certain event - the entry to work of the main employee.

In this case, in the employment contract of the second (substitute) employee, the term of the contract is indicated as follows: “for the period of temporary absence of an employee of such and such (full name) in connection with her stay on parental leave » Art. 57 of the Labor Code of the Russian Federation, art. 59 Labor Code of the Russian Federation. Such an employment contract will terminate on the day the main employee goes to work. At the same time, in this situation, the employer is not obliged to warn the temporary worker 3 calendar days in advance about the impending dismissal. n Art. 79 Labor Code of the Russian Federation.

The establishment of a test when hiring such an employee is quite legitimate, unless he belongs to persons who are prohibited from establishing tests. e Art. 70 of the Labor Code of the Russian Federation. The maximum test period is determined by the general rules m Art. 70 of the Labor Code of the Russian Federation:

• <если>employee "ordinary" - 3 months;
• <если>employee - head of the company, deputy head, head of a separate structural unit or chief accountant - 6 months.

Three employees can be hired per staff unit

T.M. Guselnikova, Kolomna

For the period of maternity leave for the main employee, we hired an employee who is also about to go on maternity leave. Can we hire another third person for this position? We have an urgent need for personnel, and, apparently, both workers will not be able to work in the near future.

: In this situation, you can take on another employee on a fixed-term contract after the second employee goes on maternity leave. In the employment contract with the third employee, indicate that you accept it for the period of absence of the temporary employee, but in any case until the main employee starts working.

1. Obtain from the employee a job offer. statement

This is not a required step because the law does not require this statement to be present. However, lawyers involved in the courts assure that it can come in handy.

Firstly, you can ask the employee to write the information necessary for the employer to issue a personal card, to be included in a personal file.

Secondly, it can come in handy in the event of a dispute over working conditions agreed by the parties. I remember the case when the employee was hired part-time. Around the same time, he was fired from his main job due to prolonged absenteeism. At the same time, at the job he did part-time, he quarreled with the management (also because of absenteeism) and complained to labor inspectors that he was accepted for the main job with part-time work, but, they say, they deceived and issued a part-time job. When checking, the employer showed the inspectors the statement of this employee, from which the initial intentions of the employee were completely clear: “I ask you to take me to a part-time job ...”. Similar disputes occur regarding working hours. For example, an employee is given a full-time, standard working day, and he subsequently insists that when he was hired, he asked for part-time and / or flexible working hours. Mostly disputes occur when, after the application, the employment contract is not drawn up or is drawn up, but does not contain all the conditions agreed by the parties.

If an application from an employee has been accepted, then it should be registered in the appropriate Application Registration Log.

2. Familiarize the employee with the documents.

According to Art. 68 of the Labor Code of the Russian Federation, when hiring (before signing an employment contract), the employer is obliged to familiarize the employee against signature with the job description, internal labor regulations, other local regulations directly related to the employee’s labor activity, collective agreement.

We recommend that you familiarize the employee, in particular, with the instructions on labor protection, regulations on departments, regulations on attestation, regulations on trade secrets, regulations on remuneration and bonuses, job descriptions, as well as work schedules, shift schedules.

3.Conclusion of a written employment contract with an employee and if there are grounds for an agreement on full liability.

According to Art. 67, an employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. When concluding employment contracts with certain categories of employees, labor legislation and other regulatory legal acts containing labor law norms may provide for the need to agree on the possibility of concluding employment contracts or their conditions with relevant persons or bodies that are not employers under these contracts, or draw up employment contracts in more copies.

Employment contracts are registered in the Book of Registration of Employment Contracts.

Please note that the conclusion of a full liability agreement is not a mandatory step. However, at this stage it can also be very useful. Let's assume that an agreement on full liability is not immediately concluded with an employee. And after hiring to conclude this contract, he already refuses. The law does not directly indicate how to resolve this situation: whether it is possible to force an employee to conclude an agreement on full liability, whether it is possible to punish or dismiss those who are recalcitrant. Among lawyers, judges, inspectors, there are different points of view on this matter. And in order not to prove your position to someone in case of an unpleasant event and avoid unnecessary problems, it is better not to get into this situation and conclude an agreement on full liability not much after, but before the employee’s resistance begins, even when deciding on the issue of admission and registration work. At the same time, do not forget that the conclusion of such contracts is possible only with a circle of employees strictly defined by the legislator.

If the enterprise maintains the Book of registration of agreements on full liability, then the concluded agreement should be registered in this Book.

4. Give the employee a copy of the employment contract.

Ensure that the employee affixes a signature on the copy of the employment contract transferred to the employer, confirming that the employee has received his copy of the contract. We recommend putting the phrase “I received a copy of the employment contract” before the signature. According to Art. 67 of the Labor Code of the Russian Federation, one copy of the employment contract is transferred to the employee, the other is kept by the employer. The receipt by the employee of a copy of the employment contract must be confirmed by the signature of the employee on the copy of the employment contract kept by the employer.

5. Issue an employment order.

The order (instruction) on hiring is issued in the form T-1 (on the hiring of an employee) or T-1a (on the hiring of employees), approved by the Decree of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004. on the basis of the concluded employment contract, and its content must strictly comply with the terms of the concluded employment contract. Don't use your form. Firstly, the named form applies “to organizations, regardless of their form of ownership, operating on the territory of the Russian Federation” (clause 2 of the Decree of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004) Secondly, if you create an “amateur” form, then you run the risk of forgetting to enter any of the mandatory details or conditions into it, for example, whether the work is the main one or part-time, whether a probationary period has been established, wage conditions. And this will lead to negative consequences in the event of a dispute with the employee in the future.

6. Register an order (instruction) on hiring an employee in the Register of orders (instructions).

7. Familiarize the employee with the order (instruction) about hiring against signature. According to Art. 68 of the Labor Code of the Russian Federation, the order (instruction) of the employer on hiring is announced to the employee against signature within three days from the date of the actual start of work.

8. Make a record of employment in the work book. According to Art. 66 of the Labor Code of the Russian Federation, an employer (with the exception of employers - individuals who are not individual entrepreneurs) keeps work books for each employee who has worked for him for more than five days, in the case when the work for this employer is the main one for the employee. If the employee does not have a work book, then the employer draws it up. At the request of the employee, information about part-time work is entered in the work book at the place of main work on the basis of a document confirming part-time work.

9. Fill out the Book of accounting for the movement of work books and inserts to them.

The forms of the Book of accounting for the movement of work books and inserts to them and the income and expense book for accounting for forms of work books and inserts to them were approved by Decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69.

10. Issue a personal card for an employee, to familiarize him against signature in a personal card with the entry made in the work book, with the information entered in the personal card. The personal card form T-2 was approved by the Decree of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004.

11. Register an employee's personal file if, in relation to his position, the employer has established the obligation to maintain a personal file.

Also keep in mind that this step-by-step procedure can be supplemented with other steps. For example, a competition for a position or a mandatory medical examination (according to Article 69 of the Labor Code of the Russian Federation, persons under the age of eighteen, as well as other persons in cases provided for by the Labor Code of the Russian Federation and other federal laws, are subject to mandatory preliminary medical examination (examination) when concluding an employment contract ).

There are several options for formalizing the relationship between the person providing the work and the person performing it. The method of employment determines the procedure for applying for a job, the rights and obligations of the parties, responsibility, the procedure for paying taxes and mandatory contributions, and much more.

In Russia, the relationship between an employee (executor) and an employer (customer) can be formalized in one of the following ways:

1. Distant work.
2. Borrowed labor.
3. informal employment.

Employment contract

Employment contract- an agreement between the employee and the employer, according to which the employee undertakes to regularly perform the functions assigned to him by the employment contract, observe the labor schedule, and the employer undertakes to provide conditions for the performance of work, provide the work itself and pay wages on time and in full. Relations within the framework of this agreement are regulated by labor legislation, in particular, the Labor Code and relevant federal laws.

Signs of an employment contract:

• the inclusion of an employee in the staff of the organization with the obligation to perform labor functions in a specific position;
• observance by the employee of the rules of internal labor regulations, work schedule;
• inability to transfer work to third parties;
• the obligation of the employer to regularly pay salaries and provide working conditions.

The procedure for registration under an employment contract

Registration for work under labor law includes the following steps:

1. Receiving documents from the employee.
2. Familiarization of the employee with local regulations.
3. The conclusion of the contract.
4. Preparation and registration of documents for the employee.
5. Making an entry in the workbook.

When hiring an employee, the employer is obliged to pay personal income tax and insurance premiums for him, provide tax, statistical and other reporting provided for by the legislation of the Russian Federation, observe the rights and interests of the employee.

You can familiarize yourself with the procedure for hiring under an employment contract in more detail.

Civil contract

Civil contract- an agreement between two or more persons, the purpose of which is the performance of works or services specified in the contract. A civil law contract is most often concluded if it is necessary to perform one-time work, if the volume of services provided is small and it makes no sense to hire a person for a short period of time.

Types of civil law contracts

There are several types of civil law contract:

• contract;
• paid services;
• commissions;
• transportation;
• transport expedition;
• trust management of property;
• instructions.

Note: the conclusion of a civil law contract as a whole is much more profitable and convenient than the execution of an employment contract.

note that when concluding a civil law contract, an entry in the work book is not made, but the time of work under the specified contract is included in the total length of service. If the contract is concluded with an individual, the employer is obliged to pay income tax and insurance premiums for the employee to the Pension Fund of the Russian Federation and the Compulsory Medical Insurance Fund (contributions to the FSS are paid only if this is stipulated in the contract).

Comparison of labor and civil law contracts

The main differences between labor and civil law contracts

sign	Employment contract	Civil contract
Subject of the contract	Performance of a labor function	The result of the performance of work or the provision of services
Opportunity to hire 3 persons	Impossible	Maybe
Compliance with internal labor regulations	Necessarily	Not necessary
Conditions for doing work	The employer is obliged to provide the employee with appropriate working conditions	The employer is not obliged to provide the employee with any conditions for the performance of work
Documentation	After drawing up the contract, it is necessary to draw up a large number of documents for the employee: employment order, staffing, vacation schedule, personal card, work book and SNILS (if the employee gets a job for the first time), etc.	After the execution of the contract, only an act of acceptance of work or provision of services is drawn up.
Size of salary	The salary cannot be less than the established minimum wage per month. The contract is considered invalid if it does not contain an indication of the amount of salary	The amount of payment is established by the contract and is not tied to the minimum wage, its indication in the contract is not necessary
Payment procedure	At least 2 times a month	The payment procedure is determined by the contract
Contract time	As a general rule, it is indefinite. In exceptional cases, a fixed-term contract may be concluded	Only urgent. The absence of an indication of the term in the contract makes it invalid.
Possibility to extend the term of the contract	Maybe	Impossible
Tools to get the job done	Provided by the employer. The employee, in agreement with the employer, can use personal property, but in this case he is compensated for the depreciation of this property	The employee uses his own funds to perform work (render services)
The procedure for terminating the contract	An employee can only be fired for certain reasons. The employee himself has the right to terminate the employment contract at his own request.	The procedure for terminating the contract is provided for in the document itself. There are no special conditions for its termination for both the employee and the employer.
Liability for non-fulfillment of obligations under the contract	For the employer, administrative responsibility is provided, for the employee - disciplinary (reprimand, reprimand, dismissal). There are no penalties for the employee.	Penalties for an employee may be provided for by the terms of the contract. If the employer does not pay and does not accept the work on time, he is obliged to pay the employee interest for the use of other people's money
Taxation	The employer pays income tax and insurance contributions to off-budget funds for the employee	If the contract is concluded with the individual entrepreneur personal income tax and he pays contributions on his own

You can familiarize yourself with the types of civil law contract, its pros and cons for the employer and employee in more detail.

Distant work

Remote work is the activity of an employee carried out outside the stationary place of work (at home, in transport, cafes, abroad, etc.). As a rule, an employee receives an assignment from an employer remotely: by mail, via the Internet, etc.

There are two types of remote work:

1. Home.
2. Remote.

home work involves the manufacture of products that have a material form, for example, collecting pens, growing mushrooms, embroidery, knitting, etc.

result remote work is not a thing, but information, information, objects of intellectual property. Remote employees can be journalists, editors, content managers, copywriters, programmers, etc.

A remote worker can be registered both under an employment contract and under a civil law contract.

Note: payment of mandatory payments and contributions depends entirely on the method of registration of the employee, and whether he has the status of an individual entrepreneur.

agency labor

Agency work is the work of employees on the orders of the employer, carried out in the interests, under the management and control of persons with whom they do not have labor relations. Since 2016, agency work, with the exception of certain cases, has been prohibited in the Russian Federation.

There are 2 types of agency work:

1. Outsourcing.
2. Outstaffing.

Outsourcing the transfer of certain functions or tasks to a third-party contractor (organization, individual entrepreneur, individual) is recognized. Relations within the framework of outsourcing in most cases are formalized by a contract for the provision of services. Most often, outsourcing is given to accounting, tax and personnel records (preparation and submission of declarations, reporting, etc.), legal support. Since outsourcing does not transfer the contractor's employees to the customer, this form of agency work is permitted and can be used by the employer to reduce the cost of maintaining the staff.

Outstaffing is the transfer of employees from the contractor to the customer. Employees, being on the staff of the contractor, carry out their work and are subordinate to a third party. Since 2016, this work has been prohibited and its use entails bringing to administrative responsibility.

An exception for the use of agency labor is made for:

• private employment agencies that meet certain conditions (availability of accreditation, application of the general taxation system).
• legal entities when sending an employee to their affiliates, subject to the conditions and procedure for providing employees approved by the relevant federal law. To date, this law has not been adopted.

Informal employment

Working without official registration of an employee threatens the employer with quite serious problems. The current legislation provides for administrative, tax and criminal liability for illegal hiring and employment of employees.

Thus, according to the Code of Administrative Offenses of the Russian Federation, an employer can be held liable for violation of labor laws, which, in turn, threatens him with a fine of 1,000 to 5,000 rubles. for individual entrepreneurs and from 30,000 to 50,000 rubles. for the organization.

An employer is brought to tax and criminal liability due to the fact that it does not properly fulfill the duties of a tax agent, namely, it does not calculate and transfer to the budget the amount of taxes for its unregistered employees.

Hiring is a procedure performed by personnel officers almost every day. And everything seems to be adjusted to automatism ... nevertheless, sometimes questions arise. For example, what if the employee does not have the original education document or does not have military registration documents? In this article, we will give answers to these and some other questions that most often arise when applying for a job.

Documents to be presented at the conclusion of an employment contract

Labor relations - relations based on an agreement between the employer and the employee on the personal performance by the latter of a labor function for a fee (work according to the position in accordance with the staff list, profession, specialty indicating qualifications; a specific type of work assigned), subordination of the employee to the rules of the internal labor schedule when provision by the employer of working conditions provided for by labor legislation and other acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract (Article 15 of the Labor Code of the Russian Federation).

Labor relations arise between the employee and the employer on the basis of an employment contract concluded by them in accordance with the Labor Code of the Russian Federation by agreement. However, an agreement may also be concluded on the basis of election to a position or by competition, appointment to a position, assignment to work on account of an established quota, or a court decision on the conclusion of an agreement. In addition, labor relations may arise on the basis of the actual admission of the employee to work with the knowledge or on behalf of the employer or his representative in the case when the employment contract was not properly executed.

Article 65 of the Labor Code of the Russian Federation establishes that when concluding an employment contract, a person entering a job presents to the employer:

- Passport or other identification document. Other documents include, for example, a sailor's passport, or a sailor's identity card, since in accordance with Decree of the Government of the Russian Federation of December 1, 1997 N 1508 "On Approval of the Regulations on the Sailor's Passport" it is an identity document;

- a work book, except for cases when an employment contract is concluded for the first time or an employee is hired on a part-time basis;

— insurance certificate of state pension insurance;

- military registration documents - for those liable for military service and persons subject to conscription for military service. Such documents, on the basis of clause 28 of the Regulations on military registration, approved by Decree of the Government of the Russian Federation of November 27, 2006 N 719, include a certificate of a citizen subject to conscription for military service (for conscripts) and a military ID (a temporary certificate issued instead of a military ID) (for those liable for military service);

- a document on education and (or) qualifications or the availability of special knowledge - when applying for a job that requires special knowledge or special training. In addition to diplomas of education, you can require other documents. For example, when you see a doctor, you need to request a specialist certificate, when you see an auditor, you need an auditor qualification certificate, etc.;

- a certificate of the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution on rehabilitating grounds, issued in the manner and in the form established by the federal executive body responsible for the development and implementation of state policy and regulatory legal regulation in the field of internal affairs - when applying for a job related to activities to which, in accordance with the Labor Code of the Russian Federation, other federal law, persons who have or had a criminal record, are or have been subjected to criminal prosecution are not allowed.

Regarding the last document, employers have a question: is the employee himself obliged to provide such a certificate or should the employer make a request? Of course, the employee independently applies to the competent authorities and receives a certificate of the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution on rehabilitating grounds. The employer doesn't have to do anything.

In some cases, taking into account the specifics of work, this Code, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation may provide for the need to present additional documents when concluding an employment contract (part 2 of article 65 of the Labor Code of the Russian Federation). For example, Art. 283 of the Labor Code of the Russian Federation allows, when hiring a part-time job for hard work or work with harmful and dangerous working conditions, to require a certificate of the nature and working conditions at the main place of work. And on the basis of the Federal Law of July 25, 2002 N 115-FZ "On the Legal Status of Foreign Citizens in the Russian Federation", an employer may require a work permit from a foreign citizen.

Note! It is forbidden to demand from a person applying for a job documents other than those provided for by the Labor Code of the Russian Federation, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation.

Quite often, employers, among other documents, require from an employee a certificate of registration of an individual with a tax authority at the place of residence in the territory of the Russian Federation (TIN), and if there is none, they refuse to accept. We must say right away that the request for this document, especially the refusal to hire due to the failure to provide a TIN, is a gross violation of labor legislation. You ask: how can it be without a TIN, because personal income tax must be transferred from wages and this document is simply necessary? Indeed, it is the TIN that identifies a specific person in the system of taxes and fees, and the employer will need it to transfer personal income tax, but you can only explain to the employee the need for this document.

The employer's requirement to present a document on registration at the place of residence or stay when applying for a job is also illegal. The absence of this document cannot serve as a basis for refusing to conclude an employment contract (Letter of Rostrud dated December 18, 2008 N 6967-TZ).

For your information. When concluding an employment contract for the first time, a work book and an insurance certificate of state pension insurance are drawn up by the employer.

If a person applying for a job does not have a work book due to its loss, damage or for any other reason, the employer is obliged, upon a written application of this person (indicating the reason for the absence of a work book), to issue a new work book.

After presenting all the necessary documents, the employee is usually asked to write a job application. However, such a statement has lost its significance, since the signing of an employment contract is mandatory. But if you write a statement, it won’t be worse: this is an interim agreement on going to work, which, purely psychologically, can be important for the candidate. In addition, if this is the first place of work of a person, then at the end of the application he writes that he has not been issued a work book before, and signs it, which means that the employer needs to have a work book.

Note that in some cases the application is still necessary (in most cases in government agencies). In particular, when entering the municipal service, a citizen is required to submit an application with a request for admission to this type of service (Federal Law of March 2, 2007 N 25-FZ "On Municipal Service in the Russian Federation").

Familiarize yourself with local regulations

Based on Art. 68 of the Labor Code of the Russian Federation, when hiring (before signing an employment contract), the employer is obliged to familiarize the employee against signature with the internal labor regulations, other local regulations directly related to the employee’s labor activity, the collective agreement.

Everything is clear with the internal labor regulations - they regulate the procedure for hiring and dismissing employees, the basic rights, duties and responsibilities of the parties to the employment contract, the working hours, rest periods, incentives and penalties applied to employees, as well as other issues of regulating labor relations in this employer. The employee must be familiarized with this document. But with regard to other local acts, the question arises - which of them to familiarize the employee with? We answer. It is necessary to familiarize the employee not with all the local acts available in the organization, but only with those that directly relate to his work activity. For example, these may be provisions on wages (Article 135 of the Labor Code of the Russian Federation), on the storage and use of personal data of employees (Article 87 of the Labor Code of the Russian Federation), on trade secrets, and on certification of employees.

Note! The fact of familiarization with local regulations must be confirmed by the signature of the employee. To do this, a journal of familiarization with local acts is started or the employee signs on the familiarization sheet, which is filed with the local normative act. There will be no superfluous mark on familiarization in the employment contract, for example: "I am familiar with local regulations before signing the employment contract" (then signature, date).

Why do you need an introduction, you ask. The fact is that if the employee is not familiarized with local acts relating to his labor activity, it will be problematic to hold him accountable in case of any misconduct. For example, if the employer has not developed and adopted local acts regulating the work with confidential information, or employees are not familiar with them, then no claims can be made against the employee who disclosed such information.

Employment contract and order of admission

Article 57 of the Labor Code of the Russian Federation establishes a list of conditions and information that are mandatory for inclusion in an employment contract: place of work, labor function, date of commencement of work, terms of remuneration, etc. I would like to focus on the condition of remuneration. Quite often, the following phrase is written in an employment contract: "Remuneration is carried out according to the staffing table" or "The employee's salary is set in accordance with the staffing table." To what extent do these statements comply with the law? Not at all, and here's why. Based on Art. 135 of the Labor Code of the Russian Federation, the condition on wages is a mandatory condition of the employment contract and its amount is determined in it in accordance with the wage systems in force for this employer. The official salary is a fixed amount of wages (Article 129 of the Labor Code of the Russian Federation). And in the employment contract, the terms of payment must be fixed without fail, and Art. 57 of the Labor Code of the Russian Federation specifies that it is necessary to indicate the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments.

For your information. If the employee started work with the knowledge or on behalf of the employer or his representative without concluding an employment contract, the employer is obliged to draw up such an agreement with him in writing no later than three working days from the date the employee was actually admitted to work (Article 67 of the Labor Code of the Russian Federation).

We will not consider the wording of other terms of the employment contract - this is a topic for a separate article. We only add that the employment contract is concluded in writing in two copies, each of which is signed by the employee and the employer (Article 67 of the Labor Code of the Russian Federation). One copy is given to the employee and the other is kept by the employer. At the same time, we recommend that you take from the employee a written confirmation of receipt of a copy of the employment contract. It is best if such a mark is on a copy of the contract kept by the employer.

On the basis of the employment contract signed by the parties, an order for employment is issued. Recall that since 2013, the unified forms approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1 are not mandatory, therefore the order can be issued in the form approved by the organization.

In any case, the order should reflect:

- surname, name, patronymic and position of the employee;

— structural subdivision (if any);

- salary (tariff rate);

- the period of probation (if such is established in the employment contract).

You can specify other conditions that reflect the specifics of labor activity (for example, that an employee is accepted for part-time work).

Note. The content of the order (instruction) must comply with the terms of the contract.

Based on Part 2 of Art. 68 of the Labor Code of the Russian Federation, the order (instruction) of the employer on hiring is announced to the employee against signature within three days from the date of the actual start of work. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).

We note one nuance when issuing an order - the dates of the order and the start of work may not coincide. For example, the start date of work determined by the employment contract may be later than the date on which the contract was signed and the order was issued. Or vice versa, the order may be issued later than the employee started work (with actual admission), respectively, the date of the order will be later than the date the employment relationship began.

Personal card, work book and other documents

Filling out a personal card is an important stage in applying for a job. In addition to a personal card for a scientific and scientific-pedagogical worker, the T-4 form "Record card of a scientific, scientific-pedagogical worker" is also maintained.

Why is a personal card so important? Because it records information about the employee, as well as all the events that happen to him during the period of labor activity in a particular organization - transfer, advanced training, vacation, etc. In addition, on the basis of the Rules for maintaining and storing work books with each contribution in the work book with an entry about the work performed, transfer to another permanent job and dismissal, the employer is obliged to acquaint its owner against signature in his personal card, in which the entry made in the work book is repeated. As you can see, a personal card is not just a whim, but a requirement of regulations.

For your information. The personal card must be filled out by the personnel officer on the basis of the documents submitted by the employee. Then the card is certified by the signatures of the employee and personnel officer.

Is it possible to keep a personal card in electronic form? This issue is increasingly of concern to personnel officers, since electronic document management is largely replacing paper. Instructions for the application and filling out the forms of primary accounting documentation contained in Resolution N 1 do not answer the question of whether the cards should be kept in handwritten or electronic form. But since when filling out some sections of a personal card, the entries made must be certified by the signature of the employee, maintaining personal cards only in electronic form is unacceptable.

Sometimes the employee's personal card is turned into a kind of personal file, putting in it copies of documents, statements and other documents relating to the employee's labor activity. This is mistake. If the company has personal files, then personal cards can be placed in them (usually for a personal file they start a folder made of thin cardboard with strings).

Let us dwell separately on the work book, since a job entry must be made in it.

By virtue of h. 3 Article. 66 of the Labor Code of the Russian Federation, an employer (with the exception of employers - individuals who are not individual entrepreneurs) maintains work books for each employee who has worked for him for more than five days, in the case when the work for this employer is the main one for the employee. Information about part-time work is entered in the employee's work book at the place of main work on the basis of a document confirming part-time work.

According to paragraph 8 of the Rules for maintaining and storing work books, an entry in the work book on employment is made on the basis of the relevant order (instruction), and no later than a week. And now we will tell you how to do it right.

The main document that establishes the rules for making entries in the work book is the Instruction for filling out work books, approved by Decree of the Ministry of Labor of the Russian Federation of 10.10. , fountain or gel pen, rollerball pen (including ballpoint), light-resistant ink (paste, gel) in black, blue or violet and without any abbreviations. For example, it is not allowed to write "pr." instead of "order", "disp." instead of "instruction", "trans." instead of "translated".

Note. The work book of the established form is the main document on the work activity and work experience of the employee (Article 66 of the Labor Code of the Russian Federation).

To make a record of admission, we will be guided by clause 3.1 of the Instruction, in accordance with which, first of all, in column 3 of Sec. "Information about the work" of the work book in the form of a heading indicates the full name of the organization, as well as its abbreviated name (if any). Under this heading:

- in column 1 the serial number of the entry being made is put;

- column 2 indicates the date of employment;

- in column 3, an entry is made about acceptance or appointment to a structural unit of the organization, indicating its specific name (if the condition for working in a specific structural unit is included in the employment contract as an essential one), the name of the position (job), specialty, profession, indicating qualifications;

- column 4 contains the date and number of the order (instruction) or other decision of the employer, according to which the employee was hired (see the sample on page 30).

				Limited	Order dated 11.09.2013
				(LLC "Monday")
				Admitted to the planning department
				economist.

If the work book is drawn up for the first time, then before entering information about work, you need to indicate information about the employee on the first page (title page).

Some personnel officers in the book of people getting a job for the first time, before information about work, write the phrase "I had no work experience before being accepted into such and such an organization." It is absolutely impossible to do this - this entry is not provided for either by the Rules for maintaining and storing work books, or by the Instruction.

What to do when the employee is actually allowed to perform work, and the employment contract is concluded later? The acceptance order will be issued at a later date. For example, an employee started work on September 18, and the employment contract and order were issued and signed only on September 20. The entry will look like this:

				Information on hiring, transfer to another permanent job, qualifications, dismissal (with reasons and a link to the article, paragraph of the law)	Name, date and number of the document on the basis of which the entry was made
				Limited	Order dated 20.09.2013
				responsibility "Monday"
				(LLC "Monday")
				Accepted to the warehouse complex
				by profession a storekeeper.

Do not forget to register the work book in the book of accounting for the movement of work books, indicating the series and number of the book and other information provided for by the form (Appendix 3 to the Decree of the Ministry of Labor of the Russian Federation of 10.10.2003 N 69). Upon receipt of a work book in connection with the dismissal, the employee signs in a personal card and in the book of accounting for the movement of work books and inserts in them.