When settling for a new job, any citizen wants to receive certain guarantees from the organization. The most common fear is to be refused a job. Art. 64 TC regulates those moments when the employer does not have the right to refuse the applicant.
Let us consider in more detail the legal side of possible guarantees for employment.
Basic concepts
The legal side of the issue is inextricably linked with the concepts of an employment contract and guarantees.
An employment contract is understood as an agreement between an employee and a manager establishing their rights and obligations among themselves. According to such an agreement, the employee undertakes to perform work in accordance with his qualifications and the appointed position, and the head, in turn, undertakes to provide all conditions for work and adequately pay for the employee's work.
Under the guarantee is understood those means which are intended to provide the employee with rights in the field of social and labor relations. What guarantees do the applicant receive upon concluding an employment contract? Drawing up an employment contract, he receives social and legal guarantees.
Legal basis
According to the Labor Code, any formal job placement requires the execution of an employment contract. Work under an employment contract includes a list of those special guarantees that provide for the protection of the constitutional rights of a citizen. These include independent choice of profession and field of activity.
All guarantees that are provided to a citizen applying for a job are prescribed in the Labor Code of the Russian Federation.
Art. 64 of the Labor Code of the Russian Federation contains a list of general guarantees, namely those provisions that are not a good reason for refusal when hiring. This includes:
- gender, racial, nationality of a citizen;
- social and property status of the applicant;
- place of residence and registration of a citizen;
- a woman’s pregnancy or her small children;
- a written invitation to the applicant from another employer, received within a month from the day of dismissal from the previous place of work;
- other facts not related to the business and professional qualities of a citizen.
Reasons for refusing employment
Despite the provisions of the Labor Code, the refusal to conclude an employment contract takes place in the following cases:
- The age of the candidate does not fit the legal framework.
- The applicant does not have the necessary skills and abilities, and also does not have the necessary qualifications.
- The business qualities of the applicant do not meet the requirements of the vacancy.
- The applicant cannot provide the necessary package of documents for concluding an agreement.
- The applicant refuses to comply with the mandatory requirements for employment (for example, passing a medical examination).
Guarantees for the employer
Work under an employment contract implies guarantees not only for the applicant, but also for the employer. And first of all, this is a guarantee that the head of the organization will not suddenly remain without employees. Indeed, according to the Labor Code, an employee is obliged to notify the boss of his dismissal at least a few weeks in advance. Usually this time is used to find a new employee.
In addition, the conclusion of the contract is a guarantee that all the requirements that are presented to the employee will be met.
The employer has the right to describe the duties of the employee, determine the responsibility that may arise if the employee does not fulfill obligations.Equally important is the indication of liability, if any. Indeed, some positions involve working with expensive equipment or machinery. And the corresponding clause in the contract will give the manager confidence for the safety of things, and the employee will make them treat them more carefully. Moreover, the employer has the right to impose liability on the employee, and the latter will be obliged to reimburse all losses caused by his actions or inaction.
Many organizations began to include a clause on non-disclosure of trade secrets in the contract, which also obliges the employee to keep the information provided confidential.
Guarantees for the employee
Guarantees at the conclusion of an employment contract are divided into mandatory and additional. Particular attention, of course, is given to mandatory guarantees.
These include:
- Salary. The procedure and method of payment of wages must be specified in the agreement. At the same time, the employer does not have the right to change this condition unilaterally. According to the legislative provisions, remuneration cannot be less than the subsistence level if the employee works full time.
- Work mode. During the preparation of the labor agreement, the mode of work by which the person will work must be determined. It can be a full-time job, a shift or flexible schedule, a shift method, etc. Also, the employer does not have the right to require the employee to perform duties outside of working hours. As for the processing, they must be paid on the fact of the time worked in excess of the established wage.
- Relaxation. According to the law, every citizen has the right to annual leave, which is paid, and the employer does not have the right to not provide it. In addition, leave may be granted as a reward or compensation, if required by the specifics of the work.
- Pension savings. The employer must pay insurance premiums for its employees, which ensures a good pension in the future.
- Medical insurance. In the absence of medical insurance, the employer must offer its employee its registration.
Naturally, the most important guarantee for the employee will be the availability of an employment contract, which is the main argument in the event of conflict in the workplace. Courts and other instances only consider disputes in the presence of this document. Also, when defending their rights, Art. 64 of the Labor Code of the Russian Federation with comments.
Additional Warranties
Additional guarantees may include completely different factors. It all depends on the capabilities and desires of the leader himself.
Here are some examples of additional warranties:
- provision of a place in a kindergarten for the employee's young children;
- provision of a place in a sanatorium for treatment or recreation;
- issuing a loan to improve housing conditions;
- provision of funds for travel to the place of work;
- issuance of bonuses according to the results of work, etc.
Special moments
According to the adopted rules, all payments under guarantees are made by the employer. But there are some cases when the employee performs duties in the interests of other organizations or bodies, respectively, the involved structures and pay for this work.
The Constitution of the Russian Federation establishes the right of a citizen to receive education, including without stopping from production. Therefore, labor legislation provides for compensation for those citizens who combine study and work. This includes additional study leaves, reduced working hours, payment of the road to the place of study and vice versa, etc. Compensation does not depend on the form of organization.
Many job applicants are concerned about the issue of sick leave payment.This may concern temporary disability, accident or pregnancy and childbirth. If the injury is received at the workplace, then the employer is obliged to fully recover the lost earnings, medical expenses and expenses for further rehabilitation.
There are categories of workers who are required to undergo a medical examination. All costs in this case are borne by the organization. Such categories include employees of trade, harmful production, food industry, drivers, etc.
Guarantees are also provided to those employees who are undergoing advanced training. At the same time, it can be with a separation from work, without a break, with part-time employment, according to individual training. If an employee is sent for further training, they are required to preserve his workplace and his earnings.
What threatens non-compliance with the law?
If the employer does not comply with the requirements of Art. 64 of the Labor Code of the Russian Federation, then he faces the following types of responsibility:
- Administrative For this type of violation, a fine of 5-50 minimum wages is imposed. If this is a recruitment, then the manager will be disqualified for 1-3 years.
- Material. In this case, the manager is obliged to pay material damage to the injured party.
- Disciplinary. Here, a supervisor may be disciplined, reprimanded, reprimanded or fired.
- Criminal In case of non-compliance with Art. 64 TC, the head of the organization can be paid in cash in the amount of 200-500 minimum wages or correctional labor 120-180 hours. In case of very serious violations that entail the death of an employee, the manager may receive up to five years in prison.
What is the expression of discrimination?
According to Art. 64 TC, the labor contract is based on the professional qualities of the person. And if a situation arises that the employer refuses when applying for a job, he must explain the refusal in writing.
The manager is responsible for discrimination on the basis of sex, color, nationality, etc. Criminal liability is assumed if a pregnant woman or a woman with small children is not hired. It is forbidden not to hire people with HIV and their family members.
Despite the fact that Art. 64 of the Labor Code presumes a ban on certain facts in employment, there are nuances in the work that are not considered discrimination. For example, the preference of more qualified professionals.
Comments
According to Art. 64.1 of the Labor Code of the Russian Federation, any unreasonable refusal when applying for a job is prohibited. This provision is supported by Art. 19 of the Constitution of the Russian Federation, indicating equality of rights of citizens and prohibiting any form of restriction of these rights.
Part 2 of the article 64 of the Labor Code of the Russian Federation considers the refusal unreasonable if it does not take into account the business qualities of the applicant. This rule applies to all citizens, regardless of age, race, registration, etc.
Part 3 of the article prohibits refusing a woman in a position, and part 4 - to those citizens who were invited to a vacancy in writing in the translation order.
If the applicant considers the refusal unreasonable, he has the right to go to court.