Terms and procedure for concluding an employment contract. Is it necessary to conclude an employment contract in writing? An employee who has entered into an employment contract must

What's happened labor contract And what guarantees does this document give? What legal aspects apply when concluding or terminating an employment contract? In our article, we tried to cover these issues in as much detail as possible.

The expanded concept of an employment contract is defined by Article 56 of the Labor Code of the Russian Federation, but, in short, an employment contract is an agreement between two parties (between an employer and an employee) concluded on the basis of the emergence of mutual rights and obligations. In accordance with this agreement, the employee assumes responsibilities for the performance of certain functions, strictly obeying the rules internal regulations operating in the organization. In turn, the employer assumes the obligation to provide work specified in the employment contract, timely payment and necessary working conditions.

According to Art. 67 of the Labor Code of the Russian Federation labor Relations between employer and employee must be in writing.

The meaning of the employment contract

An employment contract is the main basis for the emergence and operation of labor relations between an employee and an employer (employer). This document is an legal form to attract, distribute/redistribute job duties, and also acts as a form of communication between the employee and members labor collective. An employment contract establishes the principle of the emergence of labor relations and determines the conditions for its implementation.

Rules for drawing up an employment contract

In the labor legislation, there is no specific model of an employment contract, however, regardless of its final form, the contract is concluded in writing and drawn up in two copies, each of which must be signed by both parties. Based on Art. 57 of the Labor Code of the Russian Federation, clauses of the employment contract must contain:

The name of the organization and the full name of the employee between which the contract is concluded.
Place of work.
Directly the type of labor activity, position and type of work (main or part-time).
Date of commencement of work (in case of concluding a fixed-term employment contract, it is necessary to indicate the date of expiration of the document).
Rights and obligations of the employee and the employer.
Payment terms (salary, amount tariff rate, surcharges, etc.).
Mode of work and rest.
Guarantees and compensations.
Additional conditions, if any (existence and duration of the probationary period, business trips, part-time, etc.).

Important! The absence of one of the above items in the employment contract determines the invalidity of the document and may be the basis for its cancellation or termination.

If an employment contract is drawn up incorrectly and the employee begins to perform the relevant functions on behalf of the employer, the contract is considered concluded and within 3 working days the contractual relationship must be formalized properly (part 2 of article 67 of the Labor Code). The beginning of the employment contract is considered the moment of its signing by the employee and the employer or from the date of the actual start of work specified in the contract. In the absence of a start date in the contract, the employee is obliged to start performing his duties on the next working day after the entry into force of the contract.

The employer has the right to cancel the employment contract unilaterally if the employee did not start performing functions on the day specified in the contract. on the basis of Art. 61 of the Labor Code of the Russian Federation, a canceled employment contract is considered not concluded.

The term for concluding an employment contract

Article 58 of the Labor Code of the Russian labor legislation provides for two types of conclusion of an employment contract:

A fixed-term employment contract, which is concluded for a fixed period, but not more than 5 years (except as provided for by the Labor Code of the Russian Federation and other federal laws). Fixed term contract special conditions performance and nature of the forthcoming work (part 1 of article 59 of the Labor Code).
An employment contract concluded for an indefinite period.

According to the current legislation of the Russian Federation, every citizen has the right to conclude a second employment contract - for combined work (Article 283 of the Labor Code of the Russian Federation), with the exception of certain categories of workers who are prohibited from performing additionally paid work on a part-time basis (law enforcement officers, judges, federal civil servants, etc. .d.).

Guarantees at the conclusion of an employment contract

In accordance with legislative framework all citizens of Russia have equal rights and opportunities to conclude an employment contract: the employee has the freedom to choose a place of work, and the employer has the right to independently select personnel, in accordance with their business and professional qualities. At the same time, the Labor Code of the Russian Federation provides for certain guarantees arising from the conclusion of an employment contract. So, on the basis of Article 64 of the Labor Code of the Russian Federation, a refusal to conclude an employment contract must be justified, regardless of circumstances not related to the business qualities of the employee (gender, nationality, property and social status, etc.). Refusal to conclude an employment contract with a citizen of the Russian Federation due to the latter's lack of registration at the place of residence is illegal and contradicts part 1 of Art. 27 of the Constitution of the Russian Federation and Art. 64 of the Labor Code of the Russian Federation. It is also considered unreasonable to refuse due to circumstances arising in connection with the woman’s pregnancy and the presence of minor children and employees who were invited to work on the terms of transfer from another employer within 1 month from the date of dismissal from their previous place of work.

The reason for the refusal to conclude an employment contract is communicated by the employer in writing. Refusal, as well as the right of ownership, can be appealed to judicial order.

In the Russian labor legislation, there are a number of cases, the occurrence of which obliges the employer to hire previously laid-off workers, namely:

Citizens who worked in state structures before being drafted / entering military service - within 3 months after being dismissed from military service in the same organizations for a position not lower than the one they occupied before being called up / entering (Article 23 federal law dated May 27, 1998 No. 76-FZ “On the status of military personnel”).
Trade union employees who were released from work in the organization due to their election to elective positions in trade union organizations - after the expiration of their term of office, they must be given the same or equivalent position in the same organization (Article 26 of the Federal Law of 12.01.1996 No. 10- Federal Law "On trade unions, their rights and guarantees of activity").

Refusal to conclude an employment contract is considered justified in the following cases:

lack of vacancies;
downsizing or staffing carried out in the organization;
liquidation of the enterprise.

In addition, a refusal is justified in the following cases:

Inconsistency of the age of the applicant for a certain position with the requirements of the Labor Code of the Russian Federation;

The applicant does not have the documents necessary to conclude an employment contract;

Refusal of the applicant to undergo a preliminary medical examination;

The applicant's refusal to sign the contract containing the clause on full liability, as well as the applicant's refusal to obtain access to state secrets (if any, as a necessary condition for working in this position).

In addition to civil labor and administrative law unreasonable refusal to conclude or terminate an employment contract is regulated by Art. 145 of the Criminal Code of the Russian Federation.

An employer is criminally liable for refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under the age of 3 years. This violation entails a fine of up to 200,000 rubles, in the amount of the convicted person's salary for a period of up to 18 months, or punishment in the form of compulsory work for up to 360 hours.

Termination of an employment contract

The employment contract is legal document conclusion, modification or termination of which is carried out in writing in accordance with the requirements of the labor legislation of the Russian Federation. General grounds for termination of an employment contract are provided for in Article 77 of the Labor Code of the Russian Federation and include in the list:

expiration of the contract;
agreement of both parties;
conscription / admission of an employee to military service;
transfer of an employee to an elective position or to another organization;
termination of the employment contract at the initiative of the employer (liquidation of the organization, reduction in the number of staff, inconsistency of the employee with his position or repeated gross violation of his duties without good reason);
termination of the employment contract at the initiative of the employee own will with the notice of the manager in writing no later than 2 weeks before the scheduled date of dismissal);
termination of the contract at the initiative of third parties (parents and guardians of minors, trade unions, etc.);
refusal of an employee to work with other working conditions or to transfer him to another locality;
the passing of a sentence or the entry into force of a court decision on conviction to imprisonment;
other grounds and conditions.

The termination of an employment contract concluded for a combined job occurs for the same reasons as for the main place of work, and has one additional reason - in the case of hiring an employee for this position, for whom this place of work will be the main one.

According to the Labor Code of the Russian Federation, this is an agreement that an employee and an employer conclude between themselves and, according to which, the employee undertakes to perform work in a certain specialty corresponding to his qualifications, and the employer, in turn, undertakes to pay wages to the employee and provide him with working conditions, in accordance with the labor legislation of the Russian Federation.

In fact, an employment contract is nothing more than an agreement between an employer and an employee, according to which the parties have mutual rights and obligations, but in fact, an employment contract provides the employee with social guarantees and is more beneficial to the employee than to the employer, in contrast to the civil legal contract.

It is worth noting that recently the introduction of amendments to the employment contract has undergone some changes, so now the employment contract indicates:

Surname, name and patronymic of the employer who concluded the employment contract;

Documents proving the identity of the employee and employer;

TIN (for employers);

Date and place of conclusion of the employment contract.

While earlier in the employment contract they indicated only:

Surname, name and patronymic of the employee;

Surname, name and patronymic of the employer who concluded the employment contract.

According to the employment contract, the employer must:

Provide the employee with work according to the stipulated labor function;

Ensure the working conditions provided for by the Labor Code of the Russian Federation, laws and other regulatory legal acts, collective agreement, agreements, local regulations containing norms labor law;

Timely and in full to pay the employee wages.

According to the employment contract, the employee is obliged:

Personally carry out the terms of this agreement labor function;

Comply with the internal labor regulations in force in the organization.

Recall that these general obligations of the parties are enshrined in the very definition of the employment contract, given in Art. 56 of the Labor Code of the Russian Federation.

A detailed list of data that must be reflected in the employment contract is established in Art. 57 of the Labor Code of the Russian Federation. However, before moving on to the content of the employment contract, you should first consider its form.

Following the provisions of Art. 67 of the Labor Code of the Russian Federation, an employment contract is concluded in writing, drawn up in two copies, each of which is signed by both parties. One copy is given to the employee, and the second remains with the employer.

In addition, I would like to note that hiring by order is far from concluding an employment contract, because it is impossible to reflect all the conditions relating to the mutual rights and obligations of the employee and employer in the hiring order.

An equally important advantage of an employment contract is that all mutual rights and obligations of the employee and the employer are recorded in a single act binding on both parties, thus, in the event of a labor dispute, the possibility of checking, comparing the terms of the contract with the relevant provisions of the law becomes obvious.

An employment contract that is not properly executed is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. When the employee is actually admitted to work, the employer is obliged to draw up an agreement with him in writing no later than three days from the date of admission to the performance of the labor function.

An employment contract comes into force from the day it is signed by the parties or from the day the employee is actually admitted to perform work duties.

Analyzing the content of the employment contract, it should be noted that the composition of the essential terms of this contract is not advisory, but mandatory.

Significant are such the necessary conditions employment contract, without the agreement of which the conclusion of such an agreement is impossible. So, the employment contract states:

Surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual);

Place of work (indicating structural unit);

Start date of work;

The name of the position, specialty, profession, indicating qualifications in accordance with staffing organization or work function. Article 57 of the Labor Code of the Russian Federation specifically stipulates that the distortion of the name of a profession (position) in order to exclude or reduce the cost of providing benefits or guarantees to employees will be regarded as a violation of labor legislation with all the ensuing consequences;

The rights and obligations of the employee;

Rights and obligations of the employer;

Characteristics of working conditions, compensation and benefits to employees for working in difficult, harmful and (or) dangerous conditions;

The regime of work and rest (if it differs from general rules established in the organization);

Conditions of remuneration (including the size of the tariff rate or official salary, surcharges, allowances and incentive payments);

Types and conditions of social insurance directly related to labor activity.

The fact that the Labor Code of the Russian Federation provides a detailed list of essential conditions makes it possible to develop a standard form of an employment contract. The form of an employment contract is not unified and, therefore, can be developed in each organization based on the specifics of the activity.

In addition to the essential (mandatory) conditions, the employment contract may provide for conditions on probation, on non-disclosure of secrets protected by law (state, official, commercial and other), on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer, as well as other conditions that do not worsen the position of the employee in comparison with the requirements of documents containing labor law norms.

The terms of the employment contract can be changed only by agreement of the parties and in writing.

Employment contracts may be concluded:

For undefined period;
for a fixed period of not more than five years (fixed-term employment contract).

One of the most discussed problems in the adoption of the Labor Code of the Russian Federation was the problem of the possibility of concluding a fixed-term contract. It is believed that the right given to the employer to choose between a contract concluded for an indefinite period and a fixed-term employment contract significantly worsens the position of the employee. Article 57 of the Labor Code of the Russian Federation provides for a condition that makes such reasoning practically pointless: in the case of a fixed-term employment contract, it indicates the period of its validity and the circumstance (reason) that served as the basis for concluding a fixed-term contract.

In comparison with the norms of the Labor Code of the Russian Federation, the Labor Code of the Russian Federation significantly limited the ability of the employer to conclude fixed-term employment contracts with employees:

firstly, the period for which such an agreement can be concluded cannot exceed five years;
secondly, a fixed-term employment contract can only be concluded if the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation. At the same time, an employment contract concluded for a fixed period, in the absence of sufficient grounds for this established by an authorized body or court, is considered concluded for an indefinite period;
thirdly, if the term of its validity is not specified in the employment contract, then the contract is also considered concluded for an indefinite period;
fourthly, if none of the parties demanded the termination of a fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of this period, then again, the employment contract is considered concluded for an indefinite period. This means that even if at the end of the term of the employment contract the employer did not announce to the employee about his dismissal, the contract ceases to be urgent;
fifthly, Art. 58 of the Labor Code of the Russian Federation expressly prohibits the conclusion of fixed-term employment contracts in order to avoid granting the rights and guarantees provided for by employees with whom the contract is concluded for an indefinite period;
sixth, in Art. 59 of the Labor Code of the Russian Federation, there are cases in which the conclusion of a fixed-term employment contract is possible.

And although this list is not exhaustive, it still contains a reference to the fact that such agreements can be concluded in other cases, but only as provided for by federal laws. Thus, the legislator did not leave the decision of this issue at the mercy of the employer, which is a certain guarantee to the employee from the arbitrariness of managers with the authority to hire.

As a general rule, an employment contract may be concluded with persons who have reached the age of sixteen. In some cases, an employment contract may be concluded by persons who have reached the age of fifteen and fourteen years. In addition, in organizations of cinematography, theaters, theater and concert organizations, circuses, it is allowed to conclude an employment contract with persons under the age of fourteen. Article 64 of the Labor Code of the Russian Federation provides for certain guarantees to the employee when concluding an employment contract. For example, unreasonable refusal to conclude an employment contract is prohibited. It is not allowed any restriction of rights and establishment of advantages in employment depending on gender, race, skin color, nationality, language, origin, property, social and official position, place of residence, as well as other circumstances not related to the business qualities of the employee. The only exceptions are cases expressly provided for by federal law. In practice, the question often arises about the possibility of finding a job in Moscow for persons registered in the regions closest to Moscow. As can be seen from the analysis of the norms of the Labor Code of the Russian Federation, no restrictions on this matter have been established either in the Labor Code of the Russian Federation itself or in other federal laws. By the way, at the request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing. Refusal to conclude an employment contract can be appealed in court. Currently arbitrage practice on this issue exists.

For the first time, the Labor Code of the Russian Federation defines a list of documents required to be presented to an employer when applying for a job. According to Art. 65 of the Labor Code of the Russian Federation, such documents are:

Passport or other identity document;

Employment book, except for cases when the employment contract is concluded for the first time or the employee enters a part-time job;

Insurance certificate of state pension insurance;

Documents of military registration - for persons liable for military service and persons subject to conscription for military service;

A document on education, qualifications or the availability of special knowledge - when applying for a job that requires special knowledge or special training.

In some cases, regulatory legal acts may provide for the need to present additional documents.

As already noted, employment, in addition to concluding an employment contract, is formalized by an order (instruction) of the employer. The content of the order (instruction) must comply with the terms of the concluded employment contract.

The order (instruction) on hiring is announced to the employee against receipt within three days from the date of signing the employment contract. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).

When hiring, the employer is obliged to familiarize the employee with the internal labor regulations in force in the organization, other regulations related to the employee's labor function, and the collective agreement.

As an additional condition of the employment contract, the agreement of the parties may stipulate the testing of the employee in order to verify his compliance with the assigned work.

The test condition must be specified in the employment contract. The absence of a record of this means that the employee was hired without probation. In practice, there are situations when the employer, when hiring an employee, sets him a test condition, and nothing is said about this in the employment contract and in the order. Subsequently, when trying to fire an employee due to an unsatisfactory test result, the employer loses the case in court.

During the probation period, the provisions of the Labor Code of the Russian Federation and other regulatory legal acts containing labor law norms apply to the employee.

However, there are also categories of workers for whom probation not installed. This:

Persons applying for a job on a competitive basis to fill the relevant position;

Pregnant women;

Persons under the age of eighteen;

Persons who graduated from educational institutions of primary, secondary and higher vocational education and for the first time coming to work in the received specialty;

Persons elected to elective office for paid work;

Persons invited to work in the order of transfer from another employer as agreed between employers.

The test is not established in other cases provided for by the Labor Code of the Russian Federation, other federal laws and a collective agreement.

The probation period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies - six months. The period of the test does not include periods of temporary disability of the employee, as well as other periods when he was actually absent from work.

According to the results of the test, the employee either continues to work on a general basis, or leaves his job. In the second case, the employer is obliged to notify the employee in writing of dismissal no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee may appeal such a decision in court.

In case of termination of the employment contract on the specified basis, the severance pay is not paid to the employee.

If during the probationary period the employee comes to the conclusion that the job offered to him is not suitable for him, he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance.

Thus, in conclusion, it can be noted that labor relations between an employee and an employer arise on the basis of an employment contract, which in turn is an agreement between the parties on its main (essential) conditions. Employment contracts are concluded in writing in two copies and are kept by each of the parties. Changes to the terms of the contract can only be made in writing. In case of non-fulfillment of the terms of the contract by one of the parties, the other party may appeal the violated right to the commission for labor disputes or in court.

Termination of an employment contract

Before going directly to comparative analysis norms of the Labor Code of the Russian Federation and the Labor Code of the Russian Federation, it is necessary to understand the basic concepts that are encountered when considering this issue.

The concept of "termination of an employment contract" is the most general, including all the grounds for the termination of an employment contract, provided for by the Labor Code of the Russian Federation and other federal laws.

By "termination of an employment contract" is meant its termination at the initiative of one of the parties - the employee or the employer. The term "dismissal", used in many articles of the Labor Code of the Russian Federation, is associated with the presence or absence of the will of the parties to the terminated employment contract.

Chapter 13 "Termination of an employment contract" of the Labor Code of the Russian Federation establishes the grounds and procedure for terminating an employment contract.

Article 77 of the Labor Code of the Russian Federation sets out the general grounds for terminating an employment contract. Already here there are differences from Article 29 of the Labor Code of the Russian Federation, which regulated a similar issue. The fact is that the Labor Code of the Russian Federation provided an exhaustive list of grounds for terminating an employment contract, and the Labor Code of the Russian Federation, in addition to the general ones, provides for other grounds set forth in this Code and other federal laws. An example is the norms contained in Article 288 of the Labor Code of the Russian Federation. They provide for the termination of an employment contract with persons working part-time in the event of hiring an employee for whom this work will be the main one. Article 336 of the Labor Code of the Russian Federation sets out additional grounds for terminating an employment contract with teaching staff.

Comparing article 77 of the Labor Code of the Russian Federation and article 29 of the Labor Code of the Russian Federation, the following differences can be distinguished:

1) four new grounds have been added: the employee’s refusal to continue working due to a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75). The norm of the Labor Code of the Russian Federation assumed that when the owner of the enterprise changes, as well as its reorganization (merger, accession, separation, transformation), labor relations continue with the consent of the employee; termination in these cases of the employment contract (contract) at the initiative of the administration was possible only with a reduction in the number or staff of employees; the employee's refusal to be transferred to another job due to a state of health in accordance with a medical report (part two of article 72); circumstances beyond the control of the parties (art. 83); violation of the established rules for concluding an employment contract, if this violation excludes the possibility of continuing work (Article 84);

2) the conscription of an employee for military service or his assignment to alternative service is now among the circumstances beyond the control of the parties, and is regulated by Art. 83 of the Labor Code of the Russian Federation;

3) the basis for terminating the employment contract at the request of the trade union body is excluded. The ego is due to the general change in the role of trade union organizations in the field of personnel management of the organization;

4) such a ground as the entry into force of a court sentence by which the employee was sentenced (except for cases of probation and suspension of the execution of the sentence) to imprisonment, correctional labor outside the place of work, or to another punishment that precludes the possibility of continuing this work, is excluded. In accordance with the Labor Code of the Russian Federation, this ground is a special case of termination of the employment contract due to circumstances beyond the control of the parties;

5) The Labor Code of the Russian Federation, in contrast to the Labor Code of the Russian Federation, separately considers the grounds for terminating an employment contract in cases where the employee refuses to continue working due to a change in essential working conditions, as well as the employee’s refusal to transfer due to the employer’s relocation to another locality (paragraphs 7 and 9 article 77 of the Labor Code of the Russian Federation). The transfer of an employee to work in another locality, as a rule, involves a change in the essential terms of the employment contract. Paragraph 7 also applies to other cases of transfer - in the same organization and in the same locality. Should be paid Special attention on paragraph 9 of Art. 77 of the Labor Code of the Russian Federation (an employee's refusal to transfer due to the employer's relocation to another locality). The Labor Code of the Russian Federation does not explain what is meant by the relocation of an employer to another locality. In particular, it is not defined whether a shift should be considered such a movement. legal address organization (in another locality) or relocation is understood as the need for the actual relocation of the employee to another locality. By the way, a significant change in the terms of the employment contract can also take place when the employer moves within the boundaries of one locality(for example, for such a metropolis as Moscow). Thus, it seems necessary to clarify the concepts of "other locality" and "relocation of the employer".

Articles 78-84 of the Labor Code of the Russian Federation regulate the termination of an employment contract on separate grounds.

An attempt was made to detail the procedure for terminating a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation). Article 32 of the Labor Code of the Russian Federation regulated the termination of a fixed-term employment contract ahead of schedule at the request of the employee. This was possible in case of illness or disability of the employee, i.e. the occurrence of circumstances preventing the performance of work under an agreement (contract), violation by the administration of labor legislation, a collective or labor agreement (contract) and for other valid reasons.

Article 79 of the Labor Code of the Russian Federation establishes that in general case a fixed-term employment contract is terminated with the expiration of its validity. Moreover, the employee must be warned in writing about the due date at least three days before the dismissal. If a fixed-term employment contract is concluded for the duration of a certain work, then it is terminated upon completion of this work. An employment contract concluded for the duration of the performance of the duties of an absent employee is terminated with the release of this employee to work. An employment contract concluded for the duration of seasonal work is terminated after a certain season.

The procedure for terminating an employment contract at the initiative of an employee has been preserved. The main distinguishing feature of this order is still the need to notify the administration two weeks in advance. If the dismissal is associated with the inability to continue performing the labor function from a certain period (receipt in educational institution etc.), the employment contract must be terminated by this date. In addition, the employer is obliged to terminate the employment contract within the period specified in the employee's application in cases of established violation by the employer of laws and other regulatory legal acts containing labor law norms, the terms of a collective agreement, agreement or employment contract. If the employer does not object, then the employment contract may be terminated before the expiration of two weeks from the date the employee submits a letter of resignation. In this case, the reason for dismissal can be reclassified as termination of the contract by agreement of the parties. The employee has the right to withdraw the letter of resignation, and the contract will be considered not terminated, but only if workplace no other worker invited. After two weeks, the employee has the right to terminate the performance of the labor function. At the same time, the employer does not have the right to terminate the contract due to a gross violation by the employee of the rules of labor regulations (truancy).

Significant changes have been made by the legislator to the list of grounds under which an employment contract can be terminated at the initiative of the employer. Compared with the norms of the Labor Code of the Russian Federation, it is supplemented with five points:

change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);
adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its misuse or other damage to the property of the organization;
submission by the employee to the employer of false documents or knowingly false information when concluding an employment contract;
termination of access to state secrets, if the work performed requires such access;
cases stipulated by the employment contract with the head of the organization, members of the collegial executive body organizations.

Removed the basis under which an employee could be dismissed in case of absence from work for more than four consecutive months due to temporary incapacity for work, excluding maternity leave. Now dismissal is possible for health reasons and only with a medical certificate. Moreover, the dismissal in this case is carried out if it is impossible to transfer the employee with his consent to another job. Looking ahead, I would like to note that in Art. 83 of the Labor Code of the Russian Federation contains an almost similar norm, with the only difference being that it refers to the unconditional termination of labor relations in connection with the recognition of the employee as completely disabled in accordance with a medical report.

The basis was excluded when an employee could be dismissed in the event of the reinstatement of an employee who previously performed this work. This issue is regulated by Art. 79 of the Labor Code of the Russian Federation (termination of a fixed-term employment contract). It was clarified that the termination of the employment contract at the initiative of the employer can take place not only in the event of the liquidation of the organization, but also the termination of the activity by the employer - an individual. The concept of a single gross violation of labor duties by an employee is disclosed in more detail. Now it includes:

absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day). According to the Labor Code of the Russian Federation, absence from work for more than three hours in a row was equated to absenteeism;
appearance at work in a state of alcoholic, narcotic or other toxic intoxication. In Art. 33 of the Labor Code of the Russian Federation, this ground for terminating an employment contract was indicated as a separate one. In the Labor Code of the Russian Federation, only two words "or otherwise" were added, as a result of which the text of this paragraph became not entirely accurate: it turns out that both alcohol and drug intoxication are varieties of toxic intoxication;
disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties. This type gross violation is new - the Labor Code of the Russian Federation did not provide for the possibility of dismissal on this basis;
committing at the place of work theft (including small) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a body authorized to apply administrative penalties. This ground for terminating an employment contract is not fundamentally new - in Art. 33 of the Labor Code of the Russian Federation, it stood out as a separate one. The changes affected only the terminology: in the Labor Code of the Russian Federation, it was not about someone else's, but about state or public property;
violation by an employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created real threat occurrence of such consequences. There was no such basis in the Labor Code of the Russian Federation. Although, in fact, dismissals on this basis took place, as a rule, if the violation was committed, the employee was held criminally liable and dismissed from work by a court decision.

From Art. 254 Labor Code of the Russian Federation in Art. 81 of the Labor Code of the Russian Federation transferred three grounds for termination of an employment contract, which can be applied to only certain categories of workers. This:

the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;

commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties. The list of grounds when an employment contract can be terminated at the initiative of the employer, in the Labor Code of the Russian Federation (unlike the Labor Code of the Russian Federation) is not exhaustive - in accordance with paragraph 14 of Art. 81 an employment contract can also be terminated in other cases provided for by law (examples of such cases have already been given earlier).

The requirement according to which the dismissal of an employee due to the liquidation of an organization, reduction in the number or staff of employees is allowed if it is impossible to transfer the employee with his consent to another job, has been retained. In addition, the ban on the dismissal of an employee who is on vacation or during a period of temporary disability has been retained.

It has been clarified that the procedure for terminating employment contracts provided for in cases of liquidation of an organization applies to cases of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality.

Article 82 of the Labor Code of the Russian Federation establishes the procedure for the participation of trade union bodies in considering issues related to the dismissal of employees at the initiative of the employer. As already noted, the role of trade unions in managing the personnel of an organization in the Labor Code of the Russian Federation has been significantly revised in comparison with the Labor Code of the Russian Federation. This circumstance is also reflected in Art. 82 of the Labor Code of the Russian Federation.

In particular, it was established that in the event of liquidation or reduction in the number (staff) of employees, the employer is only obliged to inform the trade union body about the planned activities: in the general case - no later than two months, if the measures lead to mass layoffs - no later than than three months.

Criteria for mass layoffs should be defined in industry and (or) territorial agreements.

At the same time, the Labor Code of the Russian Federation does not define further actions employer, trade union organization, as well as the procedure for implementing the decision taken by the trade union body during the liquidation of the organization.

The employer is obliged to take into account the opinion of the trade union body if a trade union member is dismissed for the following reasons: a reduction in the number or staff of the organization's employees in case of insufficient qualification, confirmed by the results of certification, as well as in the event of repeated failure by the employee to fulfill labor duties without good reason, if he has a disciplinary sanction. The procedure for taking into account the opinion of the trade union body is regulated by Art. 373 of the Labor Code of the Russian Federation. In particular, taking into account the opinion of the trade union implies (in case of disagreement of the trade union with the dismissal) consultations with the employer with the obligatory execution of the relevant protocol. Regardless of the results of the consultations, the employer has the right to dismiss the employee within ten days after sending the draft dismissal order and copies of the necessary documents to the trade union (for the trade union to develop an opinion). The decision to dismiss can be appealed to the federal labor inspectorate and, of course, in court. It should be emphasized that the decision of the trade union must be motivated. An unmotivated opinion is not taken into account by the employer. The criteria for motivation of the Labor Code of the Russian Federation are not defined.

Note that the additional right trade union organizations still granted Art. 82 of the Labor Code of the Russian Federation is the right to send their representatives to the composition attestation commission(during certification, which may serve as a basis for the dismissal of employees).

Most of the provisions of Art. 83 of the Labor Code of the Russian Federation, which regulates the termination of an employment contract due to circumstances beyond the control of the parties, is not new - to one degree or another, the relevant grounds were provided for by several articles of the Labor Code of the Russian Federation.

These circumstances are:

conscription of an employee for military service or his direction to an alternative alternative civil service(previously a separate ground provided for in Article 29 of the Labor Code of the Russian Federation);
reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court;
non-election to office;
condemnation of the employee to a punishment that precludes the continuation of the previous work, in accordance with a court verdict that has entered into force;
recognition of an employee as completely disabled in accordance with a medical report;
death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as dead or missing;
the onset of emergency circumstances that prevent the continuation of labor relations. In order for a circumstance to be recognized as an emergency, it is necessary to have a decision of the authority state power.

The norms of Art. 84 of the Labor Code of the Russian Federation, which regulates the procedure for terminating an employment contract due to a violation established by law mandatory rules when concluding an employment contract.

There are only three possible violations of the rules:

conclusion of an employment contract in violation of a court verdict depriving a particular person of the right to occupy certain positions or engage in certain activities;
conclusion of an employment contract for the performance of work that is contraindicated for this person for health reasons in accordance with a medical report;
the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with federal law or other regulatory legal acts;
in other cases stipulated by federal law.

It is easy to see that in all three cases the conclusion of an employment contract is hardly possible without a certain insincerity on the part of the employee. It is difficult to assume that the worker does not know the verdict of the court and that he is in good faith mistaken about his physical condition or does not know that special education is necessary for the job he is applying for. However, Art. 83 of the Labor Code of the Russian Federation specifically stipulates that the termination of the employment contract in the above cases is carried out if it is impossible to transfer the employee with his written consent to another job available to the employer. In addition, the last part of Art. 83 of the Labor Code of the Russian Federation establishes the obligation of the employer to pay the employee severance pay in the amount of the average monthly salary, if the violation of the rules for concluding an employment contract was made through no fault of the employee.

And the last thing I would like to note, analyzing the norms of the Labor Code of the Russian Federation and the Labor Code of the Russian Federation. Article 135 of the Labor Code of the Russian Federation provided for disciplinary action dismissal for specific reasons. And here is Art. 192 of the Labor Code of the Russian Federation defines "dismissal on appropriate grounds" as a type of disciplinary sanction. It seems necessary to specifically state these grounds, using a reference norm, in order to avoid the ambiguous application of the mentioned type of disciplinary sanction.

Liability of the parties to the employment contract:

1. The concept of liability

Material liability under labor law can be defined as the obligation of one party to an employment relationship (employee or employer) to compensate for the damage caused by it to the other party by the failure to perform or improper performance by the party of the labor duties assigned to it.

Failure to perform or improper performance by the party of the employment contract of the obligations assigned to it, if this entailed damage, is the basis for liability. The party to the employment contract (employee, employer) that caused damage to the other party compensates for the damage in accordance with the norms of the Labor Code of the Russian Federation and other federal laws (Article 232 of the Labor Code of the Russian Federation).

2. Under what conditions does the material liability of the parties to the employment contract come?

Liability as a type of legal liability arises only if there are a number of mandatory conditions for legal liability. First of all, it is the presence material damage. Other mandatory conditions for the onset of material liability of a party to an employment contract are:

a) unlawfulness of the action (inaction) that caused the damage;

b) a causal relationship between the illegal act and material damage;

c) guilt in committing an unlawful action (inaction) (Article 233 of the Labor Code of the Russian Federation).

An exception is the liability of the employer for the delay in payment of wages (Article 236 of the Labor Code of the Russian Federation).

3. What should be understood as damage caused by a party to an employment contract?

Labor legislation does not provide a general definition of the concept of damage. Article 232 of the Labor Code of the Russian Federation, speaking of the liability of the parties to an employment contract, applies to them (the employee and the employer) the single term "damage compensation".

However, when it comes to specific rules for compensation for damage by the parties to an employment contract, the content of this concept in relation to the employee and the employer is not equivalent. As applied to the employer, it does not coincide with the concept of damage provided for by the Civil Code of the Russian Federation. In accordance with the Labor Code of the Russian Federation, the employer compensates the employee for both actual damage and lost profits (Articles 234, 235 of the Labor Code of the Russian Federation), i.e. losses; the employee, on the other hand, compensates the employer for only real (direct actual damage) (Article 238 of the Labor Code of the Russian Federation).

4. What is meant by direct actual damage?

The concept of direct actual damage is provided for by Art. 238 of the Labor Code of the Russian Federation. Direct actual damage is understood as a real decrease in the employer's cash property or deterioration in the condition of the specified property (including the property of third parties held by the employer, if the employer is responsible for its safety). As well as the need for the employer to incur costs or excessive payments for the acquisition or restoration of property.

Direct actual damage may include, for example, a shortage of monetary or property values, damage to materials and equipment, expenses for repairing damaged property, payments for forced absenteeism or downtime, the amount of the fine paid.

The obligation to compensate for direct actual damage arises for the employee both in cases where such damage is caused directly to the employer (for example, due to a shortage of valuables entrusted to him), and in cases where the damage is caused to other persons through the fault of the employee, and the employer, in accordance with current legislation obliged to pay for this damage. For example, if, as a result of unlawful actions of an employee in the performance of his job duties, he caused damage to the property of another organization.

Lost income (lost profit) cannot be recovered from the employee.

5. What are the similarities and differences between the liability of an employee under labor law and property liability citizens under civil law?

The liability of an employee under labor law has some similarities with the property liability of citizens under civil law. Both of these responsibilities are based on the obligation to compensate for the damage caused. However, between the material liability of an employee under labor law and property liability under civil law there are significant differences.

Unlike civil law, according to which the parties to property relations are, as a general rule, equal and any of them has the right to demand full compensation for the losses caused to it, the subjects of an employment relationship are in an unequal position in relation to each other.

In accordance with labor legislation, the employee, as a general rule, bears limited liability and compensates only for direct actual damage, while the employer is obliged to compensate the employee for the losses caused to him through his fault in full.
The norms of labor law regulating the grounds, limits and procedure for compensation for material damage are imperative. They are established by law and cannot be changed by agreement of the parties.

So, protecting the interests of economically more weak side- an employee, the Labor Code of the Russian Federation determines that, by agreement of the parties, the liability of the employer cannot be determined lower, and the liability of the employee to the employer is higher than provided for by the Labor Code of the Russian Federation (part 1 of article 235, article 241) or other federal laws. Only within the specified limits, the parties have the right to establish a specific amount of liability. According to the norms of civil law, the parties have the right to determine the grounds, limits and conditions of property liability.

6. In what cases does the employer's liability to the employee arise?

The material liability of the employer to the employee arises in the event of non-fulfillment or improper performance duties assigned to him, if this entailed the infliction of property damage to the employee.

The Labor Code of the Russian Federation distinguishes three groups of offenses on the part of the employer, which entail his obligation to compensate employees for the damage caused to them as a result of these offenses. These include:

Illegal deprivation of an employee of the opportunity to work (Article 234 of the Labor Code of the Russian Federation);

Causing damage to the property of an employee (Article 235 of the Labor Code of the Russian Federation);

Delay in payment of wages to the employee, vacation pay, payments upon dismissal and other payments due to the employee (Article 236 of the Labor Code of the Russian Federation).

7. In what cases is an employee deprived of the opportunity to work entitled to claim compensation for the damage caused to him?

Illegally depriving an employee of the opportunity to work is the most serious offense. This is not only a failure to fulfill the obligation to provide work, enshrined in the Labor Code, conditioned by an employment contract, but also a violation of the constitutional right of an employee to freely dispose of his abilities for work, choose the type of activity and profession. In this regard, the legislator obliges the employer to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work.

Such an obligation arises if earnings are not received as a result of:

Illegal removal of an employee from work, his dismissal or transfer to another job;

The refusal of the employer to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector on the reinstatement of the employee on previous work;

Delays by the employer of issuance to the employee work book, entering into the work book an incorrect or inappropriate wording of the reason for the dismissal of an employee;

In other cases stipulated by federal laws and the collective agreement.

The damage incurred in connection with the illegal deprivation of the employee of the opportunity to work is expressed in the loss of earnings, which the employee has lost in whole or in part due to illegal dismissal or transfer, delay in issuing a work book.

8. In what cases is an employee released from liability?

In accordance with Art. 239 of the Labor Code of the Russian Federation, the employee is exempted from liability in cases where the damage is caused due to force majeure, normal economic risk, emergency or necessary defense, or failure by the employer to ensure proper conditions for the storage of property entrusted to the employee.

Labor Code The Russian Federation also provides for the right of the employer to fully or partially refuse to recover damages from the guilty employee, taking into account the specific circumstances under which the damage was caused (Article 240).

9. What types of material liability of an employee to the employer are provided for by the Labor Code of the Russian Federation?

The Labor Code of the Russian Federation provides for two types of material liability of an employee for damage caused to the employer: limited and full liability.

Limited liability is the main type of material liability of an employee for damage caused to the employer. It consists in the obligation of the employee to compensate the direct actual damage caused to the employer, but not more than the maximum limit established by law, determined in relation to the amount of wages received by him. In accordance with Art. 241 of the Labor Code of the Russian Federation, such a maximum limit is the average monthly earnings of an employee.

The use of limited material liability within the limits of the average monthly earnings means that if the amount of damage exceeds the average monthly earnings of the employee, he is obliged to compensate only that part of it that is equal to his average monthly earnings. In other words, the employee is obliged to fully compensate for the direct actual damage caused to the employer, only in cases where this damage does not exceed his average monthly earnings.

The rule on limiting liability to the limits of the average monthly earnings is applied in all cases, except for those in respect of which the Labor Code of the Russian Federation or other federal law directly establishes a higher liability, for example, full liability (Article 242 of the Labor Code of the Russian Federation).

Full material liability consists in the obligation of the employee to compensate the direct actual damage caused to the employer in full.

Anton Garanin

Information Agency "Financial Lawyer"

Until 1992, when applying for a job in Russia, there was an oral form of an employment contract, when the employee performed his direct duties, and the employer simply made an entry about this in the work book. After the entry into force of the Law of the Russian Federation No. 3543-1 of September 25, 1992, the situation changed, and the state obliged managers to draw up contracts in writing, and later this was reinforced by the norms of Art. 67 of the Labor Code of the Russian Federation, which states that an agreement not concluded in writing is considered valid if the employee has started work with the knowledge or on behalf of the director.

Oral transactions are allowed only by the Civil Code, but in labor relations they are unacceptable for several reasons:

Based on the employment contract, an order for employment is drawn up.
The agreement is created in duplicate: one remains with the employer, and the second with the employee. This allows you to establish the fact of the existence of labor relations in litigation at the initiative of the employee, because document can be used as evidence.
The employment contract determines not only the term of work, but also the conditions: ordinary, at night, harmful. Based on this, wages are calculated, because. under difficult conditions, the employee is entitled to additional compensation and surcharges.

In essence, employment contracts are divided into several types:

Urgent: with a predetermined period during which the employee will perform his functions in the enterprise. For example, seasonal work, contracts, etc. The duration of such relations cannot exceed 5 years, after which the document must be renewed or extended, otherwise it will be considered automatically terminated.
Perpetual: They do not specify a specific period of work. As a rule, such documents are drawn up when applying for a job on a permanent basis or part-time.
With an unspecified deadline: such a document is usually issued in cases where it is necessary to perform a certain amount of work, and their temporary nature is indicated in the Charter of the organization.
The applicant applies to the organization for employment, providing the necessary documents: a diploma of education, a work book (if any), as well as the job application itself.
The employer enters into an employment agreement with the employee. If a probationary period is provided for it, this must be reflected in the document.
Next, the manager issues an order for employment and gives it to the employee for signature, then a personal card is issued for him, and the corresponding entries are made in the work book.

general information

As mentioned earlier, the execution of an employment contract when applying for a job - required condition, and the procedure itself looks like this:

As for the employment contract, it can be concluded in a simple written form, because. there is no unified form for it. It should contain the following information:

Data on the employee and employer (full name, name of the organization).
The position for which the employee is accepted, as well as the date of commencement of the performance of labor duties.
Rights and obligations of the parties.
Terms of payment.
Working hours and rest time.
Guarantees and compensations.
Responsibility of the parties.
Conditions for terminating the contract.

Before processing all documents, the employee must be familiar with job description, according to which he will have to fulfill his duties, tk. this will allow him to have a clear idea of the work being done.

Types of employment contracts

Employment contracts are classified according to the terms and nature of the work. Term agreements, in turn, are divided into several types:

With a certain period of validity. Relevant for elected positions: deputies, governors, rectors educational institutions. It indicates the exact date of the end of his term, after which he can be re-arranged through re-election.
With a relatively definite expiration date. As a rule, such contracts are drawn up in organizations specially created to perform specific work with a fixed scope: for example, the headquarters of the election campaign.
Urgent: issued with seasonal workers or in cases where required temporary substitution absent employee.

Also, a fixed-term employment agreement may be concluded in certain situations:

if urgent emergency work is required;
from separate categories workers: artists, students, sailors working in the Far North, with part-time workers.

According to the nature of the employment relationship, contracts are divided into two types:

For basic work. In this case, it is understood that the employee will perform official duties on an ongoing basis, and his work book will be stored in the personnel department of the enterprise.
For collaborative work. This type of activity is possible in free time from the main work, not exceeding half the working day. Remuneration is made on a general basis. The combination, in turn, is also divided into two types: internal, when an employee works in different positions in one company, and external, when he works in two organizations.

What are the contracts depending on the conditions of work:

For work under normal conditions: the length of the working day in this case is normalized, labor activity at night or at hazardous enterprises is not provided.
To work at night. A shift schedule can also be included in this category, however, such an agreement by law cannot be concluded with minors and pregnant women, because. they are provided with favorable working conditions.
To work in dangerous or harmful conditions. The list of such works is established by Decree of the Government of the Russian Federation of February 25, 2000 No. 162. This includes foundries, welding, boiler houses, metalworking and other similar enterprises.
For work in special climatic conditions. For example, in the Far North or equivalent areas.

In addition to the above types of contracts, there is a separate type - the contract. It refers to urgent and is usually concluded with military personnel, employees of the Police and other law enforcement agencies when hiring. Its duration is up to 5 years, but at the initial stage, the service life is limited to three years. Subsequently, the contract can be re-executed, and if this does not happen, it is considered automatically terminated based on the expiration of its validity. What is the difference between a regular employment agreement and a contract:

The contract can be both urgent and indefinite, the contract is drawn up strictly for a certain period.
Under the contract, the manager may terminate the employment relationship ahead of schedule if there are additional grounds provided for by him and special regulatory legal acts, while the dismissal of those employed under the contract is carried out only in accordance with the norms of the Labor Code of the Russian Federation.

Also, a distinctive feature of the contract from a simple contract is that it is impossible to force an employee to quit of his own free will, because. Termination requires at least one of the following conditions to be met:

expiration date;
mutual consent of the parties;
failure to comply with the obligations of one of the parties.

When is the oral form allowed?

According to the law, an employment contract is considered executed from the moment the employee begins to perform his labor functions, subject to notification of the management and the availability of permission. The employer is obliged to draw up a written agreement with the employee within three days after he has taken up his duties, otherwise the absence of a document will be considered a violation of labor laws.

If a civil law contract was originally drawn up, but subsequently the relationship was recognized as labor, the agreement must also be drawn up within three days.

Thus, the oral form of an employment contract is not allowed in any case, and the differences between a written document and a transaction under civil law are as follows:

a civil law contract implies the presence of a customer and a contractor, and a labor contract implies an employee and an employer;
in the first case, it implies the performance of certain work within a specific timeframe, while labor can also be concluded for an indefinite period;
in civil law relations, it is not the rules for the performance of work that are important, but the end result, and in labor relations it is necessary to follow the job description;
a citizen employed under a TD undertakes to comply with the working time schedule established in the organization, and when concluding a GPA, the performer has the right to independently regulate his work schedule;
the manager who issued the TD must independently provide the employee necessary materials and conditions, and when signing the GPA, the contractor does this himself;
according to TD, a number of guarantees and compensations are provided: payment for vacation and sick leave, payments upon dismissal, a minimum vacation of 28 days, etc. those employed under the GPA are guaranteed only the transfer of hours worked to the general insurance period, as well as the transfer of contributions to the MHIF and the PFR.

Responsibility for violation of labor legislation for the employer also arises if he issued an order for employment, but did not conclude an employment contract with the employee, because. this is considered a violation. The penalty is provided for in Art. 5.27 and 5.27.1 of the Code of Administrative Offenses of the Russian Federation, and the sanctions depend on the form of activity (legal or natural person) and the severity of the offense: it is possible to impose an administrative fine, disqualification for a certain period, warning.

Good evening!

The employer is obliged to conclude an employment contract in writing with each person hired.

All contracts are concluded in compliance with all mandatory details and conditions provided for in Article 57 of the Labor Code of the Russian Federation (discussed in section 1.1. of this book), and are certified by the signatures of the parties.

The conclusion of an employment contract provides for the following procedure for its execution:

1) the employment contract is concluded in writing;

2) is drawn up in two copies, each of which is signed by the parties;

3) one copy of the employment contract is transferred to the employee, the other is kept by the employer.

Moreover, 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.

On the part of the employer, the employment contract is signed by the employer himself or by the person exercising the rights and obligations of the employer in labor relations. The right to sign employment contracts for persons exercising the rights and obligations of the employer in labor relations should be included in the scope of their competence by the relevant local regulations, employment contract, job description, and so on.

In all cases, the employer is responsible for the proper implementation of the procedure for concluding an employment contract. In case of violation of the mandatory rules established by the Labor Code of the Russian Federation and other federal laws when concluding an employment contract, if this violation excludes the possibility of continuing work, the employment contract is subject to termination under paragraph 11 of Article 77 of the Labor Code of the Russian Federation.

"Labor contract, not executed in writing, is considered concluded if the employee started work with the knowledge or on behalf of the employer or his representative. When the employee is actually admitted to work the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date of the actual admission of the employee to work. (Article 67 of the Labor Code of the Russian Federation).

After the conclusion of an employment contract, a citizen becomes an employee, and an organization represented by the administration becomes an employer, in addition, an individual can also act as an employer.

An employment contract is the basis for issuing an order (instruction) of the employer on employment. At the same time, the order (instruction) on hiring does not replace the employment contract, but is an internal administrative document issued by the employer unilaterally.

The order (instruction) of the employer on employment 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).

The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract. When issuing an order, the name of the structural unit, position, probationary period (in the event that a test is established for the employee when hiring), as well as the conditions for hiring and the nature of the upcoming work (in the order of transfer from another employer, part-time, to replace a temporarily absent employee, to perform certain work, etc.).

Documentation of labor relations when hiring an employee is not limited to drawing up an employment contract and issuing an order (instruction).

Based on the order (instruction), an entry is made in the work book - the basis for hiring, corresponding to the information specified in the order.

An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and by this agreement, to pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function determined by this agreement, to comply with the internal labor regulations applicable to this employer.

(part one as amended by Federal Law No. 90-FZ of 30.06.2006)

The parties to an employment contract are the employer and the employee.

Article 57. Content of an employment contract

The employment contract specifies:

surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract;

information about the documents proving the identity of the employee and the employer - an individual;

taxpayer identification number (for employers, except for employers - individuals who are not individual entrepreneurs);

information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority;

place and date of conclusion of the employment contract.

The following conditions are mandatory for inclusion in an employment contract:

place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the place of work indicating the separate structural unit and its location;

labor function (work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; a specific type of work assigned to the employee). If in accordance with this Code, other federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the name of these positions, professions or specialties and qualification requirements they must comply with the names and requirements specified in the qualification reference books approved in the manner established by the Government Russian Federation;

the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the term of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;

terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);

the mode of working time and rest time (if for this employee it differs from the general rules in force for this employer);

compensation for hard work and work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace;

conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);

a condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;

other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.

If, when concluding an employment contract, it did not include any information and (or) conditions from among those provided for in parts one and two of this article, then this is not a basis for recognizing the employment contract as not concluded or terminating it. The employment contract must be supplemented with missing information and (or) conditions. In this case, the missing information is entered directly into the text of the employment contract, and the missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties, concluded in writing, which are an integral part of the employment contract.

The employment contract may provide additional terms that do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, in particular:

on the specification of the place of work (indicating the structural unit and its location) and (or) on the workplace;

about the test;

on non-disclosure of legally protected secrets (state, official, commercial and other);

on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;

on the types and conditions of additional employee insurance;

on improving the social and living conditions of the employee and members of his family;

on clarifying, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms.

By agreement of the parties, the employment contract may also include the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and the employer arising from the terms of the collective agreement, agreements . The failure to include in the employment contract any of the specified rights and (or) obligations of the employee and the employer cannot be considered as a refusal to exercise these rights or fulfill these obligations.

Article 58. Term of an employment contract

Employment contracts may be concluded:

1) for an indefinite period;

2) for a fixed period of not more than five years (fixed-term employment contract), unless another period is established by this Code and other federal laws.

A fixed-term employment contract is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its performance, namely in the cases provided for by paragraph one of Article 59 of this Code. In the cases provided for by the second part of Article 59 of this Code, a fixed-term employment contract may be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be done and the conditions for its performance.

(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)

If the employment contract does not specify the term of its validity, then the contract is considered concluded for an indefinite period.

In the event that neither of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the urgent nature of the employment contract becomes invalid and the employment contract is considered concluded for an indefinite period.

An employment contract concluded for a fixed period in the absence of sufficient grounds established by the court is considered to be concluded for an indefinite period.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

It is prohibited to conclude fixed-term employment contracts in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

Article 59. Fixed-term employment contract

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

A fixed-term employment contract is:

for the duration of the performance of the duties of an absent employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work is retained;

for the duration of temporary (up to two months) works;

to perform seasonal work, when due to natural conditions work can be done only during a certain period (season);

with persons sent to work abroad;

for work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided;

with persons entering work in organizations created for a known period or to perform a known work;

with persons hired to perform a known work in cases where its completion cannot be determined by a specific date;

to perform work directly related to the internship and professional training of the employee;

in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in public authorities and bodies local government, in political parties and other public associations;

with persons sent by the bodies of the employment service to work of a temporary nature and public works;

with citizens sent for alternative civilian service;

By agreement of the parties, a fixed-term employment contract may be concluded:

with persons coming to work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail and consumer services - 20 people);

with pensioners entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;

with persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work;

to carry out urgent work to prevent catastrophes, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

with persons elected by competition to fill the relevant position, held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;

from creative workers mass media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these employees, approved by the Government of the Russian Federation, taking into account opinions of the Russian tripartite commission for the regulation of social and labor relations;

(as amended by Federal Law No. 13-FZ of February 28, 2008)

with heads, deputy heads and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership;

with persons studying full-time;

with crew members sea vessels, inland navigation vessels and mixed (river-sea) navigation vessels registered in the Russian International Register of Vessels;

(paragraph introduced by Federal Law No. 305-FZ of November 7, 2011)

with persons entering a part-time job;

in other cases provided for by this Code or other federal laws.

Article 60

It is prohibited to require an employee to perform work not stipulated by an employment contract, except as provided for by this Code and other federal laws.

Article 60.1. Part-time work

The employee has the right to conclude employment contracts on the performance of other regular paid work with the same employer during his free time from his main job ( internal combination) and (or) from another employer (external part-time job).

Features of labor regulation of persons working part-time are determined by Chapter 44 of this Code.

Article 60.2. Combination of professions (positions). Expansion of service areas, increase in the volume of work. Fulfillment of the duties of a temporarily absent employee without release from work specified in the employment contract

(Introduced by Federal Law No. 90-FZ of June 30, 2006)

With the written consent of the employee, he may be entrusted with the performance during the established duration of the working day (shift), along with the work determined by the employment contract, additional work in another or the same profession (position) for additional payment (Article 151 of this Code).

Additional work assigned to an employee in another profession (position) may be carried out by combining professions (positions). Additional work assigned to an employee in the same profession (position) can be carried out by expanding service areas, increasing the volume of work. In order to fulfill the duties of a temporarily absent employee without being released from work specified in the employment contract, the employee may be entrusted with additional work both in another profession and in the same profession (position).

The period during which the employee will perform additional work, its content and volume are established by the employer with the written consent of the employee.

The employee has the right to early refuse to perform additional work, and the employer - to cancel the order to perform it ahead of schedule, notifying the other party in writing no later than three working days.

Article 61. Entry into force of an employment contract

An employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

The employee is obliged to start performing labor duties from the day specified in the employment contract.

If the employment contract does not specify the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract.

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of the employment contract does not deprive the employee of the right to receive security under mandatory social insurance upon the occurrence of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation.

(Part four as amended by Federal Law No. 90-FZ of June 30, 2006)

Article 62. Issuance of copies of documents related to work

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

Upon a written application of the employee, the employer is obliged, no later than three working days from the date of submission of this application, to issue to the employee copies of documents related to work (copies of the order for employment, orders for transfers to another job, order for dismissal from work; extracts from the work book; information about wages, on accrued and actually paid insurance premiums for mandatory pension insurance, on the period of work with this employer, and more). Copies of documents related to work must be duly certified and provided to the employee free of charge.

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