What you need to know about the labor rights of each employee
After the publication of the article “Fighting for my rights ...”, many IT specialists wrote to me, which, frankly, was a pleasant surprise. But, in addition to inspiring words of support and advice, habrayuzer also shared their similar situations in which their labor rights were violated. The situations are very different: from non-payment of wages to non-execution in the staff of the company. But they were all similar in one thing: they happened and often ended in failure because of the low legal literacy of workers in labor rights issues. Here is just one example of such a situation:
Therefore, we had an idea * on the basis of real stories of labor conflicts to collect tips and recommendations on how to behave, what to look for when conducting work. We are planning to make a series of articles on labor rights. The first article is devoted to issues of placement and dismissal from work. The review itself says many well-known and obvious things, but, as practice shows, it is precisely on such “obvious” things that mistakes are often made when solving labor issues. We hope that this article will help in the future to avoid possible troubles at work.
Entering into adulthood, i.e. for the first time getting a normal permanent job, it is necessary, first of all, to get acquainted with the Labor Code . Employees themselves should watch over its observance: no one else needs this. Know the basic provisions of the TC is vital. This will help avoid many possible mistakes.
Some people think that employers and employees are one big family. This is not true, unless you are employed in your dad's company. Labor disputes between the employee and the employer happen too often to leave them to chance. It is necessary to make it a rule, to get your hands on and keep documents and materials that regulate your work in one way or another, and record personal conversations with your superiors on a dictaphone. This does not mean that you need to record all labor activities from obtaining a technical assignment to sending a specific commit, but when you discuss with your employer your salary or changes in your working conditions, such a record should be. It should be understood that the verbal promises of the employer, as well as verbal instructions, are worth nothing, and it will be impossible to challenge or prove them in court. And if the employment contract stipulates that you should be in the office from 9:00 to 18:00, and your employer verbally allowed to come to work by 12:00, then the court argument will be what is written in the document.
Discussion of working conditions usually occurs at the interview. Therefore, it is logical to clarify important points on it, namely:
Since the discussion will be held verbally, it is useful to record it on a voice recorder. Recording a conversation is useful if later the employer refuses to enter into an employment contract with you or offers you to sign an employment contract that includes completely different conditions.
When applying for a job, you must sign an employment contract. By law, the employment relationship with your employer begins at the time you actually start work, even if the employment contract is not signed. But, in the event of a trial, in the absence of an employment contract, the burden of proof of employment will be yours. And to prove the relationship will not be easy. The employment contract governs most of your employment relationship with your employer, so this document must be taken very seriously.
An employment contract is not a license agreement, therefore, before signing it, it is necessary to read your employment contract and make sure that everything that was discussed and promised at the interview is included in it in full and without distortion. If the contract contains references to other local regulatory acts, then it is necessary to require their submission (not only for familiarization, but also in the form of a certified copy), or to require that the provisions of the local regulatory act are included in the employment contract. Otherwise, you risk getting the cat in the bag. After signing, you must get the original contract of employment, in any case not a copy.
Another important point. The employment contract must be signed 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 ). Therefore, if you have been working in a new place for a month already, and the employment contract with you is still not signed, there is a lot to think about. Well, it's better, of course, to sign it before going to work.
Particular attention should be paid to the job list. It should be spelled out in detail and not leave room for maneuver. There should not be any "etc.", "etc.", "etc.", "etc.". Otherwise, the employer will be able to interpret the list of your duties as widely as he likes. And as you may have guessed, you need to require a certified copy of your job description from the employer.
Practically in all companies, employees undergo a probationary period in order to verify its compliance with the work assigned. This should be reflected in the employment contract. If this is not the case, it is considered that the employee is hired without test. The probationary period lasts no more than 3 months for ordinary workers and no more than 6 months for managers. If a longer period is prescribed in the contract, it is still considered to be completed after three months have passed since the start of work. Those. an employee cannot be dismissed due to an unsatisfactory test result after four months from the beginning of work, even if such a period of testing is established by the employment contract. A nice bonus for students: an employer cannot set up a probationary period for a graduate when they first get a job after graduation. Even if the graduate was accepted for a probationary period, the employer is not entitled to dismiss him due to the failure of the probationary period.
It is when you apply for a new job that virtually all of your employment relationship with your employer is legally secured, so it is at this stage that you need to protect yourself as much as possible from possible violations by your employer in the future.
In Hollywood films, any worker at the whim of the authorities can be instantly fired with one phrase. Fortunately, the Russian Labor Code does not yet provide such opportunities to the employer. Often, the employer, without having legal grounds for dismissing an employee in a short period of time and without compensation, tries in every way to force the employee to write a statement “on his own will”. Many employees believe that this is a standard procedure for dismissal initiated by the employer. This is not true. The employment contract may be terminated by the employer in the following cases:
1. liquidation of the organization or termination of an individual entrepreneur;
2. reduction of the number or staff of the organization, individual entrepreneur;
In these cases, the employer must at least two months prior to the dismissal in writing to sign notify the employee of the planned closure / reduction (Article 180 of the Labor Code of the Russian Federation), ensure payment of termination benefits (Article 178 of the Labor Code of the Russian Federation), etc.
3. inconsistencies of the employee's position or work performed due to insufficient qualifications, confirmed by the results of certification;
For this, at a minimum, certification of workplaces should be carried out and there should be clear calculation parameters that need to be met. For example, certification of the workplace suggests that an employee must play one solitaire in three minutes. If he does not have time, then he can be fired. In this case, the immediate superior must stand with a stopwatch and measure. If there is a trade union, then with the participation of the trade union, which will check that all measurements are taken without deception.
There is also a list of job duties, which states what the employee should do. If the worker does not do this, they can fire him.
4. repeated non-execution by the employee without valid excuse of labor duties, if he has a disciplinary action;
Good reasons for non-performance of work duties include illness, burial, force majeure, etc.
Disciplinary sanctions are applied for non-fulfillment or improper performance by the employee of his duties ( Art. 192 of the Labor Code of the Russian Federation ). In this case, the obligations must be fixed either in the employment contract, or in the job description, or in the local regulations of the employer. And each employee must be familiar with them under the signature. When reading these documents, you should pay attention to the fact that the list of official duties was:
Otherwise, the employer will be able to interpret the list of your duties as widely as he likes.
5. for gross violation of employment duties:
These are the main points on which the employer can dismiss you from work. The bad mood of the boss, the economic crisis, the undivided feelings of the employer can not be grounds for termination of the employment contract and dismissal of the employee.
In our time, labor relations are so diverse, and labor conflicts are so sophisticated that it is impossible to give any universal recipes for all occasions. Nevertheless, we will try to give some tips:
1. In any incomprehensible [labor] situation, read the Labor Code.
Your rights need to know and understand when they are violated. As they say, who is warned, he is armed.
2. Request, collect, store documents regulating labor activity.
In this sense, the employer is in a better position: all the necessary documentation is stored from him initially, and legally protected from any unlawful attacks by the employee :) Therefore, the workers themselves are vulnerable, who are in a vulnerable position due to lack of information and the inability to back up position links to documents.
3. Make demands and defend your rights more effectively collectively.
As a rule, the employees of one company have similar working conditions. Therefore, it is logical that the labor problems of one employee may also confront his colleagues. The requirements put forward by the team always make a greater impression on the employer than the same requirements put forward by one employee.
The second article will be devoted to wages: where it comes from, how it is charged and what to do with it.
* In addition to writing articles, we want to try to do a little research in order to understand what kind of violations IT-students most often suffer. We plan to interview those who are in one way or another involved in IT and whose labor rights have been violated. Therefore, we, the trade union of workers in the IT sphere, appeal to the Habrasoobshchestvo : if you were not paid salary , if you were illegally fired, if you received a “black” salary - in general, if your rights were violated in one way or another, share with us by this! It would be great if you agreed to meet in person and talk - give a short interview. All contacts are listed in the profile. Thank you in advance!
Andrey: I had exactly the same situation with the bankruptcy of the office, now I can already see where I did wrong. We were also fed "breakfasts", or, as we called them, "micropayments", when the term is postponed for a week, then another week. In the end, they said they were bankrupt. Also offered to write an application for leave without pay for 3 months. This is the main condition for receiving the current sn. Only we were paid not all sn. The balance should have been paid under a contract with the head office of the United States. What was my mistake:
1) I wrote a letter of resignation
2) I wrote an application for leave without saving zp
3) believed that the head office will pay the debt
')
This all became clear after the trial. Under the contract was a period of six months, when they must pay the remnants of the RFP. When it became clear that I would not get anything, they went to court. The court found it unproven that we actually worked during the fictitious leave.
Therefore, we had an idea * on the basis of real stories of labor conflicts to collect tips and recommendations on how to behave, what to look for when conducting work. We are planning to make a series of articles on labor rights. The first article is devoted to issues of placement and dismissal from work. The review itself says many well-known and obvious things, but, as practice shows, it is precisely on such “obvious” things that mistakes are often made when solving labor issues. We hope that this article will help in the future to avoid possible troubles at work.
Entering into adulthood ...
Entering into adulthood, i.e. for the first time getting a normal permanent job, it is necessary, first of all, to get acquainted with the Labor Code . Employees themselves should watch over its observance: no one else needs this. Know the basic provisions of the TC is vital. This will help avoid many possible mistakes.
NB! No employment contract may contain conditions that limit the rights or reduce the level of guarantees of workers compared with the established labor laws. If such conditions are included in the employment contract, they are not applicable ( Article 9 of the Labor Code of the Russian Federation ). Thus, the Labor Code guarantees and regulates the basic rights of the employee, regardless of the fantasy and legal initiatives of the employer.
What you need to remember when applying for a job.
I worked in a company, then they decided to bankrupt her, and from the new year we were already working in a new one. I signed the application for dismissal from the previous firm, but I was never given a signature on employment. And then the delay in s \ n. In general, I decided to quit myself. But, since there was a move to another office, I was not calculated, arguing that there is no accountant. Later I came on the appointed day, but again there was no accountant =) In general, they owe me 50k. W \ n all the time paid in envelopes. And, apparently, I was not decorated. I even could not take the documents.
Trust but ...
Some people think that employers and employees are one big family. This is not true, unless you are employed in your dad's company. Labor disputes between the employee and the employer happen too often to leave them to chance. It is necessary to make it a rule, to get your hands on and keep documents and materials that regulate your work in one way or another, and record personal conversations with your superiors on a dictaphone. This does not mean that you need to record all labor activities from obtaining a technical assignment to sending a specific commit, but when you discuss with your employer your salary or changes in your working conditions, such a record should be. It should be understood that the verbal promises of the employer, as well as verbal instructions, are worth nothing, and it will be impossible to challenge or prove them in court. And if the employment contract stipulates that you should be in the office from 9:00 to 18:00, and your employer verbally allowed to come to work by 12:00, then the court argument will be what is written in the document.
Interview
Discussion of working conditions usually occurs at the interview. Therefore, it is logical to clarify important points on it, namely:
- wage conditions; if part of your salary will be a bonus, ask what the conditions of its payment are, in which cases the premium may not be paid, whether it happens under objective circumstances or by decision of the manager, whether salary is paid “officially” or “in an envelope”
- working time, start and finish time.
- your duties, a detailed list. Also ask the employer for familiarization with local regulations in force in the organization. It is especially important to familiarize yourself with the provisions on bonuses and internal labor regulations.
Since the discussion will be held verbally, it is useful to record it on a voice recorder. Recording a conversation is useful if later the employer refuses to enter into an employment contract with you or offers you to sign an employment contract that includes completely different conditions.
Employment contract
When applying for a job, you must sign an employment contract. By law, the employment relationship with your employer begins at the time you actually start work, even if the employment contract is not signed. But, in the event of a trial, in the absence of an employment contract, the burden of proof of employment will be yours. And to prove the relationship will not be easy. The employment contract governs most of your employment relationship with your employer, so this document must be taken very seriously.
An employment contract is not a license agreement, therefore, before signing it, it is necessary to read your employment contract and make sure that everything that was discussed and promised at the interview is included in it in full and without distortion. If the contract contains references to other local regulatory acts, then it is necessary to require their submission (not only for familiarization, but also in the form of a certified copy), or to require that the provisions of the local regulatory act are included in the employment contract. Otherwise, you risk getting the cat in the bag. After signing, you must get the original contract of employment, in any case not a copy.
Another important point. The employment contract must be signed 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 ). Therefore, if you have been working in a new place for a month already, and the employment contract with you is still not signed, there is a lot to think about. Well, it's better, of course, to sign it before going to work.
Particular attention should be paid to the job list. It should be spelled out in detail and not leave room for maneuver. There should not be any "etc.", "etc.", "etc.", "etc.". Otherwise, the employer will be able to interpret the list of your duties as widely as he likes. And as you may have guessed, you need to require a certified copy of your job description from the employer.
Probation
Practically in all companies, employees undergo a probationary period in order to verify its compliance with the work assigned. This should be reflected in the employment contract. If this is not the case, it is considered that the employee is hired without test. The probationary period lasts no more than 3 months for ordinary workers and no more than 6 months for managers. If a longer period is prescribed in the contract, it is still considered to be completed after three months have passed since the start of work. Those. an employee cannot be dismissed due to an unsatisfactory test result after four months from the beginning of work, even if such a period of testing is established by the employment contract. A nice bonus for students: an employer cannot set up a probationary period for a graduate when they first get a job after graduation. Even if the graduate was accepted for a probationary period, the employer is not entitled to dismiss him due to the failure of the probationary period.
It is when you apply for a new job that virtually all of your employment relationship with your employer is legally secured, so it is at this stage that you need to protect yourself as much as possible from possible violations by your employer in the future.
What can they fire?
In Hollywood films, any worker at the whim of the authorities can be instantly fired with one phrase. Fortunately, the Russian Labor Code does not yet provide such opportunities to the employer. Often, the employer, without having legal grounds for dismissing an employee in a short period of time and without compensation, tries in every way to force the employee to write a statement “on his own will”. Many employees believe that this is a standard procedure for dismissal initiated by the employer. This is not true. The employment contract may be terminated by the employer in the following cases:
1. liquidation of the organization or termination of an individual entrepreneur;
2. reduction of the number or staff of the organization, individual entrepreneur;
In these cases, the employer must at least two months prior to the dismissal in writing to sign notify the employee of the planned closure / reduction (Article 180 of the Labor Code of the Russian Federation), ensure payment of termination benefits (Article 178 of the Labor Code of the Russian Federation), etc.
3. inconsistencies of the employee's position or work performed due to insufficient qualifications, confirmed by the results of certification;
For this, at a minimum, certification of workplaces should be carried out and there should be clear calculation parameters that need to be met. For example, certification of the workplace suggests that an employee must play one solitaire in three minutes. If he does not have time, then he can be fired. In this case, the immediate superior must stand with a stopwatch and measure. If there is a trade union, then with the participation of the trade union, which will check that all measurements are taken without deception.
There is also a list of job duties, which states what the employee should do. If the worker does not do this, they can fire him.
4. repeated non-execution by the employee without valid excuse of labor duties, if he has a disciplinary action;
Good reasons for non-performance of work duties include illness, burial, force majeure, etc.
Disciplinary sanctions are applied for non-fulfillment or improper performance by the employee of his duties ( Art. 192 of the Labor Code of the Russian Federation ). In this case, the obligations must be fixed either in the employment contract, or in the job description, or in the local regulations of the employer. And each employee must be familiar with them under the signature. When reading these documents, you should pay attention to the fact that the list of official duties was:
- exhaustive i. did not include "and others", "and so forth";
- certain, i.e. did not allow disputes on whether this or that function is in the circle of your official duties or not;
- not contain wording such as "to carry out the instructions of the immediate supervisor"
Otherwise, the employer will be able to interpret the list of your duties as widely as he likes.
5. for gross violation of employment duties:
- absenteeism (absence from workplace without good reason for more than 4 hours in a row during the working day);
- being at work in alcoholic or drug intoxication;
- disclosure of state, commercial secrets;
- committing theft in the workplace, embezzlement, fraud, etc.
These are the main points on which the employer can dismiss you from work. The bad mood of the boss, the economic crisis, the undivided feelings of the employer can not be grounds for termination of the employment contract and dismissal of the employee.
Instead of output
In our time, labor relations are so diverse, and labor conflicts are so sophisticated that it is impossible to give any universal recipes for all occasions. Nevertheless, we will try to give some tips:
1. In any incomprehensible [labor] situation, read the Labor Code.
Your rights need to know and understand when they are violated. As they say, who is warned, he is armed.
2. Request, collect, store documents regulating labor activity.
In this sense, the employer is in a better position: all the necessary documentation is stored from him initially, and legally protected from any unlawful attacks by the employee :) Therefore, the workers themselves are vulnerable, who are in a vulnerable position due to lack of information and the inability to back up position links to documents.
3. Make demands and defend your rights more effectively collectively.
As a rule, the employees of one company have similar working conditions. Therefore, it is logical that the labor problems of one employee may also confront his colleagues. The requirements put forward by the team always make a greater impression on the employer than the same requirements put forward by one employee.
The second article will be devoted to wages: where it comes from, how it is charged and what to do with it.
* In addition to writing articles, we want to try to do a little research in order to understand what kind of violations IT-students most often suffer. We plan to interview those who are in one way or another involved in IT and whose labor rights have been violated. Therefore, we, the trade union of workers in the IT sphere, appeal to the Habrasoobshchestvo : if you were not paid salary , if you were illegally fired, if you received a “black” salary - in general, if your rights were violated in one way or another, share with us by this! It would be great if you agreed to meet in person and talk - give a short interview. All contacts are listed in the profile. Thank you in advance!
Source: https://habr.com/ru/post/284848/
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