Lawyers about testing when hiring in the private sector

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In the first two articles ( first and second ) on labor law, the author tried to convey how far the law goes against certain established customs. It became clear from the comments that many do not even realize that modern “test tasks” are from 4 hours to several days of full-scale remote work with the delivery of the result.

This article provides an overview of expert opinions with minimal comments.

Unfortunately, there are no direct links. Sources are easily found in the search engine, but it is difficult to choose which one is authentic.

First expert: Yashurina E.V. - Candidate of Law

Excerpts from the scientific article "Some issues of testing and assessing the business qualities of workers" , Perm, 2013.

... The author in his own dissertation research for the degree of candidate of legal sciences [17] analyzed the norms of the Labor Code of the Russian Federation on the regulation of the procedure for checking and assessing the employee's business qualities and concluded that the two existing systems are the so-called “traditional” recruitment (general procedure) and competitive selection (special order). The general procedure is to hire directly from the employer, in which the job seeker submits an application addressed to the employer, the employer signs an employment contract with the said person and issues an employment order (paragraph 1 of Article 16 of the Labor Code of the Russian Federation). With such a procedure for concluding an employment contract, the legislator does not assume procedures for checking and assessing the business qualities of applicants, the employer, in fact, conducts business tests based on documents and interviews.

Oh, what "dreamers" these candidates of sciences, are not worse than the author.

... The current edition of Art. 18 of the Labor Code of the Russian Federation does not allow local regulation of the competitive selection procedure due to the established requirement of the need for a law, other regulatory legal act or charter (provision) of organizing the list of positions to be replaced by competitive bidding, and the procedure for competitive election for these positions. Based on the literal interpretation of the article ...
... Thus, the "traditional" employers, thus, do not have the opportunity to legally establish local means of local lawmaking as to how to test a candidate's business qualities. Local regulations adopted today on the procedure for admission to work, we believe, are non-legal in nature and cannot be regarded as sources of labor law.
... In general, employers can be divided into 2 categories:
1) "traditional" employer - organizations, individual entrepreneurs, individuals who do not have any special status, allowing to settle the procedure for admission to work. This category of employers "is forced" to be guided only by the norms of the Labor Code of the Russian Federation, as a result of which the procedures for checking and assessing the business qualities of workers are transferred to the extra-legal sphere, significantly worsening the situation of workers;

In 2018, the norm remains in the same wording. According to the expert, the competition for the private sector essentially has legal obstacles.

... Normal, from the point of view of legal norms that do not contradict federal laws and other regulatory legal acts of the Russian Federation, assessment methods are, for example, questioning on the basis of specially designed issues related to the performance of official duties . Testing of candidates can be conducted on a single list of questions, compiled in accordance with the qualification requirements for professional knowledge and skills necessary for the performance of official duties for the vacant civil service position for which the competition is held.

As we see, the expert also points to the survey, and not some practical test, even on a competitive basis.

... A positive trend is amending Art. 57 of the Labor Code of the Russian Federation by Federal Law of December 3, 2012 No236- - the concept of “professional standard”, new for the Labor Code of the Russian Federation, has been introduced. The introduction of a professional standard will allow defining qualification requirements for the profession, i.e. criteria for assessing the business qualities of employees.

Specifically, several commentators talked about this to past articles, but such regulation is negative. Instead, every prince, from small to large, wants to rivet his own standards of business skills and qualifications.

Second expert: N. Demeneva - Candidate of Sociological Sciences, retired federal judge

Article "Discrimination in Employment: Social and Legal Aspects" , Novosibirsk, 2007.

Taking into account foreign experience and the experience of large Russian companies, a certain procedure for hiring has been established, which is not legally recorded anywhere and which, by virtue of its prevalence, is acquiring the character of customary law. This procedure is also attempted by medium-sized business leaders; it includes three stages.
The first stage is familiarization and study of documents, collection of information about the candidate for the position.
... It is possible to rate an employee by summary and attached document package only superficially and subjectively. As a rule, if the employed person has work experience and is fully qualified for the vacant position, it is not a fact that he will be accepted by him. The subjective assessment of his personality, such as age, sex, marital status, lack of registration at the place of residence, etc., can serve as a discriminatory point.
... The second stage of hiring is an interview.
... A person’s blacklisting can often have a subjective assessment based on personal hostile relations ... Article 86, paragraph 3, of the Labor Code of the Russian Federation: “All personal data of an employee should be obtained from him. If the employee’s personal data can only be obtained from a third party, the employee must be notified in advance and written consent must be obtained from him. The employer must inform the employee about the objectives, intended sources and methods of obtaining personal data, as well as the nature of the personal data to be received and the consequences of the employee’s refusal to give written consent to receive them. ” According to paragraph 9 of Art. 86 of the Labor Code of the Russian Federation, employees should not waive their rights to preserve and protect secrets.

Therefore, it touches to read how HR in its articles first of all searches for the name of a candidate in search engines. The processing of personal data has become even tougher since writing this article.

The third stage - professional, test tests. This is the next stage in the professional selection of personnel.
According to the results of a sociological survey, none of the respondents from a commercial or state organization of small and medium-sized businesses have any professional testing for hiring. ... Employees of the human resources department, deputy heads, as a rule, do not have an appropriate (psychological) education, therefore can conduct high-quality testing.
... When testing and avoiding any discrimination , the following rules must be observed: seek the consent of the candidate ; provide the test subject with preliminary information about the test used; the test should determine the professional qualities of the candidate, necessary for the position for which he is applying ; test tests should be carried out by professional psychologists.
... The correctness and objectivity of the test results can be checked not only by the psychologist himself, but also by those employed. The use of psychological tests of professional selection to determine professional suitability when applying for a job is increasingly included in the sphere of legal regulation of labor in Russia. So, future employees of the Ministry of Internal Affairs, FSB, candidates for judges are already undergoing a testing procedure.

Note that compatibility with the employees already hired is out of the question. Accordingly, the applicant may even refuse to undergo such testing or replace it with a certificate from another qualified psychologist or psychiatrist.

The results of such testing can be used for failure in fact only if it is regulated by law. For the general case, the LC RF does not imply such a check.

In fact, the presence of a driver's license already presupposes the adequacy of a person, as it were, on this topic, not giggling, because Testing with a psychologist is required to obtain a medical certificate for admission to driving.

Although art. 64 of the Labor Code of the Russian Federation prohibits an unjustified refusal to conclude an employment contract due to circumstances that are discriminatory, but practice shows that none of the managers (his representatives) never openly refuse to accept a job for this reason, exposing other reasons for refusal, for example, the absence of places
... If the employer has refused to accept a job due to circumstances related to the business qualities of the employee, this refusal is justified. Under the business qualities of an employee, you should understand the ability of an individual to perform a certain labor function, taking into account his professional skills, for example, having a certain profession, specialty, qualification, as well as personal qualities of an employee (for example, health, education, work experience in this specialty) . But how is it actually possible at the first stages of selection to determine the business qualities of a candidate?
... The Labor Code of the Russian Federation does not contain rules obliging an employer to fill vacant positions immediately as they arise, so the courts check whether the employer has made a job offer (for example, radio announcements, bulletin boards, a message to employment service agencies) ; Whether negotiations were held on employment with this person and for what reasons he was denied an employment contract.

Once again, the interpretation is for those who refuse to understand the essence of Article 64 of the Labor Code and the opinion of the Supreme Court of the Russian Federation. If - the place is vacated, then no one is obliged to fill it, but if the employer has already begun a public search for a candidate, he MUST conclude an employment contract with him on demand if the applicant meets the requirements of public qualities presented to the public.

The expert also catches the paradox previously voiced, that there can be no verification before hiring!

Third Expert: A.Z. Dolova - Candidate of Law

Article "The rights of workers and employers for admission (admission) to work" , 2004.

... As rightly emphasized in the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, the employer, for the purposes of effective economic activity and rational property management, independently takes the necessary personnel decisions (selection, placement, dismissal personnel), and entering into an employment contract with a specific job seeker is a right, not an obligation of the employer.

Yes, the expert is also aware as the commentators.

... The ability of an employee to perform this or that job (labor function) cannot always be identified at the conclusion of an employment contract, even if he has the required professional qualifications, which at this stage can only be confirmed by relevant documents. In this regard, to test this ability, the Labor Code of the Russian Federation provides for a special legal mechanism - the establishment of a probationary period for admission to work (Art. 70-71). Therefore, speaking of the need to specify and clarify the concept of “business qualities of an employee,” it would be more appropriate not to give his definitions as such, but to establish the criteria by which the employee’s business qualities should be determined.

Already the third expert catches this incident. Check under article 70 of the Labor Code, and before that it is impossible to check legally!

... With this in mind, the Labor Code of the Russian Federation includes a special rule prohibiting an unreasonable refusal to conclude an employment contract (article 64). The presence of such a rule in the Labor Code of the Russian Federation is, of course, a progressive and objectively necessary phenomenon. It is based on the provisions of the Constitution of the Russian Federation (Art. 19) and the norms of international law that guide states to pursue policies aimed at promoting equality of opportunity or treatment in the field of labor and occupation in order to eradicate all discrimination (ILO Convention No. 111, June 25, 1958) .

Yes, this is not a whim of local lawmaking, but an international principle.

... However, it should be noted that under Art. 64 of the Labor Code of the Russian Federation guarantees at the conclusion of an employment contract do not currently provide adequate protection of citizens against an unreasonable refusal to hire . This is due, firstly, to the fact that the guarantees themselves in the Labor Code of the Russian Federation are not always articulated sufficiently and, secondly, it lacks an effective legal mechanism for their implementation.

Yes, this is a sad fact.

... It should be noted that the position expressed (although indirectly) is reflected in the Resolution of the Plenum of the RF Armed Forces, which says that the Labor Code of the Russian Federation does not contain rules obliging an employer to fill vacant positions or jobs immediately as they arise, and therefore when considering disputes, of denial of employment, you must check whether the employer has made an offer for its existing job (for example, a message about the vacancies referred to the employment agencies, placed in the newspaper, announced on the radio announced about during speeches to the graduates of educational institutions, posted on a bulletin board), if negotiations were conducted on employment with the person and on what grounds it is denied.

The direct reference to the nature of the public contract vacancy announcement is underlined.

Conclusion

There are different opinions, but there is a law and, in general, a unanimous chorus of its expert interpreters. There are many other scientific articles, but the essence does not change.

In articles and other scientific works there is an obvious reference to the fact that the announcement of the work has the nature of a public contract. That is why the employer has the obligation to hire an applicant.

Experts agree that a practical test, regardless of its name, is permissible only within the framework of an employment relationship. Labor relations arise even without signing the contract - this is the provision of the Labor Code without any speculation.