“My husband got a job. He was told that labor contract it is not necessary to draw up, they say, this is a formality. How can this turn out for him in the future?
Natalia Z., Biysk ".
Vitaly Ovsyannikov, head of the regional prosecutor's office, answers this question:
One of the most common serious violations of current labor laws is the employer's unwillingness to issue labor Relations with the employee officially in the manner determined by the Labor Code of the Russian Federation, which subsequently generates the complexity, and sometimes the impossibility for the employee to prove the very fact of employment and work.
Meanwhile, by virtue of Art. 67 Labor Code RF labor contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One is transferred to the employee, the other is kept by the employer. The receipt by the employee of a copy of the employment contract must be confirmed by the employee's signature on the copy of the employment contract kept by the employer.
An employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. With the actual admission of the employee to work, the employer must conclude 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. Hiring is formalized by the order (order) of the employer, issued on the basis of the concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.
Article 57 of the Labor Code of the Russian Federation clearly defines the requirements that the content of the employment contract must meet. Among these mandatory requirements when concluding an employment contract, an employee must pay special attention to the place of work, the employee's job function, terms of remuneration (including the amount tariff rate or salary ( official salary) employee, additional payments, allowances and incentive payments), working hours and rest hours.
The order (instruction) of the employer for 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) (Article 68 of the Labor Code of the Russian Federation).
Often, when applying for a job, employees do not attach due importance to the need to get their hands on a copy of the employment contract and familiarize themselves with the employment order, believing that the employer will do everything right. In practice, it turns out that after working for such an employer for two or three months and not receiving a salary, a citizen has nothing to prove both the very fact of the existence of labor legal relations and the amount of earnings, which gives rise to big problems in protecting his violated rights. Sometimes the fact of employment is difficult to prove even in court, since there are not always witnesses from among the persons officially employed by a given employer who are ready to confirm the fact of work in court.
The above-mentioned facts of violations of labor legislation have to be repeatedly encountered in the practice of the district prosecutor's office when resolving complaints.
Citizens turn to the prosecutor's office for help with the hope of protecting violated rights - collecting wage arrears, making a record of work in a work book, but the prosecutor's office, unfortunately, does not always have the opportunity to help an employee if he was too frivolous to register their labor rights.
Thus, if, upon hiring, the employer does not give the employee a copy of the employment contract and does not acquaint him with the hiring order, then there is a reason to think about the reliability of such an employer and not allow violations of labor rights in relation to oneself at the very beginning of employment.
If an employee applies for the protection of his rights, you need to know that Article 392 of the Labor Code of the Russian Federation clearly regulates the time frame for going to court to resolve an individual labor dispute.
By virtue of this rule of law, an employee has the right to apply to the court for a resolution of an individual labor dispute within three months from the day he learned or should have learned about the violation of his legitimate interests... And in disputes about dismissal - within one month from the date of delivery of a copy of the order of dismissal to him or from the date of issue of the work book.
When skipping over valid reasons the terms established by the first and second parts of this Article, they may be restored by the court.
The conclusion of an employment contract is a prerequisite for hiring an employee. It regulates the relationship between the two parties to the labor relationship: the employee and the employer. The Labor Code of the Russian Federation fully regulates the preparation and signing of this document.
General procedure for concluding an employment contract
An employment contract is signed after the employee and employer agree on the working conditions. Typically, each employer has its own approved contract form, in which the necessary information is entered.
Before signing the contract, the employee must be familiarized with all local regulatory documents related to his work.
The agreement will enter into force only after the appearance of both signatures.
The procedure for signing the contract has not been established, so it makes no difference who signs the first, the employee or the employer.
The agreement is drawn up in writing, in two copies, which have the same legal force. One copy remains with the employer, the other is handed over to the employee, it is advisable to do this under signature.
The actual admission of a person to work is equivalent to signing an employment contract, but does not relieve the employer of the obligation to draw up a contract in writing.
Procedure, conditions and terms for concluding an employment contract
The conclusion of an employment contract must be subject to the rules provided for by the Labor Code of the Russian Federation.
Timing
The specific terms for concluding an agreement are not specified in the legislation. Usually it is signed on the first day when the employee takes up his duties. But it can be drawn up and signed earlier.
The only limitation that the legislation makes is the term for the actual signing of the contract, if the employee was allowed to work earlier. The employer is obliged to sign a contract with such an employee no later than three days later.
Foundations
Usually the basis for concluding an employment contract is. But usually this is preceded by a verbal agreement between the employee and the employer about employment.
Also, other documents can act as the basis, for example, a decree on election to a position.
In the Labor Code of the Russian Federation, there is no indication that the conclusion of an employment contract must be preceded by any other document. The very fact that the contract was signed by both parties indicates that the employer accepted the employee, who, in turn, agreed to perform the work under the established conditions.
Terms
Contains a list of working conditions that must be reflected in the employment contract.
Read also: Registration of changes to the terms of the employment contract
Mandatory conditions:
- Place of work, if its actual address differs from the legal one, then its indication is mandatory.
- The date when the employee starts work and the date of the end of the contract (only if it is urgent).
- Schedule. Article 57 says that it is indicated only if it is established for the employee, but it is better to include it in the text of the contract in any case.
- Labor function. This is the main condition, it determines what kind of work the employee must perform and demanding another from him will be illegal. Another nuance is that the Labor Code of the Russian Federation does not require specifying the position, you can only make a record of the labor function.
- The procedure for calculating wages. It is better to describe this information in detail in the employment contract, and not make a reference to the Regulation on remuneration.
- Working conditions based on the results of certification.
- Others mandatory conditions: nature of work, availability harmful conditions and compensation for them, etc.
In addition, the employment contract can include other conditions permitted by the RF Customs Code (additional insurance, etc.), or established by the employer, provided that they do not worsen the employee's position.
Features:
An employment contract may have the following features:
- Be the main contract or. Moreover, the combination can be both external and internal.
All these conditions must be specified in the contract without fail.
Documents to be presented when concluding an employment contract
The documents that the employer has the right to demand from the employee are listed in article 65 of the Labor Code of the Russian Federation. These include:
- Passport or other proof of identity.
- SNILS, if an employee enters work for the first time, the obligation to issue it to the employer.
- Military ID for persons who are classified as liable for military service.
- A diploma or other document confirming the availability of special skills, provided that they are required for the job.
- Other documents confirming the possibility of the employee working in the position (certificate of no criminal record, disqualification, medical certificate, etc.).
- Employment record book, if available. If it is lost or the employee is employed for the first time, it is drawn up by the employer.
Of all the listed documents, only data from the passport is transferred to the employment contract, but nevertheless, the employer may refuse to conclude an agreement (that is, not hire) the employee if he does not have other necessary documents.
Separate documents can be requested if only necessary. For example, you cannot require a medical certificate from an employee whose position does not provide for the need for a medical certificate or a diploma in economic education for a cleaner.
Documents drawn up when concluding an employment contract
When a person is hired, they draw up not only an employment contract, but also several other documents.
Read also: Conclusion of a fixed-term employment contract
Order
On the basis of the signed employment contract, an order for employment is drawn up. Usually they use unified form T-1.
Based on the order, an entry is made in the work book and the T-2 card. A copy of the order is sent to the accounting department and other departments (to the employee's immediate supervisor, timekeeper, etc.).
Notification
The notification is drawn up if a foreigner is hired. This is a document of the established form with which the employer informs the migration service, within the time limit established by law.
Reconnection
There is no such concept as re-conclusion in the Labor Code of the Russian Federation. It can be used in the following case: the legislation says that if there are no mandatory information in the signed agreement, then they must be entered directly into the text of the agreement. How to do this is not said, so many employers simply renegotiate the contract. But there are also those who enter the missing information by hand.
Mandatory information includes:
- full name of the employer and his representative;
- full name of the employee;
- place and date of compilation;
- employee passport data;
Usually this information is supplemented with the address of registration and the date of birth of the employee.
What cannot be a reason for refusal when concluding an employment contract?
The conclusion and content of an employment contract should not depend on race, religion, gender, place of residence and other conditions that may be discriminatory.
Also, you cannot refuse to hire a woman because of pregnancy or the presence of children.
What to do if you refuse to conclude an employment contract?
If the employer refuses to conclude a contract, then the person may demand to state the reasons for the refusal in writing.
The employer must provide such a document within 7 days.
If there is a reason that the indicated reasons are illegal, then the refusal can be appealed in court.
Is it possible to conclude an employment contract in advance
The Labor Code of the Russian Federation does not prohibit the conclusion of employment contracts in advance, for example, if an employee still works for another employer, an employment contract can be concluded in which the date of the start of work can be indicated after dismissal. Such an agreement serves as a guarantee of new employment for the employee.
The conclusion of an employment contract is allowed with persons who have reached the age of sixteen.
In cases of receiving general education, or continuing to master the main general education program of general education in a form of study other than full-time, or abandoning a general education institution in accordance with federal law, an employment contract can be concluded by persons who have reached the age of fifteen years to perform light work that does not cause harm their health.
(as amended by Federal Laws of 30.06.2006 N 90-FZ, of 21.07.2007 N 194-FZ, of 01.12.2007 N 309-FZ)
With the consent of one of the parents (trustee) and the guardianship and trusteeship body, an employment contract may be concluded with a student who has reached the age of fourteen years, in order to perform light work in his free time, which does not harm his health and does not interfere with the learning process.
In cinematography organizations, theaters, theater and concert organizations, circuses, it is allowed, with the consent of one of the parents (guardian) and the permission of the guardianship and guardianship authority, to conclude an employment contract with persons under the age of fourteen years to participate in the creation and (or) performance (exhibiting) ) works without prejudice to health and moral development. In this case, the employment contract on behalf of the employee is signed by his parent (guardian). The permission of the guardianship and trusteeship body indicates the maximum permissible duration of daily work and other conditions in which the work can be performed.
(as amended by Federal Law of 30.06.2006 N 90-FZ)
Article 64. Guarantees when concluding an employment contract
Unjustified refusal to conclude an employment contract is prohibited.
Any direct or indirect limitation of rights or the establishment of direct or indirect advantages when concluding an employment contract, depending on gender, race, skin color, nationality, language, origin, property, social and official status, age, place of residence (including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to business qualities employees is not allowed, except in cases provided for by federal law.
(as amended by Federal Law of 30.06.2006 N 90-FZ)
It is prohibited to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children.
It is prohibited to refuse to conclude an employment contract to employees invited in writing to work by transfer from another employer, within one month from the date of dismissal from their previous place of work.
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 against in court.
(as amended by Federal Law of 30.06.2006 N 90-FZ)
Article 64.1. Conditions for concluding an employment contract with former state and municipal employees
(as amended by Federal Law of 21.11.2011 N 329-FZ)
Citizens who held positions of state or municipal service, the list of which is established by regulatory legal acts Russian Federation, within two years after dismissal from the state or municipal service, have the right to fill positions in organizations, if certain functions government controlled these organizations were included in the official (official) duties of a state or municipal employee, only with the consent of the relevant commission for compliance with the requirements for official behavior of state or municipal employees and the settlement of conflicts of interest, which is given in the manner prescribed by the regulatory legal acts of the Russian Federation.
Citizens who have filled positions in the state or municipal service, the list of which is established by the regulatory legal acts of the Russian Federation, within two years after dismissal from the state or municipal service, are obliged to inform the employer about the last place of service when concluding employment contracts.
The employer, when concluding an employment contract with citizens who filled the positions of the state or municipal service, the list of which is established by the regulatory legal acts of the Russian Federation, within two years after their dismissal from the state or municipal service, is obliged within ten days to inform the representative of the employer (employer) about the conclusion of such an agreement state or municipal employee last place his service in the manner prescribed by the regulatory legal acts of the Russian Federation.
Article 65. Documents to be presented when concluding an employment contract
When concluding an employment contract, a person applying for work presents to the employer:
passport or other identity document;
work book, except for cases when an employment contract is concluded for the first time or an employee starts working on a part-time basis;
insurance certificate of state pension insurance;
documents military registration - for those liable for military service and persons subject to conscription;
document on education, qualifications or availability special knowledge - when applying for a job requiring special knowledge or special training;
a certificate of the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution on rehabilitating grounds, issued in the manner and in the form established by the federal executive body in charge of the development and implementation of state policy and legal regulation in the field of internal affairs, - when applying for a job related to an activity, to the implementation of which, in accordance with this Code, other federal law is not allowed persons who have or have had a criminal record, who are or have been subjected to criminal prosecution.
(the paragraph was introduced by the Federal Law of 23.12.2010 N 387-FZ)
In some cases, taking into account the specifics of the work, this Code, other federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation may provide for the need to present additional documents when concluding an employment contract.
It is prohibited to demand from the person applying for work documents other than those provided for by this Code, other federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation.
When concluding an employment contract for the first time, the work book and the insurance certificate of state pension insurance are drawn up by the employer.
If the person applying for work does not have a work book due to its loss, damage or for any other reason, the employer is obliged, upon written application of this person (indicating the reason for the absence of a work book), to issue a new work book.
(part five was introduced by the Federal Law of 30.06.2006 N 90-FZ)
Article 66. Employment record book
The work record book of the established sample is the main document on labor activity and work experience employee.
The form, procedure for maintaining and storing work books, as well as the procedure for producing forms for work books and providing employers with them are established by the federal executive body authorized by the Government of the Russian Federation.
(as amended by Federal Law of 23.07.2008 N 160-FZ)
Employer (excluding employers - individualsnot individual entrepreneurs) maintains work books for each employee who has worked for him for more than five days, in the case when the work for this employer is the main one for the employee.
The work book contains information about the employee, the work performed by him, transfers to another permanent job and about the dismissal of the employee, as well as the grounds for terminating the employment contract and information about awards for success in work. Information on penalties is not entered in the work book, except in cases where the disciplinary penalty is dismissal.
At the request of the employee, information about part-time work is entered into the work book at the place of main work on the basis of a document confirming part-time work.
Part six is \u200b\u200bno longer valid. - Federal Law of 30.06.2006 N 90-FZ.
Article 67. Form of employment contract
An employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is given to the employee, the other is kept by the employer. The receipt by the employee of a copy of the employment contract must be confirmed by the employee's signature on the copy of the employment contract kept by the employer.
(as amended by Federal Law of 30.06.2006 N 90-FZ)
An employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. With the actual admission of the employee to work, the employer must conclude 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.
(as amended by Federal Law of 30.06.2006 N 90-FZ)
When concluding employment contracts with certain categories of employees, labor legislation and other regulatory legal acts containing norms labor law, it may be necessary to agree on the possibility of concluding labor contracts or their terms with the relevant persons or bodies that are not employers under these contracts, or to draw up labor contracts in a larger number of copies.
(as amended by Federal Law of 30.06.2006 N 90-FZ)
Article 68. Registration of employment
Hiring is formalized by the order (order) of the employer, issued on the basis of the concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.
The order (instruction) of the employer for 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 give him a duly certified copy of the said order (instruction).
(as amended by Federal Law of 30.06.2006 N 90-FZ)
When hiring (before signing an employment contract), the employer is obliged to familiarize the employee against signature with the internal labor regulations and other local regulationsdirectly related to labor activity employee, collective agreement.
(Part three as amended by Federal Law of 30.06.2006 N 90-FZ)
Article 69. Medical examination (examination) when concluding an employment contract
(as amended by Federal Law of 30.06.2006 N 90-FZ)
Persons under the age of eighteen, as well as other persons in cases stipulated by this Code and other federal laws, are subject to mandatory preliminary medical examination (examination) when concluding an employment contract.
(as amended by Federal Law of 30.06.2006 N 90-FZ)
Article 70. Probation for employment
(as amended by Federal Law of 30.06.2006 N 90-FZ)
When concluding an employment contract, by agreement of the parties, a condition may be provided for testing the employee in order to verify his compliance with the assigned work.
The absence of a test condition in the employment contract means that the employee was hired without a test. In the event that an employee is actually admitted to work without drawing up an employment contract (part two of Article 67 of this Code), a test condition may be included in the employment contract only if the parties have drawn up it as a separate agreement before starting work.
During the trial period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, and local regulations.
A test at hiring is not established for:
persons elected through a competition to fill the relevant position, held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;
pregnant women and women with children under the age of one and a half years;
persons under the age of eighteen;
graduates with state accreditation educational institutions primary, secondary and higher vocational education and for the first time applying for a job in the received specialty within one year from the date of graduation from an educational institution;
persons elected to an elective position for a paid job;
persons invited to work by transfer from another employer as agreed between employers;
persons who enter into an employment contract for up to two months;
other persons in the cases provided for by this Code, other federal laws, collective agreement.
The test period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise provided by federal law.
When concluding an employment contract for a period of two to six months, the trial cannot exceed two weeks.
The period of temporary disability of the employee and other periods when he was actually absent from work are not included in the trial period.
Article 71. The result of the test when hiring
If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him of this in writing not later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. The employee has the right to appeal against the employer's decision in court.
(as amended by Federal Law of 30.06.2006 N 90-FZ)
If the test result is unsatisfactory, the termination of the employment contract is carried out without taking into account the opinion of the relevant trade union body and without payment of severance pay.
If the test period has expired, and the employee continues to work, then he is considered to have passed the test and the subsequent termination of the employment contract is allowed only on a general basis.
If during the trial period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract under on their ownby notifying the employer about this in writing three days in advance.
The employer undertakes to provide the employee workplace with appropriate working conditions, to pay for his work in the prescribed amount.
The employee, in accordance with the contract, undertakes to perform the labor functions prescribed by the document, to comply with the rules established in the organization (Article 56 of the Labor Code of the Russian Federation).
What persons can a TD be concluded between?
In which cases?
The emergence of an employment relationship must be confirmed by signing between the parties to the TD. When selecting an employee for an open vacancy, the employer sets certain requirements that the candidate must meet. If the applicant has the necessary skills, has passed a competitive selection, then this can serve as the basis for concluding an agreement.
Below is an algorithm for concluding contracts with employees and what is presented when applying for a job. And approximate form and a sample employment contract between employer and employee.
Important! If the employer refuses the candidate to conclude a contract for the reasons specified in Art. 64 of the Labor Code of the Russian Federation, the employee has the right to appeal against such a decision in court.
Is it obligatory when applying for a job?
Some employers, who are not familiar with the norms and subtleties of the legislation of the Russian Federation, tell their employees that they are not obliged to conclude and sign an employment contract, but this is not so. When asked whether it is mandatory to conclude a contract when applying for a job, the unequivocal answer is contained in Art. 67 of the Labor Code of the Russian Federation, according to which TD is drawn up in writing, in two copies, one of which the employee, after admission to the enterprise, must get his hands on.
If the employee has begun to perform his labor functions by order of the employer, but the documents have not yet been signed, then the contract is considered concluded (Article 67 of the Labor Code of the Russian Federation).
If the manager, when hiring a new employee, evades signing documents, does not issue a second copy of the contract, does not acquaint with the admission order, then this can be regarded as a violation of the Labor Code of the Russian Federation.
- passport;
- work book;
- SNILS;
- documents from the military registration and enlistment office;
- diploma of education;
- a certificate of the presence or absence of a criminal record;
- a certificate on whether the person was brought to administrative responsibility for the use of narcotic and psychotropic substances not related to medical indications.
At the first employment, the employer draws up a work book and SNILS.
According to Art. 65 of the Labor Code of the Russian Federation, the employer does not have the right to demand from the employee who is hired for documents that are not provided for by this Code, other federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation (Article 65 of the Labor Code of the Russian Federation).
How to draw up a contract with an employee?
Let us now consider in what form the contract should be concluded, whether any other than written form can be used. According to the legislation, a TD can only be concluded in writing (Article 67 of the Labor Code of the Russian Federation). A document is drawn up in two copies, one for each of the parties. The employee must receive his copy signed by the employer.
One of the points that the contract concluded between the employee and the employer must contain is the start date of work (Article 57 of the Labor Code of the Russian Federation). It usually coincides with the date of the TD conclusion. If the relationship is drawn up on an indefinite basis, then only this date is present in the contract, and if the contract is signed for a certain period, then the TD will also indicate the date of its expiration, that is, for how long the contract is concluded.
If the document has not yet been signed, but the employee has already taken his workplace and proceeded to perform his duties, then the contract is considered concluded.
We told you more about how to draw up an employment contract.
What if the document is not completed?
An employee, faced with such a situation, must understand that in the future a controversial issue may arise with the employer, and in order to defend his rights, the employee will need to make a lot of efforts.
Important! An employee can defend his rights in the labor inspection, prosecutor's office or court.
Who signs and is stamped?
The norms of labor legislation do not establish a specific sequence of who first signs the document - the employee or the employer. By general ruleWhen a TD is concluded, the employee is the first to sign it, since the personnel department is often involved in the preparation of employment documents.
Having received from the TD employee with his signature, the personnel service transfers it to the head for signature. Whether the employer puts a seal is a matter for each organization in its own way. The presence in the document of the seal of the organization is not mandatory (Articles 57, 67 of the Labor Code of the Russian Federation).
Terms of registration
It is important to know what is considered the moment when the TD starts to work: if the employee, in fact, has already started work on behalf of the employer, then the TD is considered concluded with him, even if the document has not yet been drawn up properly (Article 67 of the Labor Code of the Russian Federation). With such an employee, the employer is obliged to issue a TD no later than three days from the date of actual admission to work.
TD comes into force from the day it is signed by the parties or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative (Article 61 of the Labor Code of the Russian Federation).
How many copies of the contract should there be and how to get one of them?
According to Art. 67 of the Labor Code of the Russian Federation TD is in writing in two copies, one of which is given to the employee. In this case, the receipt by the employee of a copy must be confirmed by the employee's signature on the copy of the TD, subsequently kept by the employer. If the document was not issued, then in order to obtain it, the employee can apply to his employer with a written application, in which he can voice his request to issue the document.
It is necessary to ensure that the application is accepted and recorded as incoming correspondence. If the employer does not respond to the employee's statement, a copy of such a statement will be required to resolve the issue in court.
What are the legal guarantees?
The Labor Code of the Russian Federation establishes guarantees for the conclusion of a TD. According to Art. 64 of the Labor Code of the Russian Federation:
- the employer cannot refuse to conclude a TD without a justified reason;
- it is forbidden to refuse to conclude a TD, depending on race, nationality, language, place of residence, membership of public organizations;
- it is prohibited to refuse to register an employment relationship with a woman because of her pregnancy or having a child;
- employees who have been invited in writing and who are transferred to work from another employer cannot be denied employment.
An employee who has been denied a TD conclusion has the right to require the employer to inform the reason for the refusal in writing. From the moment the request is submitted, the employer has 7 days to provide a response.
Potential problems and solutions
If the employee refuses to sign
If the head of the organization wants to formalize labor relations in accordance with the law, and the employee refuses to sign the employment contract, then the following actions must be taken:
- record the fact of refusal to sign the document (in writing, video, but only with consent);
- give the employee a copy of the order for his acceptance;
- familiarize with internal documents against signature;
- organize an internship.
If, after the above actions, the employee continues to refuse, then he cannot be accepted.
The employer does not issue a visa
If the employer does not sign the employment documents, the employee should persistently ask him about it orally or in writing, referring to Art. 67 of the Labor Code of the Russian Federation. In addition, you need to ask to familiarize yourself with the order for employment and make the appropriate mark in work book (Article 66, Article 68 of the Labor Code of the Russian Federation).
If no action has been taken on the part of the organization, then it is necessary to start protecting your rights in the labor inspectorate or court. To prove the fact of employment, an employee will need to provide evidence (work reports, certificates). In addition, it is possible to prove the fact of work with the help of audio and video materials, as well as witnesses (Article 55 of the Code of Civil Procedure of the Russian Federation).
Don't give a copy
If the employee at the new place of work is not given a copy of the contract, then he can begin to demand a document in writing. If it is never issued, then the next step will be to contact the labor inspectorate with a statement about the violation of the norms of Art. 67 of the Labor Code of the Russian Federation. When filing a complaint with the inspection, you will need to provide a copy of the statement to the head, where the request to issue a copy of the contract to the employee is indicated.
Based on the appeal labour Inspectorate organizes an inspection at the enterprise. If the violation of the law is confirmed and the employee is really not given a copy of the TD, then the employer of the enterprise will be issued an order to eliminate the violations, and he can also be brought to administrative responsibility (Article 5.27 of the Administrative Code).
The hiring of an employee must be formalized in accordance with all legal requirements. It is the direct responsibility of any employer to conclude a trading house with an employee in writing. In practice, employers often do not adhere to the rules, and many employees, not knowing how to resolve the issue, continue to fulfill their obligations without proper registration. Official employment cannot be issued without signing between the parties to the TD and receiving one copy of the document by the employee himself.
If an exact answer is needed, then, in order to avoid misunderstandings, I am citing the appropriate quotations as an answer to your question: "Article 68 of the Labor Code of the Russian Federation.
Hiring is formalized by the order (order) of the employer, issued on the basis of the concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.
The order (instruction) of the employer for 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 give him a duly certified copy of the said order (instruction).
When hiring (before signing an employment contract), the employer is obliged to familiarize the employee against signature with the internal labor regulations, other local regulations directly related to the employee's labor activity, the collective agreement
Article 56. The concept of an employment contract. Parties to an employment contract
Labor contract - an agreement between the employer and the employee, in accordance with which the employer undertakes to provide the employee with work for a specified labor function, to ensure the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations and with this agreement, timely and in full pay the employee wages, and the employee undertakes to personally perform the job function defined by this agreement, to comply with the internal labor regulations in force for this employer.
Article 63.
... unjustified refusal to conclude an employment contract is prohibited.
Any direct or indirect limitation of rights or the establishment of direct or indirect advantages when concluding an employment contract, depending on gender, race, skin color, nationality, language, origin, property, social and official status, age, place of residence (including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to the business qualities of employees, is not allowed, except for cases provided for by federal law.
It is prohibited to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children.
It is prohibited to refuse to conclude an employment contract to employees invited in writing to work by transfer from another employer, within one month from the date of dismissal from their previous place of work.
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 may be appealed against in court. "
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