Rules for hiring and its documentation. Hiring a graduate (Kolinko A.)

You have come to get a new job workplace, and the employer announces to you: “ The first month you work for free is... probation " To agree or not?

Knowing that a newcomer, wanting to prove his suitability to a new employer, works hard and conscientiously, some unscrupulous employers take advantage of such zeal. And after the probationary period inform the newcomer that for some reason he is not suitable.

Or specifically simulate a conflict situation so that the newcomer is forced to leave the workplace. Then the dishonest employer looks for a new victim, history repeats itself, the work is done, but there is no need to pay for it.

Everyone knows sad cases of this abuse of legal illiteracy inexperienced trainees. How to legally confirm your right to work for pay during the probationary period? We present you with a comprehensive answer, but first let’s figure out what we mean by the word internship.

The word internship can mean:

component postgraduate education. When you work for the first time after studying in order to gain work experience in your specialty;
when registering for new job ‒ probationary period. Internship implies, in addition to the actual work, training in a specific workplace specifics labor activity. Regulated by Article 70 of the Labor Code of the Russian Federation;
training in labor protection and safety rules after initial instruction, followed by passing an exam, especially in enterprises with harmful and dangerous working conditions. Legislatively, the rules of internship in the field of labor protection are enshrined in 225 of the Labor Code of the Russian Federation;
appropriate training when transferring an employee to a position that requires different skills.

The main goal of any type of internship is to consolidate in practice the skills, knowledge and abilities acquired as a result of theoretical training.

Admission of a person to work with or without a training process entails employer's obligation to conclude employment contract (Article 67 and 67.1 of the Labor Code of the Russian Federation).

Article 70 of the Labor Code of the Russian Federation provides for the conclusion of a regular employment contract with the condition of passing a test (probationary period) for newly hired workers, excluding persons entering work for the first time after training in a specialty. With persons hired after vocational training, a fixed-term employment contract, the procedure for registration of which is approved in Article 59 of the Labor Code of the Russian Federation.

If, upon hiring, a regular (not fixed-term) employment contract was drawn up and it does not indicate the testing procedure, it is considered that the employee was hired without a probationary period. After this, the employer does not have the right to establish any tests, except after an appropriate internship.

Drawing up an employment contract obliges the employer to pay for the work of the intern or an employee on probation. Since the employer has the right to independently determine the size wages during an internship, this point must be discussed in advance.

The employer does not have the right to set a salary during the internship that is less than minimum size , established by the law of the Russian Federation. Still, it is logical that the salary of an intern will be less than the salary of a permanent employee performing the same work.

Duration of internship

Determined depending on the goal and production needs. Upon conclusion fixed-term employment contract under Article 59 of the Labor Code no more than two weeks.

If an employee is hired by an enterprise according to regular employment contract with a probationary period in accordance with Art. 70 of the Labor Code of the Russian Federation, his internship or probationary period may last up to three months. And for managerial positions this period can be no more than six months.

If the result is poor, the employer has the right to terminate the employment contract even before the expiration of the test period (Article 71 of the Labor Code of the Russian Federation

An employee who is not satisfied with the conditions at his new place of work has a similar right to terminate the contract. The employee and employer are required to notify each other of their desire three days in advance in the form of an order (for the employer) or a statement (for the employee).

At the same time, the employee it is not necessary to indicate the reasons for early termination of the contract, which cannot be said about the employer. The latter is obliged to confirm his desire with documents, for example, memos, explanatory notes, acts official checks. Otherwise, the illegally dismissed employee has the right to go to court.

Hours and shifts

An internship or probationary period does not affect the employee's rights with regard to working hours or night work.

The employer is obliged to comply with regulations regarding the length of the working day stipulated in articles 91-99 of the Labor Code of the Russian Federation in relation to employees on internship or probation.

Employment contract form

The future employee writes an application asking to be accepted for an internship. Based on the application, the employee signs employment contract.

The boss then issues an order to begin the internship. The form of the order is not approved by law, therefore, at each enterprise it can be designed differently in accordance with the specifics of the workplace. The main provisions that should be covered in the order:

The document appoints a person responsible for training the young specialist. The responsible person is most often the head of a department or section or workshop. This could be a work partner. In addition to the internship supervisor, a mentor-instructor may be appointed;
the order specifies the duration of the internship;
when the internship ends, new employee passes a safety exam, testing the knowledge and skills acquired during the internship. This point must also be specified in the order.

The order is signed, in addition to the head of the enterprise, by all persons mentioned in this document.

Before the internship, an initial briefing is carried out, about which a corresponding entry must be made in the briefing log.

Typically, after successfully passing a safety exam, the employer issues order for admission to independent work . If the employee does not pass the exam, non-admission to work is also issued in the form of an order. This procedure is not required in enterprises where no harmful or dangerous working conditions have been established. We will try to answer all your questions in the comments.

Hiring a graduate (Kolinko A.)

Date of article posting: 10/22/2014

Some companies prefer to hire graduates with no work experience and train them taking into account the specifics of their production. At the same time, employers have the following questions: when can they refuse to hire a graduate? Is it legal to install young specialist probation? What documents need to be completed? The answers to these questions are in this article.

When can you refuse?

For an employer, hiring yesterday's students is too much of a risk, since young people do not have what it takes to be successful. professional activity skills and relevant work experience. Therefore, the main task of the employer is to select from graduates - applicants for the position the most capable, possessing the necessary business qualities, motivated to obtain the knowledge and skills necessary to perform job responsibilities. At the same time, when screening out applicants who do not meet its requirements, the employer should remember that one of the guarantees established by labor legislation is the prohibition of unreasonable refusal to conclude an employment contract.
Part 2 Art. 64 of the Labor Code of the Russian Federation contains an indication that any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract is not allowed, depending on circumstances not related to the business qualities of employees, with the exception of cases in which the right or the obligation to establish such restrictions or benefits is provided for by federal laws. That is, an employer may refuse to hire a young specialist due to circumstances related to his business qualities, or due to a direct requirement of federal law.
The business qualities of an employee should be understood as abilities individual perform a certain labor function, taking into account the professional qualifications he has (the presence of a certain profession, specialty, qualifications), the personal qualities of the employee (health status, a certain level of education, work experience in a given specialty, in a given industry). In addition, the employer has the right to present to a person applying for a vacant position or work other requirements that are mandatory for concluding an employment contract by virtue of a direct prescription of federal law or that are necessary in addition to standard or typical professional qualification requirements due to the specifics of a particular job. work (for example, owning one or more foreign languages, ability to work on a computer) (clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).
If an employer refuses to hire a graduate applicant for a position, he is obliged, at the request of the candidate who was denied an employment contract, to provide the reason for the refusal in writing (Part 5 of Article 64 of the Labor Code of the Russian Federation). Subsequently, this candidate can appeal such a refusal in court. Therefore, the employer should carefully consider the preparation of a written refusal.
When preparing a written response to a graduate’s request, the employer should explain the specific reason for the refusal, indicate that he lacks the business qualities necessary to perform the duties of the position for which he is applying, or refer to the established restrictions provided for by federal laws.
Practice shows that fixing the requirements for certain positions in the local normative act(for example, in a job description) will allow the employer to clearly justify the basis for refusing to hire. In this regard, Rostrud, in Letter dated 08/09/2007 N 3042-6-0, indicated that the absence of a job description in some cases prevents the employer from carrying out a justified refusal to hire (since it may contain additional requirements related to the employee’s business qualities) .

Probation

According to Part 1 of Art. 70 of the Labor Code of the Russian Federation, when concluding an employment contract, by agreement of the parties, it may provide for the condition of testing the employee in order to verify his compliance with the assigned work. When deciding to include a probation clause in an employment contract, the employer must make sure that the graduate does not belong to the category of persons for whom probation cannot be imposed. These include, in particular:
- pregnant women and women with children under the age of one and a half years (paragraph 3, part 4, article 70 of the Labor Code of the Russian Federation);
- persons who have received higher education with state accreditation educational programs and those entering work for the first time in the acquired specialty within one year from the date of receipt vocational education(paragraph 5, part 4, article 70 of the Labor Code of the Russian Federation);
- persons who have entered into an employment contract for a period of up to two months (paragraph 8, part 4, article 70, article 289 of the Labor Code of the Russian Federation).
If a test condition is included in an employment contract with a graduate who is not allowed to establish a test, this condition will not be valid (Part 2 of Article 9 of the Labor Code of the Russian Federation). The dismissal of such a graduate based on the results of the test (Part 1 of Article 71 of the Labor Code of the Russian Federation) will be illegal.
At the same time, based on the content of paragraph. 5 hours 4 tbsp. 70 of the Labor Code of the Russian Federation, we can conclude that a hiring test can be established for graduates:
- graduated from higher education educational establishments who do not have state accreditation;
- those who are getting a job not for the first time in their acquired specialty;
- getting a job not in the specialty they received;
- those who get a job after a year from the date of completion of training.
It should be noted that if, when concluding an employment contract, a probationary clause was included in it, then the employer must remember that during the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing standards labor law, collective agreement, agreements, local regulations (Part 3 of Article 70 of the Labor Code of the Russian Federation). This means that during the probationary period, the young specialist has the same rights as employees hired for the same position earlier or hired without probation.

Decor

Documenting labor relations with graduates is carried out on general principles provided for by labor legislation for hiring. However, there are some peculiarities.
If a graduate enters into an employment contract for the first time, then in accordance with Part 4 of Art. 65 of the Labor Code of the Russian Federation, the employer must issue a work book and an insurance certificate of state pension insurance.
Decor work book for an employee hired for the first time, is carried out by the employer in the presence of the employee no later than a week from the date of hiring (clause 8 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225, hereinafter referred to as the Rules).
It should be noted that according to clause 2.1 of the Instructions for filling out work books, approved. According to Decree of the Ministry of Labor of Russia dated October 10, 2003 N 69 (hereinafter referred to as the Instructions), the entry on education on the first page (title page) of the work book is made only on the basis of properly certified documents (certificate, certificate, diploma, etc.).
In accordance with Part 7 of Art. 60 Federal Law dated December 29, 2012 N 273-FZ "On education in Russian Federation"a document on education and qualifications issued to persons who have successfully passed the final state certification confirms receipt of professional education at the next level and the following qualifications in the profession, specialty or area of training related to the corresponding level of professional education:
- higher education - bachelor's degree (confirmed by a bachelor's degree);
- higher education - specialty (confirmed by a specialist diploma);
- higher education - master's degree (confirmed by a master's diploma);
- higher education - training of highly qualified personnel, carried out based on the results of mastering training programs for scientific and pedagogical personnel in graduate school (adjunct), residency programs, assistantship-internship (confirmed by a diploma of completion of postgraduate school (adjunct), residency, assistantship-internship, respectively).
Since Law N 273-FZ established new levels of professional education, and no corresponding changes were made to the by-laws (Rules, Instructions), some experts believe that on the basis of a bachelor’s (specialist, master’s) diploma in the “Education” column on the title page on the work book sheet you should make an entry: “higher - bachelor” (“higher - specialist”, “higher - master”). It seems advisable to make appropriate adjustments to by-laws or official clarifications from the relevant authorities on this issue In the “Education” column, indicate one word - “higher”.
The first entry about employment in the “Job Details” section should be entered in general procedure, established by clause 3.1 of the Instructions. In this case, it is necessary to pay attention to the fact that the graduate’s time of study at the university is not recorded.
In conclusion, it should be noted that errors and inaccuracies made when preparing a work book (absence of a seal imprint on the title page or an unclear seal imprint, making entries with any abbreviations, incorrect indication of position, etc.) can lead to problems for graduates with both future employers and pension authorities.

By the end of the year, the State Duma may adopt a law requiring employers to apply professional standards. The need to get a job based on a diploma has scared many.

The Ministry of Labor issued an order on the register of professional standards (list of types of professional activities) in September 2014.

By the end of the year, the State Duma may adopt amendments to the Labor Code introduced by the Russian government. According to the new Federal Law, professional standards that regulate the level of education and necessary knowledge of an employee are subject to mandatory application by organizations. In the original versions of the document were discussed only about government

structures, but after the first reading in the State Duma an addition appeared - the application of standards from 2020 is mandatory for everyone.

Many were frightened by the prospect of working according to their diploma and following the rules imposed from above.
“At the origins of standardization was the former Deputy Minister of Health and Social Development of the Russian Federation, and now the Vice-Rector of the Academy of Labor and Social Relations, Alexander Safonov.
- Alexander Lvovich, why is it necessary to regulate professions? - In the Soviet Union there was a clear relationship between education and the production sector. There was a mandatory distribution of personnel. The graduate was sent to a specific enterprise. Interconnection had a positive effect on the quality of learning. The employee was prepared for work. Now educational institutions are preparing specialists for the open labor market. The conflict is that they come out with vague knowledge. The employer is forced to spend money on retraining or finding worthy personnel. A gap has emerged between the content of education and the labor market. Ideally, standards are designed to improve efficiency educational process and help the employer. The system of professional standards is aimed to formulate basic requirements for specialists who are in demand in the industry. Journalists should not only have the style, but also clearly understand in information
technologies, evaluate the quality of material, make
interesting story . You must create intrigue and sell your materials. The professional standard prescribes labor functions and with the help of what skills the employee must perform them.- Can’t an employer without standards act as a filter?
- Maybe. And the last word will remain with him. Mandatory application means that companies must use standards to develop their job descriptions, but this does not mean that even for the presenter of a television program, the standard states: “Ensure the reliability of the factual data presented during the program.” How can an employee of Channel 1 who reads the ticker be held responsible?
- This point was not pulled out of thin air, and this, of course, is not the initiative of the workers. This requirement stems from the employer. We are developing standards in discussions.
- It turns out that Konstantin Ernst is given the right to share his responsibility with the “talking head”.
- Do not forget that in labor relations the employment contract is of fundamental importance. It is here that the requirements for the employee are formalized and obligations are prescribed and responsibility. Professional standard is a generalized labor function. Therefore, when Ernst forms the requirements, he is unlikely to write down this clause. It is he who bears responsibility as the general director and publishing editorial staff. In case of an error, it will not be the leader who will be removed from his position, but the specialist whose contract will reflect the corresponding task.
-Can you still remember controversial moments?
- For example, there was a heated debate around the standard of a media correspondent. Initially, it was proposed to prescribe specialized education. But after communication with employers crossed it out (In the column “Requirements for education and training” it is written: Higher education. In special cases, by decision of the editors, the qualification level may be reduced.” - Ed.). In foreign countries, no one is afraid that a philosopher freely competes with graduates of the Faculty of Journalism. I think this is the right vector.
- Was there a similar classification under the Union?
- There were uniform tariffs qualification reference books and directories for employee positions. They are still legitimate. They contain 25 thousand working professions and about 7 thousand job requirements for the specialties of employees. This ramification was suitable for the state distribution of specialists. Now there is no such need, just as there is no need to describe standards for a specific position. Specialists have become more versatile. In other words, we're going from academics to practicality, from 32 thousand requirements to a thousand or two standards.

Some say that the Ministry of Labor took foreign systematization as a model. Others say that there are no analogues.

The leader in the practice of describing professions was still Soviet Union.
In countries where the labor market is changing rapidly, don't be puzzled development of professional standards.
In Germany, three specialty training certificates are accepted. One confirms the right to work under the supervision of a specialist, the second allows you to independently carry out work and imposes responsibility, the holder of the third can himself supervise the specialist.
In the United States, graduates of medical universities may work with serious restrictions. If the medical association does not issue a qualification diploma, the doctor does not have the right to engage in private practice. The medical community solves two problems - it confirms the quality of a specialist and regulates the labor market, preventing an oversupply of personnel. In many countries, standardization is aimed specifically at regulating the labor market. This is both bad and good.
On the one hand, qualifications increase, on the other, competition is limited.
The United States currently has the most extensive network of professional standards.
- Are we striving for them? - No. With such economic indicators, we will not achieve American model
. We simply don’t have that many professions. - Many standards have not yet been developed, but pedagogical
already approved. What is its originality?
- Now a teacher from a kindergarten will be able to work in an elementary school. Demographic peaks are popular here – either there are a lot of preschoolers, or there is an overabundance of schoolchildren. And we had to regulate the personnel market. The new standard will help sustainability. I hope the teacher will not have the fear of being left without work.
- A standard has been developed even for the producer in the field of cinematography. Will you also reach the artists? - I can’t speak for everyone, not only we are developing
standards. But, in my opinion, that would be stupid.
- From the legislator’s point of view, to what extent is it obligatory to adhere to professional standards?
- A commercial employer may ignore it completely. In theory, so does the government structure. The government decree does not say that the employer does not have the right to hire an employee who does not fall under the standard. For clarity, I will give a couple of examples when the current legislation introduced restrictions on professional requirements. According to established rules, only a person with a specialized education has the right to provide medical care. A driver without a license cannot begin to perform a job function. In addition, the standard is assistance to personnel services in building a career selection strategy. No Gazprom personnel officer will be able to hire a person who has not been trained in drilling, if such a skill is necessary.

Right. This is yet another confirmation that nothing revolutionary will happen after the standards are introduced.
Most issues are regulated by life.

- But the average person believes that he is being pushed into a framework and forced to work according to his diploma. Initially, the ideology concerned promising professions that would determine the future of the country. The main emphasis in implementing standards is not on artists and journalists, but on engineers, designers, doctors, specialists in the field of biotechnology, information and telecommunications systems The project was aimed at boosting labor markets and educational

services to progress. But employers themselves are often not ready to formulate requirements for specialists. They used to use general descriptions like “skilled, capable, effective.” In the USA, on the contrary, the initiative was from professional

guild that wanted to standardize the quality of services. We have it done from above. But still
key topic - reasonableness. Managers must feel the line and not reach the point of insanity. It is possible to develop a professional standard for a janitor, but why?" Interview Fontanka.ru Reference:

Safonov Alexander Lvovich. Doctor of Economic Sciences, Professor. Since 1992, he worked in the Ministry of Labor of the Russian Federation in various positions. From 2004 to 2007 - Director of the Labor Relations Department and state civil service

Ministry of Health and Social Development, since December 18, 2007 - Deputy Minister of Health and Social Development of the Russian Federation. Since August 2012 - Vice-Rector of the Academy of Labor and Social Relations. Head of the State Duma Committee on Labor, social policy and Veterans Affairs, Olga Batalina said that the introduction of professional standards does not mean that Russians will be prohibited from working outside their specialty.“For every profession for which it is objectively necessary to accept such requirements, they are developed by professionals in a specific field of activity. Based on these requirements, the employer develops internal

local acts

“There is also a significant gap between the requirements that an employer makes when hiring for a specific specialty, and educational standards by which these specialists are trained in educational institutions,” the deputy noted.

What entry should be made in the work book? When hiring an employee (at the same time), a main contract for the profession and an apprenticeship (training at the same enterprise) with a break from production in the same profession are concluded. Is it possible to first make an entry in the work book “accepted as a student...”, and after training “assigned a profession..” or do you need to immediately make an entry under the main employment contract, that is, without indicating an apprenticeship? Which is correct? Does the procedure change if the student is on-the-job? Thank you.

Answer

Answer to the question:

Don't miss: the main article of the month from a practical expert

The personnel officer draws up a profitable student agreement: a visual cheat sheet.

An apprenticeship contract involves the acquisition by an employee of a new qualification (Article 199 of the Labor Code of the Russian Federation).

Accordingly, we can conclude that concluding an apprenticeship contract for the acquisition of a new qualification and an employment contract for work according to the same qualification, if such an employment contract comes into force simultaneously with the apprenticeship, is doubtful. The employee will actually work in the profession before acquiring it based on the results of training.

In addition, in order to allow the worker to harmful work to work independently, you need to conduct appropriate safety training and on-the-job training (Regulations on the organization of training and testing of workers’ knowledge, approved).

Details in the materials of the Personnel System:

With whom can I conclude a student agreement?

An organization can enter into two types of apprenticeship agreement - for retraining a specialist and for professional education.

A contract for vocational training can be concluded both with employees on the staff of the organization and with citizens looking for work (applicants). The retraining agreement is concluded only with employees of the organization.

As a general rule, the total time of training and work should not exceed 40 hours per week (Art., Labor Code of the Russian Federation). However, there are exceptions to this rule. For example, an employee’s training and work time cannot exceed 35 hours if:

If the student is not yet 16 years old, then his time of study and work cannot be more than 24 hours a week. This is stated in Article 92 of the Labor Code of the Russian Federation.

How to draw up a student agreement and what conditions to include in it

A student agreement with an employee is additional to the employment contract ().

An apprenticeship agreement is necessary to insure the organization against the risk of wasting funds. For example, after completing his studies, the applicant will refuse to enter into an employment contract, or a full-time employee will quit without working for the time stipulated by the student agreement. In these cases, the student will be responsible for his/her studies (). If, after completing training, an employee works for the period specified in the student agreement, then he will not have to reimburse training costs.

The student agreement is concluded in writing in two copies. In it, be sure to indicate the specific profession, specialty, qualification that the student will acquire during the training process. Next in the contract, define the responsibilities of the parties. The administration of the organization must provide the student with the opportunity to study. And the student is required to undergo such training.

In addition, indicate in the contract the period during which the student is obliged to work in the organization in the acquired profession, specialty, qualification, after the expiration of which it is considered that he has worked the entire cost of training.

This procedure is provided for in the Labor Code of the Russian Federation.

The mandatory terms of the apprenticeship agreement also apply during the apprenticeship period. This is stated in the articles of the Labor Code of the Russian Federation.

If necessary, you can include in the student agreement, if they do not contradict the law and do not infringe on the rights of the student.

A student agreement concluded with an applicant who is not an employee of the organization is not civil law, therefore the norms of civil law do not apply to it. Such a contract is also not recognized as an employment contract, despite the fact that the possibility of its conclusion is provided for by labor legislation (Article , Labor Code of the Russian Federation). A similar position is confirmed by regulatory agencies (see letters,).

In what form can apprenticeship be organized?

Apprenticeships can be organized in different forms. For example, in the form of individual, team or course training. This is stated in the Labor Code of the Russian Federation. Training can take place in the form of attending seminars, trainings, or assigning a mentor from among the organization’s experienced employees to the student.

How to pay for training and work under a student contract

During the apprenticeship period, applicants and employees are paid a stipend. Its size depends on the profession, specialty, and qualification received. In this case, the scholarship cannot be less than 1. Such rules are established in Article 204 of the Labor Code of the Russian Federation. The amount of the scholarship must be specified in the student agreement.

Attention: payment of scholarships under a student agreement

The training course may include practical training in the organization. Such work must be paid separately at the rates established by the organization. This is stated in Article 204 of the Labor Code of the Russian Federation. Labor Code The Russian Federation does not specify in which document prices should be established. Therefore, they can also be prescribed in advance in the student agreement.

Is it possible for an employee to have a probationary period when hiring if he has previously successfully completed training under an apprenticeship contract?

If the applicant successfully completed training under an apprenticeship contract and was hired, he is not allowed ().

Nina Kovyazina,

Deputy Director of the Department medical education And personnel policy in healthcare of the Russian Ministry of Health

From the answer: How to conclude a student agreement
- employee age from 16 to 18 years;
- the student employee is a disabled person of group I or II.
Answer:How to make an entry about a profession or specialty in a work book

Fill out the line “Profession, specialty” title page The work book must be in strict accordance with the wording of the education document: diploma, certificate, certificate (Instructions, approved). It indicates the profession or specialty in which the employee received his education (). For example, if an employee presented a lawyer’s diploma with a specialty in “jurisprudence,” then in the line “Profession, specialty” you need to write “law” - that is, the employee’s specialty, and not his qualifications.

As a rule, a record of profession is made to workers in blue-collar professions, and a record of specialty is made to engineering and technical workers and other workers who have graduated from professional educational organizations or educational organizations higher education(Article 11 of the Law of December 29, 2012 No. 273-FZ

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