How to hire an employee of retirement age?

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Published: June 26, 2016

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Every Russian citizen of retirement age has at least once thought about continuing to work after retirement, if he is able to work.

Thus, the choice of profession and field of activity is the right of every person, including pensioners, enshrined in the Constitution of the Russian Federation (Article No. 3 of the Labor Code of the Russian Federation). An employer who selects personnel for a company or enterprise does not have the legal right to discriminate against a person because of his age, which means that people of retirement age have the same right to work as other citizens of the country.

The first priority when considering this issue is to turn to Russian legislation. In this case, we will need the latest edition of the Labor Code of the Russian Federation (dated December 30, 2015). Article 59 of the Labor Code of the Russian Federation states that persons of retirement age (women over 55 and men over 60), as well as those who, for health reasons, cannot perform certain work for a long time, can get a job only on the basis of a fixed-term contract (up to five years), i.e. for a certain time specified in the contract.

It is important to know that the payment of old-age labor pension continues even to working pensioners; this is enshrined in the federal law “On Labor Pensions in the Russian Federation” (Article No. 18)

The conditions for employment are the same as for citizens who are not of retirement age. A person of retirement age must be able to work due to health reasons, and must also meet the basic requirements for employment in a particular company or enterprise. It is impossible to refuse employment because of age due to Art. 3 of the Labor Code of the Russian Federation, which gives the right to work to every able-bodied citizen.

Age is an exception only in a few cases:

• You can serve in the civil service for up to sixty years, with the right of extension up to sixty-five years.
• A person holding the position of rector, as well as vice-rector, head of an institute in state and municipal universities must be no older than sixty-five years.

Upon reaching this age, employees occupying the positions listed above will be transferred, with their consent, to other positions that they may occupy by law and circumstances. That is, they will not dismiss people based on age.

• The process of hiring a pensioner
• Features of hiring
• Features of hiring under a fixed-term employment contract

Necessary documents for hiring a pensioner

A retired employee has the same rights when applying for a job as any other person applying for this position who has not reached retirement age.

• When concluding an employment contract, he must present (Article 65 of the Labor Code of the Russian Federation): a passport or other document identifying him;
• work book;
• insurance certificate of state pension insurance (exception - loss of such a document);
• military registration documents (for pensioners liable for military service);
• document on education, qualifications or special knowledge (to be presented by a pensioner who enters a job that requires special knowledge or special training).
• Tax registration (TIN certificate if available).

In some cases (taking into account the specifics of the work), the employer may request other additional documents necessary for it.

Is it possible to refuse employment?

Refusal is possible, but only if the employee’s retirement or pre-retirement age does not correspond to the position, lack of experience for some professions, lack of necessary documents for employment, or if there are medical contraindications.

A person’s age should not impose restrictions on registration with an organization; for refusal, the employer may be held administratively liable.

If a working employee reaches retirement age, he has the right to continue working under the same conditions; the employer cannot fire him on his own initiative. A person can only voluntarily leave work.

Types of employment contracts

A pensioner can be hired for a permanent or temporary job, and he can also combine several jobs. Let's consider what contracts can be concluded with pensioners:

1. A fixed-term contract is concluded only by agreement of the parties for a certain period and is limited by an end date. Since the conclusion of this agreement may be considered as discrimination of retirement age.
2. Indefinite contract - concluding an indefinite employment contract with a pensioner is no different from concluding one with any other employee. The Labor Code does not provide for any special conditions.
3. Employment contract on part-time work - part-time work must be performed in free time from the main job, and therefore the current employer should not worry about what the employee does in his free time. Moreover, the employee has the right to take on several part-time jobs; the Labor Code of the Russian Federation does not limit the employee in this matter.
4. A civil contract is concluded with freelancers. Freelance employees are workers whom the employer hires to perform a certain amount of work, to provide certain services for a certain period of time. Such employees are not included in the staff of the enterprise and no employment contract is concluded with them.

If an employee working for you reaches retirement age, but wishes to continue working, you do not need to take any special actions (for example, renew the contract). The current agreement simply continues to be in force. You do not have the right to fire an employee just because he is a certain number of years old.

Important: If the nature and conditions of work make it possible to conclude an open-ended contract, the employer does not have the right to do the opposite, because This is an administrative violation and leads to financial liability in the form of a fine.

Can an employee of retirement age work?

Currently, the old age pension age is 55 years for women and 60 years for men. However, this age will increase in the coming years.

In order for a citizen to be considered a pensioner, he must not only have the required age, but also documentary evidence of this. Moreover, the document confirming the status in this case is not a passport, where the date of birth is indicated, but a pension certificate and the fact of pension accrual.

Since 2015, after the pension is transferred to the insurance part, certificates are not issued, but if necessary, a certificate is provided confirming the fact of the assignment of an old-age pension.

If an employee works and reaches retirement age, he can resign at his own request and go on legal rest, or continue to work under the same conditions.

An employer does not have the right to fire a pensioner from work.

Regardless of which path a person chooses, he is entitled to receive an old-age pension. At the same time, it is not the employer, but the employee himself, who prepares the necessary paperwork for assigning a pension to the Pension Fund.

If a pensioner does not work, but wants to get a job, then he has every right to do so. If a job does not have specific mandatory age restrictions, then the employer should not infringe on the rights of an applicant simply because of his age.

The procedure for hiring a pensioner

The procedure for accepting a pensioner is identical to the standard process for employing an employee

The procedure for hiring a pensioner includes:

1. collecting the necessary documentation for drawing up an employment agreement;
2. concluding an employment contract with a pensioner;
3. preparation of an employment order in the T-1 form;
4. creating and filling out a personal T-2 card;
5. familiarity with internal regulatory documentation relating to job descriptions, labor regulations, instructions on labor protection and safety in the workplace, as well as other local acts relating to the employee’s activities;
6. conducting initial and on-the-job training.

In some cases, a pensioner will be required to apply for a job; it is not a mandatory document for hiring a person, but in some cases it is required by the employer to ensure proper document flow.

Peculiarities of registration for work of pensioners

An employer is not obliged to hire a person of retirement age if Russian legislation provides for age restrictions for certain professions or positions:

A pensioner has the right to receive additional days of unpaid leave during work; otherwise, no specific features of the pensioner’s work process are provided. He can be given full financial responsibility, sent on a business trip, have an irregular working day established with his consent, or be instructed to do work overtime.

The pensioner continues to receive a pension - this right does not depend on the fact that the pensioner is employed. The only thing that a working person of retirement age is limited in is that his pension does not increase due to the inflationary process.

Nuances of employment agreements

In what cases can you conclude a fixed-term employment contract with an old-age pensioner?
The conclusion of a fixed-term employment contract is provided for in cases where the work provided is temporary or seasonal.

This requires the consent of both parties: the employer and the employed pensioner (Part 2, Article 59 of the Labor Code of the Russian Federation).

Unilaterally, at the initiative of the employer alone, a fixed-term contract with a pensioner cannot be concluded, because upon its completion, the citizen has the right to appeal to the court, which, most likely, will recognize the contract as unlimited.

In cases where the nature and conditions of work make it possible to conclude an open-ended contract, the employer does not have the right to do the opposite, because This is an administrative violation and leads to financial liability in the form of a fine.

It is the employer's responsibility to explain pay and provide leave. It is based on the calculation of two days per month of work. Or compensation for unused vacation.

A probationary period when drawing up a fixed-term contract is provided, but only if the work period is at least two months. Otherwise, the appointment of a probationary period is illegal. The conditions for its establishment are provided for in Article No. 70t of the Labor Code of the Russian Federation.

These include the following:

• the probationary period is established only by agreement of both parties;
• its terms must be included in the employment contract.

Pensioners are assigned the same probationary period as other categories of citizens, not counting those who are not subject to a test when hiring.

Hiring a pensioner is carried out in accordance with labor legislation. Legislation provides for pensioners the benefits of vacation leave upon dismissal. When applying for a job with a person of pension status, one of the established types of contracts is concluded:

• Perpetual, having an unlimited period of validity.
• Urgent, limited by an end date.
• Part-time work concluded in the presence of a main place of employment.
• A contract issued for the performance of economic and similar work.
• Civil law nature (GPC), used to implement a specific task within a limited period.

The type of contract is determined by agreement of the parties. When choosing, the principle of equal rights of citizens is implemented. To conclude certain types of agreements, a basis is required - the presence of special conditions, for example, replacing an absent employee for external part-time contracts.

When hiring a pensioner, the employer entered into an agreement in the form of a GPC. Job responsibilities were not temporary in nature with a specified duration and scope. By concluding a form of agreement in the form of GPC, the employee is deprived of a number of benefits, and the employer receives illegal benefits. Conclusion: the employer violated labor laws. The employment procedure may be challenged in court.

The process of drawing up an employment agreement if the applicant reaches retirement age will be standard.

Probation

The possibility of establishing a probationary period when hiring is provided for in Art. 70 of the Labor Code. You can test a pensioner. Pensioners are not included in the list of persons for whom no employment test is imposed. This means that general rules apply to them. The duration of the test depends on the type of contract concluded, which are presented in the table:

Responsibility for violations

If the parties do not draw up any agreement and do not make entries in the work book, they are breaking the law, as established in Government Decree No. 225 of 2001.

Article 5.27 of the Code of Administrative Offenses defines fines that range from one thousand to 50 thousand rubles. For repeated violations, an amount of 10 to 70 thousand rubles will be charged. For the third time, the manager’s qualifications are removed.

Some employers try to include clauses of the employment contract into the civil contract. For example, for performing certain services or concluding a document of an author's order. These violations can be identified by the tax service after a complaint received from a citizen.

A person can, through the court, obtain recognition of a civil law contract as an employment contract if the first contains the relevant provisions. Many employers simply change the name of the document in order not to bear the liability defined by the Russian Labor Code.

Working hours and working conditions

The working hours for pensioners can be flexible and depend on what job the pensioner is applying for. Full working time. Normal working hours should not exceed 40 hours per week (Part 2 of Article 91 of the Labor Code of the Russian Federation). This applies to permanent, temporary and seasonal workers, as well as workers hired for the duration of certain work.

Pensioners are not among the persons for whom the employer is obliged to establish such a working time schedule in accordance with Part 1 of Art. 93 of the Labor Code. But this is possible at the request of a working pensioner. However, part-time working hours can also be established at the initiative of the employer.

Wages for pensioners working part-time are calculated in proportion to the time actually worked or depending on the amount of work they perform (for piecework wages)

Leave for working pensioners

Working pensioners have the right to annual paid leave, like all employees. It is provided to pensioners according to the general rules - for a duration of 28 calendar days. Some categories are entitled to guarantees in the form of extended basic annual leave (part two of Article 115 of the Labor Code of the Russian Federation). For example, the duration of the annual leave of a disabled pensioner must be at least 30 calendar days.

In addition, in certain cases, employees are guaranteed additional paid leave. For example, those who work in the Far North. Certain categories have the right to take annual paid leave at any convenient time. These are participants of the Great Patriotic War, combat veterans, etc.

At the written request of an old-age pensioner employee, the employer is obliged to provide him with leave without pay for up to 14 calendar days a year. If an older worker is disabled, then up to 60 calendar days a year, regardless of the disability group. In this case, the type of employment contract concluded does not matter.

Benefits and advantages of a working pensioner

The rights of a working pensioner are similar to the rights of any other employee. At the same time, workers of retirement age have some benefits and advantages:

• Labor law prohibits age discrimination against employees. Retired status cannot serve as a basis for dismissal or non-hiring.
• Working retirees tend to be more skilled workers. In the event of dismissal due to staff reduction, employees with higher qualifications have a priority right not to be dismissed.
• The employer is obliged to provide a working pensioner with extraordinary leave of up to 14 days without pay.
• When resigning voluntarily, a pensioner does not have to work the required two weeks.