Topic 3.1.2. Features of drawing up an employment contract.

An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified job function, provide working conditions provided for by labor legislation and other regulatory legal acts, pay the employee wages on time and in full, and the employee undertakes personally perform the labor function determined by this agreement, comply with the internal labor regulations in force for this employer (Article 56 of the Labor Code of the Russian Federation) (hereinafter referred to as the Labor Code of the Russian Federation).

An employment contract is equally necessary for both the employee and the employer, since it is the most important tool for protecting the company in the event of a conflict with the employee.

Registration of an employment contract

According to Article 57 of the Labor Code of the Russian Federation, the employment contract specifies:

• surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract;
• information about documents proving the identity of the employee and the employer - an individual;
• taxpayer identification number (for employers, with the exception of employers - individuals who are not individual entrepreneurs);
• information about the employer’s representative who signed the employment contract and the basis on which he is vested with the appropriate powers;
• place and date of conclusion of the employment contract.

How to conclude a contract with an employee

The GPA is concluded in writing between the customer and the contractor. An individual entrepreneur’s contract with an employee based on a standard form, based on the characteristics of the services ordered.

Download a Sample Individual Entrepreneur Agreement with an Employee (25.8 KiB, 2,928 hits)

The sequence of how to register an employee under a civil contract is as follows:

1. Indicate the date of conclusion and the name of the document.
2. Enter the details of the customer.
3. Describe the nature of the proposed work.
4. The amount of remuneration is fixed.
5. Enter information about the performers.

At the end of the document, the parties put signatures, and upon completion of the work, the acceptance certificate is signed.

For the period of validity of the document, the performer is recognized as part of the workforce, however, such employment under a civil law contract is not considered personnel records management and is not recorded according to labor law.

Mandatory terms of the employment contract

• place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another area - place of work indicating the separate structural unit and its location;
• labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; specific type of work assigned to the employee);
• the date of commencement of work, and in the case where a fixed-term employment contract is concluded, also its validity period and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code of the Russian Federation or other federal law;
• terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);
• working hours and rest hours (if for a given employee it differs from the general rules in force for a given employer);
• guarantees and compensation for work under harmful and (or) dangerous working conditions, if the employee is hired under appropriate conditions, indicating the characteristics of working conditions at the workplace;
• conditions that determine, in necessary cases, the nature of the work (mobile, traveling, on the road, other nature of work);
• working conditions in the workplace;
• condition on compulsory social insurance of the employee in accordance with the Labor Code of the Russian Federation and other federal laws;
• other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.

It should be noted that failure to include mandatory conditions in an employment contract is not a basis for recognizing the employment contract as not concluded or for its termination. However, such a deficiency entails the imposition of administrative liability on the employer in the amount determined by Article 5.27 of the Administrative Code.

If it turns out that the employment contract omitted conditions that must necessarily be included in it, then it is necessary to sign an additional agreement, which will become an integral part of the contract. In this case, the employee additionally signs for receipt of his copy of the document on the employer’s copy (Article 67 of the Labor Code of the Russian Federation).

Areas of activity requiring mandatory medical examination

• public catering;
• food trade;
• healthcare;
• education;
• transport industry.

Categories of persons required to undergo a medical examination

• citizens under 18 years of age ;
• workers whose work takes place in hazardous industries, in dangerous conditions;
• shift workers;
• job seekers for work in the Far North.

Important: This list is not complete and is subject to relevant regulations.

Local regulatory documents are divided into basic (for each organization) and additional (required for review if available).

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Check list: check your organization’s employment contracts

Let us dwell in more detail on how to formulate some mandatory terms of an employment contract in order to minimize the risks of bringing the employer to administrative liability and the emergence of labor disputes.

1. Place of work.

Since the law does not define the place of work, it is often confused with the concept of “workplace”. It is necessary to distinguish between these concepts. Place of work is a specific organization with which the employee has an employment relationship (this condition must be included in the employment contract). While a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer (Part 6 of Article 209 of the Labor Code of the Russian Federation). The workplace clause does not have to be included in the employment contract.

Specifying a workplace in an employment contract has both its pros and cons. So, if an employee is absent from the workplace, it will be easy to record the fact of absenteeism. In this case, the court will proceed from where the employee should have appeared (Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation”).

On the other hand, if the employment contract specifies a specific workplace (for example, Moscow, Shabolovskaya street, building 20, office 25), then transferring an employee to another office or structural unit is possible only with his written consent in accordance with Article 72 Labor Code of the Russian Federation or through the procedure for changing the terms of the employment contract provided for in Article 74 of the Labor Code of the Russian Federation. The absence of a workplace clause in an employment contract allows an employee to be moved to another office within the same locality without his consent, if other conditions of the employment contract do not change (Part 3 of Article 72.1 of the Labor Code of the Russian Federation).

2. Labor function.

In accordance with Article 57 of the Labor Code of the Russian Federation, the labor function must be specified in the employment contract. In this case, the labor function is understood as work in the position for which the employee is hired. Therefore, it is not at all necessary to specify in detail all the employee’s responsibilities in the contract. They may be specified in the job description.

At the same time, quite often when opening an employment contract, we see the following wording in it: “The employee undertakes to conscientiously fulfill the duties provided for in the job description, which is an integral part of the employment contract.”

Thus, if the job description is an integral part of the employment contract, then any clarification or specification of the employee’s job responsibilities is possible only with his consent. This point of view is also shared by Rostrud in its letter dated October 31, 2007 No. 4412-6: “If the instruction is an annex to the employment contract, it is advisable to simultaneously make changes to the employment contract and job description by preparing an additional agreement. If the job description was approved as a separate document and changes to it do not entail the need to change the mandatory terms of the employment contract, it is most convenient to approve the job description in the new edition by familiarizing the employee with it in writing.”

3. Terms of payment

According to Article 57 of the Labor Code of the Russian Federation, all conditions of remuneration are subject to mandatory inclusion in the employment contract, including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments.

At the same time, the employer must be prepared for the fact that the inclusion in the employment contract of the following typical wording: “the employer pays the employee an official salary in the amount of ______, as well as a bonus in the amount of 25% of the official salary” may cause a conflict between him and the employee. This wording means that the bonus is a mandatory part of the salary and the employer cannot fail to pay it to the employee, even if he believes that the employee did not work hard enough in a given month.

If an employer wants the wages of his employees to consist of an official salary and a bonus, the payment and amount of which would depend on the professional achievements of the employee, then it is important to clearly state in the employment contract that the employer has the right (and not the obligation) to pay the bonus, in detail The procedure for paying bonuses can be prescribed in a local regulatory act, for example, a regulation on bonuses. Rostrud, in its letter dated March 19, 2012 No. 395-6-1, considers the presence of a reference to a local regulatory act or a collective agreement providing the grounds and conditions for the payment of additional payments, allowances and incentive payments due to the employee as legal. However, in this case, the employee must be familiar with the content of local regulations and the collective agreement against signature.

One more question: is it necessary to indicate the days of payment of wages in the employment contract, or will it be sufficient if these dates are defined in the internal labor regulations or the collective agreement?

Here it should be said that the state labor inspectorate takes the position that the days of payment of wages must be indicated in the employment contract, and in the internal labor regulations, and in the collective agreement (if there is one in the organization). The courts, however, often do not share this position of the state labor inspectorate. However, in order to avoid disputes with the labor inspectorate, which require a lot of time and money, it is better to duplicate the date of payment of wages in the employment contract.

At the same time, an indication in the labor contract for the period during which wages are paid (for example, wages are paid no later than the fifth and twentieth of the month) is a violation of labor legislation, in accordance with Part 6 of Article 136 of the Labor Code of the Russian Federation (decision of the Leningradsky Regional Court No. 7-685/2012 dated 09/05/2012, appeal ruling dated 09/05/2012 in case No. 33-2867-2012).

When determining specific dates in an employment contract, the employer must take into account that there should be no more than 15 days between the dates of payment of wages, otherwise the employer may be held liable for delay in payment of wages (Part 6 of Article 136 of the Labor Code of the Russian Federation).

Important: if an employer enters into an employment contract with a foreign citizen or stateless person, then in addition to the conditions provided for in Article 57 of the Labor Code of the Russian Federation, it must necessarily include information about:

• work permit or patent issued in accordance with the legislation on the legal status of foreign citizens in the Russian Federation, with the exception of cases established by federal laws or international treaties of the Russian Federation - when concluding an employment contract with a foreign citizen or stateless person temporarily staying in the Russian Federation ;
• temporary residence permit in the Russian Federation, issued in accordance with the legislation on the legal status of foreign citizens in the Russian Federation, with the exception of cases established by federal laws or international treaties of the Russian Federation - when concluding an employment contract with a foreign citizen or person temporarily residing in the Russian Federation without citizenship;
• a residence permit issued in accordance with the legislation on the legal status of foreign citizens in the Russian Federation, with the exception of cases established by federal laws or international treaties of the Russian Federation, when concluding an employment contract with a foreign citizen or stateless person permanently residing in the Russian Federation.

In addition, it is mandatory to include in an employment contract with an employee who is a foreign citizen or stateless person temporarily staying in the Russian Federation, with the exception of cases established by federal laws or international treaties of the Russian Federation, a condition indicating the grounds for providing such employee with medical care during the period validity of the employment contract, including details of the contract (policy) of voluntary medical insurance or an agreement concluded by the employer with a medical organization on the provision of paid medical services to such an employee (Article 372.2 of the Labor Code of the Russian Federation).

4. Additional terms

In addition to the mandatory ones, the Labor Code provides for the possibility of including optional conditions in the employment contract.

Thus, an employment contract may provide for additional conditions that do not worsen the employee’s position in comparison with established labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, in particular:

• on clarification of the place of work (indicating the structural unit and its location) and (or) the workplace;
• about the test;
• on non-disclosure of secrets protected by law (state, official, commercial and other);
• on the employee’s obligation to work after training for no less than the period established by the contract, if the training was carried out at the expense of the employer;
• on the types and conditions of additional employee insurance;
• on improving the social and living conditions of the employee and his family members;
• on clarification, in relation to the working conditions of a given employee, of the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms;
• on additional non-state pension provision for employees.

As we can see, the range of additional conditions included in the employment contract is very large, and by wisely using the opportunities provided by law, the employer can comply with the requirements of the law and at the same time protect his rights.