Article 64 of the Labor Code of the Russian Federation. Guarantees when concluding an employment contract (current version)

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Published: 07/05/2016

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The labor relations that arise between an employer and an employee during the latter’s employment carry certain legal consequences .

In particular, they relate to the emergence of certain rights and obligations in relation to each other. In addition, the employee and employer receive certain legal guarantees. What they are and how they are implemented - more on this below.

• Legal guarantees: concept and purpose
• Types General
• Special

Is it possible to refuse a job from a legal point of view?

In addition to the Constitution of the Russian Federation, which reflects the labor rights and obligations of citizens in the most general form, all procedures for hiring, dismissal and various legal aspects of labor activity are regulated by the Labor Code, where each of these points is described in detail.

The inalienable right to select and hire workers based on the goals of “effective economic activity and rational property management independently, under their own responsibility” is assigned to employers by the Resolution of the Supreme Court of the Russian Federation. This includes all actions of the employer in relation to the company’s employees: personnel selection, dismissal and reduction, personnel changes, conclusion and termination of employment contracts with employees.

In practice, employers and HR managers select applicants not only by business qualities, education and level of professional skills, but also by personal characteristics. To ensure that the selection and hiring of personnel does not turn into absolute arbitrariness of the employer, and that refusals to hire are made justifiably, there are a number of legislative acts.

The requirements that an employer, according to the law, may impose on applicants for a particular vacancy must be directly related to the fulfillment of job requirements and functions. This is professional experience in this field, appropriate education and knowledge, skills, and sometimes the presence of certificates confirming qualifications.

Unreasonable refusal to hire an applicant is expressly prohibited by Article 64 of the Labor Code of the Russian Federation. The refusal must be clearly formulated and contain precise specific justifications as to why the candidate cannot be hired. These reasons are listed in the following regulations:

• Art. 63 Labor Code of the Russian Federation (age limits);
• Art. 65 of the Labor Code of the Russian Federation (list of documents that a citizen must present when applying for a job to conclude an employment contract);
• Art. 253 of the Labor Code of the Russian Federation (types of work and professions for which women are not allowed);
• Art. 265 of the Labor Code of the Russian Federation (specialties and work prohibited for persons under 18 years of age);
• Art. 266 of the Labor Code of the Russian Federation (mandatory medical examinations for minor workers);
• Art. 44 and 47 of the Criminal Code of the Russian Federation (prohibition on certain types of labor activity and filling positions by court decision).

During the trial period

Article 70 of the Labor Code of the Russian Federation gives employers the opportunity to schedule an employment test, during which the competencies of a new employee can be tested. If they do not comply with the company’s requests, the employee is dismissed under a simplified notification procedure.

In this case, the citizen has the right to count on the following:

• the probationary condition will be specified in the employment contract. If this condition is not included in the contract, the employee is hired without testing;
• a specific test period is provided - no more than three months. The administration has no right to extend the period;
• dismissal of an employee during the probationary period must be preceded by at least three days' notice;
• justification for dismissal;
• if the employee does not agree with the dismissal, he has the right to challenge it in court.

Unreasonable refusal to hire

The types of groundless refusals are listed in Art. 64 Labor Code of the Russian Federation. It is prohibited to refuse a job applicant:

• without giving any reasons for this decision;
• discriminating against a potential employee on one or another basis;
• if the applicant is transferred from one position to another;
• due to pregnancy.

Having been refused employment, a candidate has the right to demand a written justification for this decision - without this document, protecting his rights through the court will be impossible.

Summarizing all this, we can draw a general conclusion about what reasons for refusal to hire are legal and justified:

• the applicant's lack of knowledge, qualifications, professional experience and other characteristics necessary to carry out work in his chosen position;
• failure by a potential employee to comply with the requirements determined by law.

Let's give an example from life. A person with an education in economics and finance applies for a position as a civil engineer and is refused the job. This employer's decision is absolutely logical and legal. Or, for example, a minor teenager wants to work in a hazardous industry, but he is not accepted, since this would be a clear violation of the law.

As for non-compliance with job requirements for professional and business qualities, everything is somewhat more complicated here, because these concepts are not clearly defined anywhere and remain, in fact, outside the law, so each employer or personnel officer interprets them in their own way.

The following grounds for refusal to hire are clearly illegal:

• Age limits (except for legal restrictions regarding the employment of minors). It is quite difficult for citizens over 50 to get a job, since this age group is simply eliminated when choosing candidates. But the decision to refuse employment can be appealed if there is a document recording this reason.
• Features of appearance. Neither body structure nor appearance can be reasons for not giving a person a job. The exceptions are professions where appearance is part of the job (for example, modeling, show business, beauty industry), and positions related to customer service and representative functions (secretaries), where it is simply necessary to look good.
• Having a criminal record in the past. This may be an obstacle only in some types of activity - in law enforcement, accounting - but does not interfere with working in other areas, so refusing to hire because of a criminal record is illegal.
• Pregnancy. Refusal to hire pregnant women, as well as their dismissal, are a violation of the law and face serious fines if the applicant can prove that the reason for the refusal was her condition.
• Unpaid bank loans. Many employers, especially large enterprises, are interested in the credit histories of candidates for vacancies, and this in itself is not prohibited. But an applicant who has large debts or outstanding loans may be rejected.
• Private business. The fact that a person was once engaged in entrepreneurial activity does not make him unsuitable for employment. Refusal to hire for this reason is justified only if he continues to engage in this activity.
• Having a disability. Refusal to disabled people is legal only in cases where working conditions may pose a danger to their health, but the status of a disabled person (of any group) in itself cannot be a legal reason not to hire him.
• Discrimination based on race, nationality, language group, skin color, etc.

During the internship

According to the Labor Code of the Russian Federation, internship means work related to obtaining professional education or advanced training and aimed at obtaining practical knowledge.

A trainee is an employee who receives education in the organization’s profile. Employment contracts are concluded with trainees, however, in accordance with paragraph. 9 tbsp. 59 of the Labor Code of the Russian Federation, it is permissible to conclude fixed-term contracts. Since the intern is recognized as an employee with equal rights, he is entitled to the same guarantees when hired, the intern’s employment contract must contain the conditions of his future work, for example, work and rest hours and wages.

IMPORTANT!

The intern's work must be paid; the concept of unpaid internship is not provided for by law.

Procedure for unjustified refusal

The right to appeal in court an employer’s decision to refuse employment is reserved to every able-bodied citizen of the Russian Federation (see Part 6 of Article 64 of the Labor Code of the Russian Federation). Such situations are considered by district courts of the constituent entities of the Russian Federation within three months from the date of receipt of an unfounded refusal by the applicant. Other government agencies - for example, the state labor inspectorate - do not deal with such matters because they do not have the appropriate powers.

Having received a refusal to hire, which you consider unlawful, you can file a claim in court, demanding recognition of the illegality of the refusal, restoration of violated rights, compensation for moral or material damage due to the employer’s decisions. In addition to the requirements, this application must clearly and consistently describe the circumstances of the employment that ended in refusal.

As for the requirements, the defendant can be obliged to:

• compensate moral damages to the applicant for the position;
• compensate the applicant for expenses and losses incurred during the employment process (lost earnings that he lost during his interaction with the employer, payment of state duties, etc.);
• ultimately, hire this candidate and conclude an employment contract with him.

The plaintiff is not obliged to demand the fulfillment of all three points at once and, of course, will not be forced to find employment in an organization in which he no longer wants to work (which is not surprising after everything that happened).

However, in any case, the employer must compensate for moral damage to the candidate for the position against whom discrimination was shown. This provision is enshrined in labor legislation and must be implemented in any case where the fact of refusal to hire due to discrimination has been established.

When filing a lawsuit in a case related to an unlawful refusal to hire, you will need to pay the appropriate fee. Persons looking for work are officially unemployed and, as a result, cannot enjoy the benefits that working citizens have. If the court satisfies the plaintiff’s demands, then the court fee will be added to the applicant’s employment expenses, and the employer will have to compensate for this too.

Winning a case involving unjustified denial of employment and discrimination in the labor market is not easy. Claims for discrimination are considered in a general manner without any exceptions, and each party to the conflict undertakes to independently prove all the circumstances to which it refers, documenting its claims and objections.

Therefore, you should make sure that you have strong evidence of violation of the law when refusing to hire. First of all, such evidence includes a written refusal from the employer listing the reasons that impede the candidate’s employment in the chosen position. Without this document, the plaintiff’s position will be very unstable, and his chances of winning the case are extremely low.

Legislative framework for 2021

The rights of a Russian citizen are enshrined in normative documents and regulated. When applying for a job, you can rely on legislative documentation that protects the rights of workers when registering with a labor organization:

• Art. 64 of the Labor Code of the Russian Federation stipulates guarantees for Russian citizens when applying for a job.
• Article 3 of the Labor Code of the Russian Federation prohibits discrimination in the labor sphere and guarantees protection from infringement of rights in court.
• Article 7 and Article 38 of the Constitution of the Russian Federation provide state support and protection of mothers, family rights, and childhood.
• Article 145 of the Criminal Code of the Russian Federation does not allow unreasonably denying employment to a woman during pregnancy or with a child under three years of age.

Important legal norms in the field of labor legislation at the international level were adopted by the Geneva Convention No. 111 of the International Labor Organization (ILO) “Concerning Discrimination in Employment and Occupation” (1958)

Justified refusal to hire

The validity of a refusal to hire a person is the compliance of the reasons for the refusal with the norms of the law. But there are a number of categories of citizens who are not subject to any reasons for refusal of employment, and the employer is obliged to hire them in any case:

• these are citizens who began working in positions even before the official signing of the employment contract;
• persons who were assigned to this work by a court decision;
• employees transferred from other organizations;
• candidates for vacancies who have passed all stages of competitive selection;
• citizens appointed to this position by authorized bodies.

Refusal to employ these categories of the population is prohibited by the laws of the Russian Federation.

Legitimate reasons for refusal to hire include:

• low qualifications (confirmed by relevant documents - diplomas, certificates, etc.), actual lack of professional knowledge and experience;
• minor age (less than 16 years, and for work in harmful and difficult conditions - less than 18 years) - see Art. 63 Labor Code of the Russian Federation;
• physical parameters that are not suitable for this type of work (for example, work with heavy loads for women);
• medical contraindications for any type of work;
• prohibition of hiring for any period of time (noted by an entry in the work book);
• refusal of a potential employee to provide the documents necessary for the employment procedure (Article 65 of the Labor Code of the Russian Federation).

If an applicant for a vacancy has passed all the necessary stages of selection (interview, medical examination, test assignments, competition, etc.) and turns out to be unsuitable, in the opinion of the employer, for the position, it is necessary to correctly formalize the refusal to hire - in writing form and in compliance with all rules. Any unsuccessful employee who responded to a vacancy and was rejected by the employer has the right to demand a written refusal, in accordance with Part 5 of Art. 64 Labor Code of the Russian Federation. And this document must be provided to him upon his request within one week.

A letter of refusal to hire must contain the following details:

• name of the enterprise or organization;
• printing (corporate or HR department);
• signature of the person responsible for hiring employees - the head of the company, the head of the relevant department or HR department.

Then the reasons for the refusal to hire this applicant should follow (Article 64 of the Labor Code of the Russian Federation). This is the most important part of the document and must be drafted with the utmost care, avoiding any language that suggests discrimination. If a vacancy is applied for by a person whom the employer does not have the right to hire for this job, this must be mentioned and the relevant provision of the law referred to.

If an employer cannot justify its refusal to hire a particular applicant, then such a refusal is not justified and can be used as a basis for a lawsuit.

Legislative protection of workers

It is workers who are the target group to which almost all provisions of the current labor legislation are directed. The main guarantees by which their rights are protected include:

• prohibition of discrimination based on nationality, age, race, gender, etc.;
• the right to receive from the employer a written justification for refusal to hire;
• the possibility of voluntarily making a decision regarding the conclusion of an employment contract;
• the right to receive complete and reliable information regarding future operating conditions (responsibilities, wages, work hours).

In the event of an unreasonable refusal to conclude an employment contract or in the presence of other violations on the part of the employer, the applicant has the right to appeal his actions. This can be done either by filing a complaint with the labor inspectorate or by going to court.

Fines for late wages in 2021 will be increased. What is the procedure for terminating a deceased employee? Read more about this in our article. Often employees want to resign during a probationary period. How to do it correctly, read here.

Guarantees upon signing the contract

Some data

In Russia, young professionals with no work experience and people of pre-retirement age are most often discriminated against. Also very often affected are girls who have recently become mothers or are planning to have children in the near future.

Employment contracts may have different durations. Depending on this criterion, they are divided into 2 groups:

1. Signed by the parties for an indefinite period.
2. Urgent (the period of their validity is determined).

A fixed-term employment contract can be concluded in the following situations (the legislator provides an exhaustive list of cases):

• Seasonal work;
• Activities that are not the company’s specialization;
• Replacing an absent employee (for example, when he is on vacation);
• Part-time activities;
• Admission of a full-time student;
• Employment of managers (their deputies).

In all other cases, an employment contract is signed for an indefinite period. If an employer offers to conclude a fixed-term contract without a reason, this violates the rights of the employee. This is due to a simplified dismissal procedure and deprivation of social assistance to the employee.