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GUARANTEES WHEN CONCLUDING AN EMPLOYMENT CONTRACT

In accordance with Art. 64 of the Labor Code of the Russian Federation, it is prohibited to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children.

In practice, the following situations often arise. When a woman is hired, she does not report her pregnancy or the presence of children, then these facts are clarified and the employer tries to dismiss such a woman on the basis of paragraph 11 of Art. 81 of the Labor Code of the Russian Federation, since she provided false information when concluding an employment contract. In this case, the employer should be aware that dismissal at the initiative of the employer on the basis of clause 11 of Art. 81 of the Labor Code of the Russian Federation can be made provided that the valid information and documents that the employee was required to submit could affect the conclusion of an employment contract or be the basis for refusing to conclude it.

For example, if, when applying for a job requiring special education in accordance with the law, an employee presented a false document certifying the presence of such education, then if this circumstance is discovered, the employer has the right to dismiss him under paragraph 11 of Art. 81 of the Labor Code of the Russian Federation. If the accuracy or inaccuracy of the information and documents provided by the employee in itself cannot serve as a basis for refusing employment, dismissal under paragraph 11 of Art. 81 of the Labor Code of the Russian Federation would be unlawful.

In addition, the employer should be aware that refusal to hire a pregnant woman and a woman with children is subject to administrative and criminal liability.

Yes, Art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides that violation of labor and labor protection legislation entails the imposition of an administrative fine on officials in the amount of 5 to 50 times the minimum wage.

Article 145 of the Criminal Code of the Russian Federation establishes criminal liability for unjustified refusal to hire a pregnant woman and a woman with children under the age of 3 years. As a punishment for this crime, the court may impose a fine of up to 200 thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to 18 months, or compulsory work for a period of 120 to 180 hours.

First of all, it should be noted that some employers are still trying to conclude with employees (especially with women who perform the duties of a secretary, cleaning lady) not labor contracts, but civil law contracts (contracts, paid services). In this case, such employees should be aware that if they agree to the terms of a civil law contract, they will not be covered by the guarantees and compensations established by labor legislation.

A special case of the conclusion of such contracts are the so-called labor agreements.

It should be noted that neither the former Labor Code of the Russian Federation nor the current Labor Code of the Russian Federation provide for such a form of registration of labor relations. These agreements are characterized by the fact that they include both the norms of labor legislation and civil law (for example, all kinds of fines are introduced for violation of duties by an employee). At the same time, such agreements are concluded, as a rule, for a certain period (for 3 months, for 6 months, for a year), after which the agreement is terminated.

Thus, improper registration of labor relations deprives the employee of the entire range of labor guarantees and compensations provided for by labor legislation (for example, sick leaves are not paid, vacations are not granted, involvement in overtime work is not paid in the prescribed amount). In such cases, the employee may apply to the court for protection of their rights. So, according to Art. 11 of the Labor Code of the Russian Federation, if it is established in court that a civil law contract actually regulates labor relations between an employee and an employer, the provisions of labor legislation apply to such relations.

CONCLUSION OF A TERM EMPLOYMENT CONTRACT

Article 58 of the Labor Code of the Russian Federation establishes the conditions under which a fixed-term employment contract can be concluded, namely when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation.

Practice shows that employers often seek to replace employment contracts concluded for an indefinite period with fixed-term employment contracts in order to dismiss the employee at the end of the term.

It should be noted that earlier in Art. 17 of the Labor Code of the Russian Federation, the interest of the employee was also indicated as the basis for concluding a fixed-term employment contract, which was often abused by many employers, which led to infringement of the rights of employees, since the contract with the employee was terminated after the expiration of the term. However, now a fixed-term employment contract is concluded both at the initiative of the employer and at the initiative of the employee himself only in cases expressly permitted by Art. 59 of the Labor Code of the Russian Federation.

The conclusion of a fixed-term employment contract is a right, not an obligation for an employee or employer, each of which may initiate the conclusion of a fixed-term employment contract.

The text of a fixed-term employment contract must necessarily indicate the period of its validity and circumstance (reason) which formed the basis for his conclusion. Moreover, this reason must be indicated in accordance with those specific grounds that are listed in Art. 59 of the Labor Code of the Russian Federation.

The Labor Code of the Russian Federation limits the total duration of a fixed-term employment contract to a 5-year period. Thus, if it is established that a fixed-term employment contract with an employee was renewed several times and in total exceeded the 5-year period established by law by at least 1 day, such an agreement will be recognized as concluded for an indefinite period.

In the resolution of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2), it is also noted that when establishing during the trial the fact of the repeated conclusion of fixed-term employment contracts for a short period in order to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period.

WORK FOR WHICH THE USE OF WOMEN WORK IS LIMITED

The employer should be aware that women can not be accepted for all positions. In accordance with Part 1 of Art. 253 of the Labor Code of the Russian Federation restricts the use of women's labor in heavy work and work with harmful and (or) dangerous working conditions, as well as in underground work, with the exception of non-physical work or work on sanitary and domestic services.

In this regard, working women should pay attention to a number of circumstances, namely:

· the legislator only restricts, but does not prohibit the use of women's labor in hard work and work with harmful and (or) dangerous working conditions;

· non-physical jobs that working women can perform in jobs classified as hard work and work with harmful and (or) dangerous working conditions include work as a manager, accountant and other professionals, as well as work related to maintenance (cleaner, nurse etc.).

According to part 2 of Art. 253 of the Labor Code of the Russian Federation, it is prohibited to use the labor of women in work related to lifting and manually moving loads that exceed the maximum allowable norms for them. The list of these works and the maximum allowable norms is contained (until the approval of the new List and new norms) in the Decree of the Government of the Russian Federation of February 25, 2000 No. 162 and the Decree of the Government of the Russian Federation of February 6, 1993 No. 105.

According to the Decree of the Government of the Russian Federation of February 6, 1993 No. 105, it is prohibited to use the labor of women in work related to lifting and manually moving loads that exceed the following permissible limits:

· the maximum weight of the lifted and moved cargo (no more than 10 kg up to 2 times per hour);

· the maximum weight of the transported single cargo (up to 7 kg);

· the maximum weight of the transported cargo during the entire shift. In this case, the mass of the transported cargo includes the mass of tare and packaging.

TRANSFER TO ANOTHER JOB FOR PREGNANT WOMEN AND WOMEN WITH CHILDREN UNDER ONE AND A HALF YEARS

Article 254 of the Labor Code of the Russian Federation regulates the procedure for transferring pregnant women and women with children under the age of one and a half years to lighter work.

As follows from this article, the employer is obliged to reduce the production standards and service standards if this is provided for in the medical report and the woman has written a corresponding application. It is also important to draw the attention of working women to the fact that until the decision is made to provide a pregnant woman with another job that excludes the impact of adverse production factors, she is subject to release from work with the preservation of average earnings for all missed working days as a result of this at the expense of the employer.

The refusal of the employer to a pregnant woman to ease the working conditions for the work performed or to transfer to an easier job, and to a woman with children under the age of 1.5 years - to transfer to another job if it is impossible to perform the previous job, the working woman has the right to challenge in court okay. If the court recognizes the stated requirements as justified, it may decide to transfer the woman to another job.

In a similar manner, labor disputes are considered on other issues of ensuring favorable working conditions for pregnant women and mothers with children of early childhood (Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 1990 No. 6 “On some issues arising when the courts apply the legislation governing labor of women).

Maternity leave

In accordance with Art. 255 of the Labor Code of the Russian Federation, women, upon their application and in accordance with a medical report, are granted maternity leave of 70 (in the case of multiple pregnancy - 84) calendar days before childbirth and 70 (in the case of complicated childbirth - 86, with the birth of two or more children - 110) calendar days after childbirth with the payment of state social insurance benefits in the amount established by law.

As regards the duration of leave, it should be noted that separate legislative acts have increased the duration of leave for women. In particular, according to paragraph 7 of Part 1 of Art. 13, paragraph 8, part 1, art. 18 and Art. 20 of the Law of the Russian Federation of May 15, 1991 No. 1244-1 “On social protection of citizens exposed to radiation as a result of the Chernobyl disaster” for women exposed to radiation as a result of the Chernobyl disaster, permanently residing (working) in the territory of the zone of residence with the right to resettlement , as well as women permanently residing (working) in the resettlement zone prior to their resettlement to other areas, prenatal leave is provided for a duration of 90 calendar days with recreational activities outside the territory of radioactive contamination.

Maternity leave is granted on the basis of an employee's application and a certificate of incapacity for work issued by the relevant medical institution. Given that the duration of maternity leave is calculated in calendar days, not only working days, but also weekends and holidays are counted towards this leave. Maternity leave is included in the total and uninterrupted work experience, including the length of service giving the right to annual leave.

CHILD CARE HOLIDAYS

Article 256 of the Labor Code of the Russian Federation establishes that, at the request of a woman, she is granted parental leave until the child reaches the age of 3 years.

The specified leave is granted to the woman in full or in parts within a 3-year period and is drawn up by order of the employer. A woman has the right to interrupt her vacation at any time and return to work. In this case, she submits an appropriate application, the employer issues an order for the woman to go to work. If she is denied her previous job, the woman has the right to sue in court. Also, at any time thereafter, the woman (or other family member caring for the child) is entitled to receive such leave again.

According to part 3 of Art. 256 of the Labor Code of the Russian Federation, at the request of a woman, while on parental leave, she can work part-time or at home while retaining the right to receive state social insurance benefits. In accordance with Part 4 of Art. 256 of the Labor Code of the Russian Federation for the period of parental leave, the employee retains his/her place of work (position).

And here the attention of the employer should be drawn to the following. In practice, if a woman goes on parental leave, the employer, on the basis of Art. 59 of the Labor Code of the Russian Federation concludes a fixed-term employment contract with another employee for the duration of the woman's vacation. In this regard, the employer should be aware that the term of the employment contract in this case is made dependent on the time the absent employee returns to perform his job duties, since the woman has the right to leave the vacation at any time.

According to part 5 of Art. 256 of the Labor Code of the Russian Federation, parental leave is counted in the total and continuous work experience, as well as in the work experience in the specialty (with the exception of cases where a pension is granted on preferential terms).

GUARANTEES FOR WOMEN WHEN SENT ON BUSINESS TRAVEL, ENGAGED IN OVERTIME WORK, WORK DURING THE NIGHT, WEEKENDS AND NON-WORKING HOLIDAYS

Article 259 of the Labor Code of the Russian Federation contains a ban on sending pregnant women on business trips, engaging in overtime work, night work, weekends and non-working holidays.

With regard to women with children under the age of 3, it should be noted that in accordance with Part 2 of Art. 259 of the Labor Code of the Russian Federation, sending them on business trips, engaging in overtime work, work at night, weekends and non-working holidays is allowed subject to their written consent and that this is not prohibited by their medical recommendations. At the same time, they must be familiarized against receipt with their right to refuse a business trip, overtime work, work at night, on weekends and non-working holidays.

Part 3 of Art. 259 of the Labor Code of the Russian Federation also establishes that the guarantees provided for women with children under the age of 3 years also apply to employees with disabled children or disabled since childhood.

ADDITIONAL DAYS OFF WHEN CARE OF DISABLED CHILDREN AND DISABLED CHILDREN

In accordance with Art. 262 of the Labor Code of the Russian Federation for the care of children with disabilities and people with disabilities from childhood until they reach the age of 18, a woman has the right, upon her written application, to receive 4 additional paid days off per month.

The procedure for granting and paying for additional days off is regulated by the Decree of the Ministry of Labor of Russia and the Social Insurance Fund of the Russian Federation dated April 4, 2000 No. 26/34 “On approval of an explanation on the procedure for granting and paying additional days off per month to one of the working parents (guardian, trustee) for caring for disabled children.

The clarification provides that 4 additional paid days off for caring for children with disabilities and people with disabilities from childhood until they reach the age of 18 are provided in a calendar month to one of the working parents at his request and are issued by order of the employer on the basis of a certificate of social protection of the population on disability child, indicating that the child is not kept in a specialized children's institution on full state support.

ADDITIONAL HOLIDAYS WITHOUT PAY

Article 263 of the Labor Code of the Russian Federation establishes that an employee with two or more children under the age of 14, an employee with a disabled child under the age of 18, a single mother raising a child under 14 may be granted additional annual leave without pay. payment at a convenient time for up to 14 calendar days.

Here it should be noted that such leave can be granted if it is provided for by the collective agreement.

The specified leave may be attached to the annual leave or used separately (in full or in parts). The transfer of this leave to the next working year is not allowed.

TERMINATION OF THE EMPLOYMENT CONTRACT AT THE INITIATIVE OF THE EMPLOYER

The Labor Code of the Russian Federation contains a number of rules that expressly prohibit employers from firing employees in the following cases:

· pregnant women (with the exception of the case of liquidation of the organization) (part 1 of article 261 of the Labor Code of the Russian Federation);

· women with children under the age of 3, single mothers raising a child under the age of 14 (a disabled child under 18), other persons raising these children without a mother (with the exception of dismissal due to the liquidation of the organization); for health; repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction; a single gross violation of labor duties by an employee; the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer; the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work; a single gross violation by the head of the organization (branch, representative office), his deputy of his labor duties; submission by the employee to the employer of false documents or knowingly false information when concluding an employment contract (Article 261 of the Labor Code of the Russian Federation).

When the courts consider the claims of women whose employment contract was terminated at the initiative of the employer during pregnancy, they are reinstated by the court at work, regardless of whether the employer was aware of the pregnancy and whether it was preserved at the time of the consideration of the case (paragraph 15 of the resolution of the Plenum of the Supreme of the Court of the Russian Federation of December 25, 1990 No. 6 “On some issues arising when the courts apply the legislation regulating the work of women”).

In the event that a pregnant woman wishes to quit by agreement of the parties, at her own request, no restrictions have been established.

In accordance with Art. 79 of the Labor Code of the Russian Federation, since a fixed-term employment contract is concluded in the interests, first of all, of the employer, the employer must warn the employee in writing about the termination of the employment contract 3 days before the expiration of the employment contract. Failure to comply with this condition translates a fixed-term employment contract into a contract concluded for an indefinite period (part 4, clause 2, article 58 of the Labor Code of the Russian Federation).

In practice, the employer often violates this rule by warning the employee either a day in advance or on the day of dismissal, which is an unconditional basis for canceling the order to dismiss the employee.

It should be noted that in accordance with Part 2 of Art. 261 of the Labor Code of the Russian Federation, in the event of the expiration of a fixed-term employment contract during a woman's pregnancy, the employer is obliged, at her request, to extend the term of the employment contract until she has the right to maternity leave. In the previous labor legislation (part 2 of article 170 of the Labor Code of the Russian Federation), the employer was obliged to employ such a woman.

An employment contract concluded for the duration of the performance of the duties of an absent employee is terminated in connection with the return of this employee to work. When concluding such contracts, it is important to pay attention to the fact that if the conclusion of a fixed-term employment contract is associated with the absence from work of a woman who is on leave to care for a child under the age of 3, the specific term of the contract is not indicated. This is due to the fact that the law does not restrict the mother's right to go to work at any time convenient for her within a 3-year period. In addition, attention should also be paid to the administrative and criminal liability of officials for the unjustified dismissal of a woman based on her pregnancy. In particular, art. 5.27 of the Code of Administrative Offenses of the Russian Federation establishes that violation of labor legislation and labor protection entails the imposition of an administrative fine on officials in the amount of from five to fifty times the minimum wage.

Violation of this legislation by a person previously subjected to administrative punishment for a similar administrative offense already entails the disqualification of an official for a period of one to three years.

L.A. Golomazov, lawyer

Introduction

The objectives of labor legislation are to establish state guarantees of labor rights and freedoms of citizens, create favorable working conditions, protect the rights and interests of workers and employers.

The need for special regulation of women's labor is primarily due to the fact that this category of the population is the most vulnerable to the impact of negative production factors, such as heavy workloads, harmful (dangerous) working conditions. Pregnant women or women with children need to reduce production rates, service rates or be transferred to another job that excludes the impact of adverse production factors in order to ensure the preservation of the woman's health and the full development of the child.

For persons under the age of eighteen, special working conditions are also necessary, primarily related to lowering production standards and protecting minors from work that can have a negative impact on their moral development.

Features of the regulation of women's labor

Article 253

The use of women's labor in hard work and work with harmful and (or) dangerous working conditions, as well as in underground work, is limited, with the exception of non-physical work or work on sanitary and domestic services.

It is forbidden to use the labor of women in work related to the lifting and manual movement of weights that exceed the maximum allowable norms for them.

Lists of industries, jobs, professions and positions with harmful and (or) dangerous working conditions, in which the use of women's labor is limited, and the maximum allowable load standards for women when lifting and moving weights manually are approved in the manner established by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.

1. Labor legislation contains special norms aimed at labor protection and women's health.

restriction on the use of women's labor in heavy work and work with harmful and (or) dangerous working conditions, as well as in underground work (except for non-physical work or work on sanitary and domestic services) in accordance with the list of such industries, works, professions and positions;

a ban on the use of women's labor in work related to lifting and manually moving loads that exceed the maximum allowable norms for them, determined by the relevant list.

2. The list of heavy work and work with harmful or dangerous working conditions, in the performance of which the use of women's labor is prohibited, was approved by Decree of the Government of the Russian Federation of February 25, 2000 No. 162 (SZ RF, 2000, No. 10, art. IZO).

An employer may decide on the use of women's labor in jobs (professions, positions) included in the list, provided that safe working conditions are created, confirmed by the results of attestation of workplaces, with a positive conclusion from the state examination of working conditions and the service of the State Sanitary and Epidemiological Supervision Service of the subject of the Russian Federation (note 1 to the List ).

The list defines the types of underground work in the mining industry and in the construction of underground structures where the use of women's labor is allowed. The positions of managers, specialists and other workers associated with underground work, where, as an exception, the use of female labor is allowed, are given in paragraph 2 of the annexes to the above List.

3. In order to ensure the health and safety of working conditions for women working in organizations of any organizational and legal form and type of ownership, the Council of Ministers - the Government of the Russian Federation by Decree No. 105 of February 6, 1993 (SAPP RF, 1993, No. 7, Art. 566) norms of maximum permissible loads for women when lifting and moving weights manually have been approved.

Article 254. Transfer to another job of pregnant women and women with children under the age of one and a half years

Pregnant women, in accordance with a medical report and upon their application, have reduced production rates, service rates, or these women are transferred to another job that excludes the impact of adverse production factors, while maintaining their average earnings from their previous job.

Until the issue of providing a pregnant woman with other work, excluding the impact of adverse production factors, is resolved, she is subject to release from work with the preservation of average earnings for all missed working days as a result of this at the expense of the employer.

When undergoing a mandatory dispensary examination in medical institutions, pregnant women retain their average earnings at the place of work.

Women with children under the age of one and a half years, in case of impossibility to perform the previous work, are transferred at their request to another job with the preservation of the average earnings from the previous job until the child reaches the age of one and a half years.

1. The basis for reducing the production norms for pregnant women, the norms of service, or for their transfer to another job is a medical report and a statement from the woman.

An employer's refusal to reduce a pregnant woman's production standards, service standards, or transfer her to another job that excludes the impact of adverse production factors may be challenged in court.

• 2. Until the issue of providing a pregnant woman with other work, excluding the impact of adverse factors, is resolved, she is subject to release from work with the preservation of the average earnings for all the days missed as a result of this.
• 3. Since the work of pregnant women working in rural areas in crop and livestock production is prohibited from the moment pregnancy is detected, the employer is obliged to release the woman from such work (while maintaining average earnings) on the basis of a certificate of pregnancy. In this case, a special medical opinion is not required (Resolution of the Plenum of the Supreme Court of the RSFSR dated December 25, 1990 No. 6 "On Certain Issues Arising in the Application by Courts of Legislation Regulating the Labor of Women" (as amended on December 22, 1992 No. 19; as amended by 21.12.93 No. 11 and dated 10.25.96 No. 10) - Collection of Resolutions of the Plenum of the Supreme Court of the Russian Federation. M., 1997. P. 103).

The employer is obliged to release a pregnant woman from work when she undergoes a mandatory dispensary examination while maintaining her average earnings.

The employer's refusal to transfer a woman with a child under the age of one and a half years, if she cannot perform her previous job to another job, may be challenged in court.

Article 255. Leave for pregnancy and childbirth

Women, upon their application and in accordance with a medical report, are granted maternity leave of 70 (in case of multiple pregnancy - 84) calendar days before childbirth and 70 (in case of complicated childbirth - 86, in case of birth of two or more children - 110) calendar days. days after childbirth with the payment of state social insurance benefits in the amount established by law.

Maternity leave is calculated in total and is granted to the woman completely regardless of the number of days she actually used before giving birth.

1. When an employer provides an appropriate medical opinion, women, upon their application, are granted maternity leave, the duration established by the first part of Art. 255 of the Code.

Maternity leave of longer duration is granted to women living (working) in the territory of the zone of residence with the right to resettlement. The duration of vacations is: 90 days before delivery and 70 days for normal births, 86 days for complicated births, BUT days for the birth of two or more children (Law of the RSFSR "On the social protection of citizens exposed to radiation due to the Chernobyl disaster" - Vedomosti RSFSR , 1991, No. 21, item 699).

The Fundamentals of the RF Legislation on the Protection of Citizens' Health (Vedomosti RF, 1993, No. 33, Article 1318) determines that women may be granted extended maternity leave in accordance with the legislative acts of the constituent entities of the Russian Federation.

2. An allowance is paid to women during the time they are on maternity leave. The allowances are established by art. 8 of the Federal Law of May 19, 1995 No. 81-FZ "On State Benefits for Citizens with Children" (SZ RF, 1995, No. 21, Art. 1929).

The allowance for pregnancy and childbirth is established in the amount of:

average earnings (income) at the place of work - for women subject to state social insurance, as well as for women from among the civilian personnel of military units of the Russian Federation located on the territory of foreign states in cases stipulated by international treaties of the Russian Federation;

the minimum wage - for women dismissed in connection with the liquidation of the organization, within 12 months preceding the day they were recognized as unemployed in the prescribed manner;

scholarships - for women studying off-duty in educational institutions of primary vocational, secondary vocational and higher vocational education and institutions of postgraduate professional education;

monetary allowance - to women undergoing military service under a contract, serving as private and commanding officers in internal affairs bodies, institutions and bodies of the penitentiary system.

3. Maternity leave is calculated in total, i.e. if the prenatal period turned out to be less, the remaining days are added to the days of leave granted to the woman after childbirth.

Article 256. Child care leave

At the request of a woman, she is granted parental leave until the child reaches the age of three. The procedure and terms for the payment of benefits for state social insurance during the period of the specified vacation are determined by federal law.

Parental leave may be used in whole or in parts also by the child's father, grandmother, grandfather, other relative or guardian who actually cares for the child. At the request of a woman or persons referred to in paragraph two of this article, while on leave to care for a child, they may work part-time or at home, while retaining the right to receive state social insurance benefits. For the period of parental leave, the employee retains the place of work (position).

Leaves for childcare are counted in the general and continuous work experience, as well as in the length of service in the specialty (with the exception of cases where a pension is granted on preferential terms).

1. Leave to care for a child until the child reaches the age of three years is granted to a woman upon her application.

The state social insurance allowance is currently paid until the child reaches the age of one and a half years. These terms are determined by Federal Law No. 81-FZ of May 19, 1995 (SZ RF, 1995, No. 21, Art. 1929). The same Federal Law defines the circle of persons entitled to receive benefits and the amount of the benefit, which currently amounts to two minimum wages established by federal law, regardless of the number of children being cared for. The procedure for paying benefits for caring for a child until he reaches the age of one and a half years is determined by the Regulations on the procedure for the appointment and payment of state benefits to citizens with children, approved. Decree of the Government of the Russian Federation of 04.10.95 No. 883 (SZ RF, 1995, No. 37, Art. 3628).

2. Childcare leave can be used not only by the mother, but also by another person listed in the second part of Art. 256 of the Code, actually caring for the child.

When registering leave to care for a child, the person actually caring for him must submit a certificate from the place of work (study, service) of the mother of the child stating that she does not use the specified leave and does not receive a monthly allowance for the period of leave to care for the child until reaching them to increase one and a half years.

3. A person caring for a child and being on leave in connection with this has the right to work on a part-time basis or at home. The legislator has not established a requirement that such work can only be performed by the employer with whom the employee on parental leave has an employment relationship. Also, the procedure for employment with another employer is not defined, therefore, it can be assumed that such employment is similar to entering a part-time job (Articles 282, 283 of the Code). Persons who work part-time or at home while on parental leave remain entitled to receive state social insurance benefits.

Employees on parental leave retain their place of work (position), i.e. they cannot be dismissed at the initiative of the employer (except in cases of liquidation of the organization or termination of activity by the employer - an individual), transferred to another job.

Leave to care for a child is counted in all types of length of service, except for cases of granting a pension on preferential terms, for length of service and other cases established by federal laws. Article 121 of this Code also establishes that the time of parental leave is not included in the length of service that gives the right to receive annual paid leave.

Article 258. Breaks for feeding a child

Working women with children under the age of one and a half years are provided, in addition to a break for rest and food, additional breaks for feeding the child (children) at least every three hours of continuous work lasting at least 30 minutes each.

If a working woman has two or more children under the age of one and a half years, the duration of the break for feeding is set at least one hour. At the request of the woman, breaks for feeding the child (children) are added to the break for rest and nutrition, or in a summarized form are transferred both to the beginning and to the end of the working day (work shift) with a corresponding reduction in it (her). Breaks for feeding the child (children) are included in working hours and are payable in the amount of average earnings.

Breaks for feeding a child under the age of one and a half years are provided to a woman, regardless of whether she is breastfeeding or the child is bottle-fed.

Because breastfeeding breaks can be moved to either the beginning or the end of the working day, a woman can start work later or finish work earlier during these breaks.

Regardless of the order in which a woman uses her right to breastfeeding breaks (uses them during the working day, starts work later or finishes work earlier), the time of these breaks is included in working hours and is paid in the amount of her average earnings.

Features of labor regulation - norms that partially restrict the application of general rules or provide for additional rules for individual workers, are spelled out in chapters 41 and 42 of the Labor Code of the Russian Federation, articles 63, 64 of the Labor Code of the Russian Federation.

The conclusion of an employment contract is allowed with persons who have reached the age of 16 years.

An employment contract may be concluded by persons who have reached the age of 15 to perform light work that does not harm their health.

With the consent of one of the parents (trustee) and the body of guardianship and guardianship, an employment contract may be concluded with a student who has reached the age of 14 to perform light work in his free time that does not harm his health and does not violate the learning process.

It is forbidden to refuse to conclude an employment contract for women for reasons related to pregnancy and the presence of children.

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.

The use of women's labor in hard work and work with harmful and (or) dangerous working conditions, as well as in underground work, is limited, with the exception of non-physical work in sanitary and domestic services.

It is forbidden to use the labor of women in work related to lifting and moving weights that exceed the maximum allowable norms for them.

Pregnant women, in accordance with a medical report and upon their application, have their production rates, service rates reduced, or these women are transferred to another job that excludes the impact of adverse production factors, while maintaining their average earnings from their previous job.

Women with children under the age of one and a half years, if it is impossible to perform their previous work, they are transferred, upon their application, to another job with wages for the work performed, but not lower than the average earnings for the previous job until the child reaches the age of one and a half years.

Sending on business trips, engaging in overtime work, night work, weekends and non-working holidays of women with children under the age of three, as well as mothers and fathers raising children under the age of five without a spouse (wife), employees having children with disabilities is allowed only with their written consent.

Termination of an employment contract at the initiative of the employer with pregnant women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child under eighteen) is not allowed, except in cases of liquidation of the organization or termination of activity by an individual entrepreneur.

11. Education and training in the field of labor protection

Education and training in labor protection are set out in Article 18 of the Fundamentals and Article 225 of the Labor Code of the Russian Federation.

All employees, including heads of organizations, as well as employers - individual entrepreneurs, are required to undergo training in labor protection and testing knowledge of labor protection requirements in the manner established by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.

For all persons entering work, as well as for employees transferred to another job, the employer or a person authorized by him is obliged to instruct on labor protection, organize training in safe methods and techniques for performing work and providing first aid to victims.

The employer provides training for persons who have come to work with harmful and (or) dangerous working conditions, safe methods and techniques for performing work with internships at the workplace and passing exams and conducting their periodic training in labor protection and testing knowledge of labor protection requirements during the period of work.

The state promotes the organization of training on labor protection in educational institutions of primary general, basic general, secondary (complete) general education and primary, secondary, vocational higher and postgraduate vocational education.

The state provides professional training for labor protection specialists in educational institutions of secondary and higher professional education.

The peculiarities of regulating the labor of women and persons with family responsibilities are due to the special concern of the state for these persons. First of all, this is manifested in the restriction of the use of women's labor in heavy work and work with harmful and (or) dangerous working conditions, as well as in underground work, with the exception of non-physical work or work on sanitary and domestic services. It is forbidden to use the labor of women in work related to the lifting and manual movement of weights that exceed the maximum allowable norms for them. Lists of such works are approved by the Government of the Russian Federation.

Special guarantees are related to the protection of motherhood and childhood. Pregnant women, in accordance with a medical report and upon their application, have reduced production rates, service rates, or these women are transferred to another job that excludes the impact of adverse production factors, while maintaining their average earnings from their previous job.

Until the issue of providing a pregnant woman with other work, excluding the impact of adverse production factors, is resolved, she is subject to release from work with the preservation of average earnings for all missed working days as a result of this at the expense of the employer.

Women with children under the age of one and a half years, in case of impossibility to perform the previous work, are transferred at their request to another job with the preservation of the average earnings from the previous job until the child reaches the age of one and a half years.

Women are provided with paid maternity leave of 140 days or more, as well as partially paid leave to care for a child until the child reaches the age of 3 years. The last leave may be used in full or in parts also by the child's father, grandmother, grandfather, other relative or guardian who actually cares for the child. Similar leave is also provided for persons who have adopted a child.

One of the parents (guardian, custodian) to care for children with disabilities and people with disabilities from childhood until they reach the age of eighteen years, upon his written application, is provided with four additional paid days off per month.

Working women with children under the age of one and a half years are provided, in addition to a break for rest and meals, additional breaks for feeding a child. These breaks are included in working hours and are payable in the amount of average earnings.

It is prohibited to send pregnant women on official business trips, to engage in overtime work, work at night, weekends and non-working holidays. Sending on business trips, engaging in overtime work, night work, weekends and non-working holidays of women with children under the age of three, employees with disabled children or disabled from childhood until they reach the age of eighteen, as well as employees caring for sick members of their families in accordance with a medical report are allowed only with their written consent and provided that this is not prohibited by their medical recommendations. At the same time, these employees must be familiarized in writing with their right to refuse to be sent on a business trip, to engage in overtime work, work at night, weekends and non-working holidays.

Additional guarantees are provided to women and persons with family responsibilities upon termination of an employment contract. Termination of an employment contract at the initiative of the employer with pregnant women is not allowed, except in cases of liquidation of the organization.

In the event of the expiration of a fixed-term employment contract during the woman's pregnancy, the employer is obliged, at her request, to extend the term of the employment contract until she has the right to maternity leave.

Termination of an employment contract with women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child under eighteen), other persons raising these children without a mother, at the initiative of the employer, is not allowed, with the exception of dismissal in connection with the liquidation of the organization (clause 1 of article 81 of the Labor Code), inconsistency of the employee with the position held or the work performed due to health conditions (subparagraph "a", clause 3 of article 81 of the Labor Code), as well as the commission of guilty acts by the employee (paragraph 5-8, 10 and 11 article 81 of the Labor Code).

A collective agreement may provide for additional benefits for employees with family responsibilities.

"Personnel issue", 2012, N 8

PECULIARITIES OF REGULATION OF THE LABOR OF WOMEN AND CHILDREN

Features of labor regulation - norms that partially restrict the application of general rules on the same issues or provide additional rules for certain categories of workers. The issues of labor regulation of certain categories of workers are discussed in Section. XII Labor Code of the Russian Federation.

According to Art. 252 of the Labor Code of the Russian Federation, it is determined that the nature and conditions of work, the psychophysiological characteristics of the body, natural and climatic conditions, the presence of family responsibilities, as well as other grounds provided for by the Labor Code of the Russian Federation or other regulatory documents, may be the grounds for special labor regulation. Features of labor regulation should be contained in the employment contract, collective agreement, agreements, local regulations. At the same time, the features of labor regulation, which entail a decrease in the level of guarantees for employees, restriction of their rights, increase in their disciplinary and (or) material liability, can be established exclusively by the Labor Code of the Russian Federation or in the cases and in the manner provided for by it.

Features of the regulation of the labor of women and persons

with family responsibilities

Restriction of women's work

According to Art. 253 of the Labor Code of the Russian Federation restricts the use of women's labor in heavy work and work with harmful and (or) dangerous working conditions, as well as in underground work, with the exception of non-physical work or work on sanitary and domestic services. It is forbidden to use the labor of women in work related to the lifting and manual movement of weights that exceed the maximum allowable norms for them.

The list of hard work and work with harmful and dangerous working conditions, in the performance of which the use of women's labor is prohibited, was approved by Decree of the Government of the Russian Federation of February 25, 2000 N 162 (hereinafter - the List). According to this List, the use of women's labor in certain positions in the following sectors is prohibited:

Work related to lifting and moving heavy objects manually;

Underground works;

Metalworking;

Construction, installation and repair and construction works;

Mining;

Geological exploration and topographic and geodetic works;

Drilling of the wells;

Mining of oil and gas;

Ferrous metallurgy;

Non-ferrous metallurgy;

Repair of equipment of power plants and networks;

Production of abrasives;

Electrical production;

Radio engineering and electronic production;

Manufacture and repair of aircraft;

Shipbuilding and ship repair;

Chemical production;

Production and processing of rubber compounds;

Processing of oil, gas, shale and coal, production of synthetic petroleum products, petroleum oils and lubricants;

Logging and timber rafting;

Production of pulp, paper, cardboard and products from them;

Cement production;

Manufacture of reinforced concrete and concrete products and structures;

Production of thermal insulation materials;

Production of soft roofing and waterproofing materials;

Manufacture of glass and glass products;

Textile and light industry;

food industry;

Rail transport and subway;

Automobile transport;

Sea transport;

River transport;

Civil Aviation;

Printing production;

Manufacture of musical instruments;

Agriculture;

Works performed in various sectors of the economy.

Regulation of the labor of women working in rural areas

Decree of the Supreme Council of the RSFSR of November 1, 1990 N 298/3-1 approved urgent measures to improve the status of women, families, motherhood and childhood (hereinafter - Urgent measures). According to this document, women in rural areas are established:

The duration of the annual basic leave is not less than 28 calendar days;

One additional day off per month without pay;

36-hour working week, unless a shorter working week is provided for by other legislative acts. At the same time, wages are paid in the same amount as for the full duration of weekly work (41 hours);

Benefit at the place of work of the mother, father or guardian for the care of a child up to the age of three years on a monthly basis in the amount of the minimum wage for the first child with an increase in the benefit by 50% for each subsequent child. For persons residing in regions and localities where regional wage coefficients are established, the amount of the allowance is determined using the coefficients. If there are different coefficients for wages in a given area, then the coefficients established for the wages of workers and non-production employees are applied;

Increased by 30% wages for women in jobs where, according to working conditions, the working day is divided into parts (with a break of more than 2 hours);

Pregnant women and nursing mothers receive free distribution of food products produced by the farm. The norms of issuance are established by the labor collective.

Labor of pregnant women and workers,

having children under the age of 3

The provision of Art. 254 of the Labor Code of the Russian Federation establishes the procedure for transferring pregnant women and women with children under the age of one and a half to another job. Pregnant women, in accordance with a medical report and upon their application, have reduced production rates, service rates, or these women are transferred to another job that excludes the impact of adverse production factors, while maintaining their average earnings from their previous job. Recall that the average earnings are calculated based on the procedure established by Decree of the Government of the Russian Federation of December 24, 2007 N 922.

Until a pregnant woman is provided with another job that excludes the impact of adverse production factors, she is subject to release from work with the preservation of the average earnings for all missed working days as a result of this at the expense of the employer.

When undergoing a mandatory dispensary examination in medical institutions, pregnant women retain their average earnings at the place of work.

Women with children under the age of one and a half years, if it is impossible to perform their previous work, they are transferred, upon their application, to another job with wages for the work performed, but not lower than the average earnings for the previous job until the child reaches the age of one and a half years.

Pregnant women are granted maternity leave upon their request. The basis for granting leave is a temporary disability certificate issued in accordance with the requirements of the Order of the Ministry of Health and Social Development of June 29, 2011 N 624n. The duration of the leave is 70 (in case of multiple pregnancies - 84) calendar days before childbirth and 70 (in case of complicated childbirth - 86, in case of birth of two or more children - 110) calendar days after childbirth. Maternity leave is calculated in total and is granted to the woman completely regardless of the number of days she actually used before giving birth.

At the request of a woman, she is granted parental leave until the child reaches the age of three. The procedure and terms for paying benefits for state social insurance during the period of the specified vacation are determined by federal laws (Article 256 of the Labor Code of the Russian Federation). Parental leave may be used in whole or in parts also by the child's father, grandmother, grandfather, other relative or guardian who actually cares for the child.

At the request of a woman or persons referred to in paragraph 2 of this article, while on parental leave, they can work part-time or at home, while retaining the right to receive state social insurance benefits. For the period of parental leave, the employee retains the place of work (position).

Article 257 of the Labor Code of the Russian Federation regulates the procedure for the leave of employees who have adopted children. Employees who have adopted a child are granted leave for the period from the date of adoption until the expiration of 70 calendar days from the date of birth of the adopted child, and in case of simultaneous adoption of two or more children - 110 calendar days from the date of their birth.

At the request of employees who have adopted a child (children), they are granted parental leave until they reach the age of three years.

In the event of the adoption of a child (children) by both spouses, these holidays are granted to one of the spouses at their discretion.

Women who have adopted a child, at their request, instead of the leave specified in paragraph 1 of this article, are granted maternity leave for the period from the date of adoption of the child until the expiration of 70 calendar days, and if two or more children are adopted simultaneously - 110 calendar days from the day they were born.

Working women with children under the age of one and a half years are provided, in addition to a break for rest and food, additional breaks for feeding the child (children) at least every three hours, lasting at least 30 minutes each (Article 258 of the Labor Code of the Russian Federation). If a working woman has two or more children under the age of one and a half years, the duration of the break for feeding is set at least one hour.

At the request of the woman, breaks for feeding the child (children) are added to the break for rest and nutrition, or in a summarized form are transferred both to the beginning and to the end of the working day (work shift) with a corresponding reduction in it (her).

Breaks for feeding the child (children) are included in working hours and are payable in the amount of average earnings.

It should also be remembered that pregnant women cannot be involved in overtime work, work at night, weekends and non-working holidays, as well as go on business trips. Sending on business trips, engaging in overtime work, night work, weekends and non-working holidays of women with children under the age of three years is allowed only with their written consent and provided that this is not prohibited to them in accordance with a medical report . At the same time, women with children under the age of three must be informed in writing of their right to refuse to be sent on a business trip, to engage in overtime work, work at night, weekends and non-working holidays.

The above provisions apply to mothers and fathers raising children under the age of five without a spouse, employees with disabled children, and employees caring for sick members of their families in accordance with a medical report.

In accordance with Art. 260 of the Labor Code of the Russian Federation, a woman, at her request, may be granted annual paid leave, regardless of the length of service with this employer before or immediately after maternity leave.

It is not allowed to terminate an employment contract with a pregnant woman at the initiative of the employer (Article 261 of the Labor Code of the Russian Federation). In the event of the expiration of a fixed-term employment contract during the woman's pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the validity of the employment contract until the end of pregnancy. A woman whose employment contract has been extended until the end of pregnancy is obliged, at the request of the employer, but not more than once every three months, to submit a medical certificate confirming the state of pregnancy. If at the same time the woman actually continues to work after the end of pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day when the employer found out or should have found out about the fact of the end of pregnancy.

Termination of an employment contract at the initiative of the employer with pregnant women is not allowed, except in cases of liquidation of the organization or termination of activity by an individual entrepreneur.

It is allowed to dismiss a woman due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible, with the written consent of the woman, to transfer her before the end of pregnancy to another job available to the employer (as a vacant position or job, corresponding to the woman's qualifications, as well as a vacant lower position or lower paid job) that a woman can perform, taking into account her state of health. At the same time, the employer is obliged to offer her all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

It is also not allowed to terminate an employment contract with women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child under eighteen), other persons raising these children without a mother, at the initiative of the employer. The following cases are an exception:

1) liquidation of the organization or termination of activity by an individual entrepreneur;

2) repeated non-fulfillment by an employee without valid reasons of labor duties, if he has a disciplinary sanction;

3) a single gross violation of labor duties by an employee:

Absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift) ;

The appearance of an employee at work (at his workplace or on the territory of the employer organization or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication;

Disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

Theft at the place of work (including small) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

An employee's violation of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed grave consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

4) the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;

5) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

6) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

7) submission by the employee to the employer of false documents when concluding an employment contract;

8) the use, including a single one, of methods of education associated with physical and (or) mental violence against the personality of a student, pupil.

One of the parents (guardian, trustee) for the care of disabled children, upon his written application, is provided with four additional paid days off per month, which can be used by one of these persons or divided by them among themselves at their discretion. Payment for each additional day off is made in the amount of average earnings and in the manner established by federal laws.

The collective agreement may establish additional annual leave without pay at a time convenient for them for up to 14 calendar days for the following employees (Article 263 of the Labor Code of the Russian Federation):

An employee who has two or more children under the age of fourteen;

An employee who has a disabled child under the age of eighteen;

A single mother raising a child under the age of fourteen;

A father raising a child under the age of fourteen without a mother.

Additional leave in this case, at the request of the employee, will be attached to the annual paid leave or used in full or in parts.

Guarantees and benefits provided to women in connection with motherhood (restriction of work at night and overtime work, involvement in work on weekends and non-working holidays, assignment on business trips, provision of additional holidays, establishment of preferential working conditions and other guarantees and benefits established laws and other normative legal acts) apply to fathers raising children without a mother, as well as to guardians (custodians) of minors.

Features of labor regulation of an employee

under the age of 18

It is prohibited to employ persons under the age of 18 in work with harmful and (or) dangerous working conditions, in underground work, as well as in work, the performance of which may harm their health and moral development (gambling business, work in night cabarets and clubs). , production, transportation and trade in alcoholic beverages, tobacco products, narcotic and other toxic drugs) (Article 265 of the Labor Code of the Russian Federation). Decree of the Government of the Russian Federation of February 25, 2000 N 163 approved the List of hard work and work with harmful working conditions, in the performance of which it is prohibited to use the labor of persons under eighteen years of age. It is this document that the employer should be guided by when hiring minors.

In addition, when hiring persons under 18 years of age, the employer must require him to undergo a preliminary mandatory medical examination (examination) in accordance with the requirements of the Order of the Ministry of Health and Medical Industry of Russia dated March 14, 1996 N 90. The purpose of such an examination is to determine the compliance of the health status of employees with the work assigned to them .

Preliminary and periodic medical examinations of employees are carried out by medical institutions (organizations) with any form of ownership that have an appropriate license and certificate. An examination by a psychiatrist is carried out in a psycho-neurological dispensary (department, office) at the place of permanent residence of the subject.

The data of the medical examination are entered into the outpatient medical record. Each doctor participating in the examination gives his opinion on professional suitability and, if indicated, outlines the necessary medical and recreational measures. On a separate sheet, the data of the employee’s professional route (enterprise, workshop, site, profession, length of service, harmful, hazardous substances and production factors) and the final conclusion on the compliance of the state of health with the assigned work or other conclusion (on temporary or permanent transfer to another job) are entered.

Employees who have passed a preliminary or periodic medical examination and are found fit to work with harmful, hazardous substances and production factors are issued an appropriate conclusion signed by the attending physician and sealed by the medical institution. In the case of individual admission, data on the mandatory use of a prosthesis, hearing aid, glasses, etc. are entered in the said conclusion.

Persons under the age of 18 are subject to a mandatory medical examination (examination) annually, which will already be carried out at the expense of the employer.

Annual basic paid leave for employees under the age of 18 is provided for 31 calendar days at a time convenient for them.

Persons under the age of 18 are prohibited from:

Send on business trips;

To involve in overtime work, work at night, on weekends and non-working holidays.

Termination of an employment contract with employees under the age of eighteen at the initiative of the employer (except in the case of liquidation of an organization or termination of activity by an individual entrepreneur), in addition to observing the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission on minors and protection of their rights.

For workers under the age of 18, the output norms are established on the basis of the general output norms in proportion to the reduced working hours established for these employees.

For employees under the age of eighteen who enter work after graduating from general educational institutions and educational institutions of primary vocational education, as well as those who have undergone vocational training at work, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements , local regulations, the labor contract may establish reduced production rates.

Article 271 of the Labor Code of the Russian Federation provides that in case of time wages, wages to employees under the age of 18 are paid taking into account the reduced duration of work. The employer may, at his own expense, make additional payments to them up to the level of wages of employees of the relevant categories for the full duration of daily work.

The work of workers under the age of 18 admitted to piece work is paid according to the established piece rates. The employer may establish for them, at their own expense, an additional payment up to the tariff rate for the time by which the duration of their daily work is reduced.

Remuneration of employees under the age of 18 studying in general education institutions, educational institutions of primary, secondary and higher vocational education and working in their free time from study is made in proportion to the time worked or depending on output. The employer may establish wage supplements for these employees at their own expense.

T. Mezhueva

Journal Expert

Signed for print

• labor law

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