Labor Code with comments for the year. About independent qualification assessment

Labor inspections 2018

Grounds for conducting control measures by the State Labor Inspectorate

From January 11, 2018 came into force amendments introduced Federal Law of December 31, 2017 N 502-FZ in Article 360 of the Labor Code of the Russian Federation. In particular, new reasons have been added for an unscheduled inspection of the GIT. Part seven of Article 360 has been supplemented with one more new paragraph.

Now unscheduled inspections are carried out, among other things, on the basis of:

appeals and applications from citizens, including individual entrepreneurs;
legal entities;
information from government authorities;
local government bodies;
trade unions;
information from the media.

If such appeals and information contain information about the facts of evasion of registration employment contract, improper execution of an employment contract or the conclusion of a civil law contract that actually regulates labor relations between an employee and an employer.

Moreover checks will be carried out immediately after the complaint is filed, without a response from the prosecutor's office.

Recall the grounds for unscheduled inspections that were introduced earlier. So, unscheduled inspection is carried out:(Part 7 of Article 360 of the Labor Code of the Russian Federation):

If the organization's deadline has expired a previously issued order to eliminate violations;
if the labor inspectorate has received relevant appeals and statements about facts of violation by employers of the requirements of labor legislation and other regulatory legal acts, including labor protection requirements, which resulted in a threat of harm to the life and health of workers;
if the federal labor inspectorate received:

employee appeal or statement about violation employer labor rights;
employee request to conduct an inspection of labor conditions and safety at his workplace in accordance with Art. 219 Labor Code of the Russian Federation;

if the head of the labor inspectorate issued an order (instruction) in accordance with the instructions of the President of the Russian Federation, Government of the Russian Federation, as well as on the basis of the prosecutor’s request to conduct such an inspection as part of supervision over the implementation of laws based on materials and appeals received by the prosecutor’s office.

Also, unscheduled inspections based on requests (information) from citizens containing information about the facts that led to non-payment or incomplete payment on time wages , other payments due to employees, or setting wages in an amount less than the amount provided for by labor legislation.

New aspects of establishing part-time work

Since June 29, 2017, the part-time working regime has become more convenient for the employer and employee (Federal Law No. 125-FZ of June 18, 2017). The number of part-time work options has increased.

So, now you can simultaneously use both a part-time and a part-time week for one employee. Previously, you had to choose one of the options.

Example. You can set a work schedule: Tuesday and Friday for 3 hours.

In addition, part-time work can be divided into parts.

Example. An employee can work a 4-hour part-time schedule: from 8 to 10 and from 15 to 17 daily.

In cases where the employer is obliged to establish incomplete work time(Part 2 of Article 93 of the Labor Code of the Russian Federation) the regime of working time and rest time, including the duration of daily work (shift), start and end times of work, time of breaks in work, must be established in accordance with the wishes of the employee, taking into account production (work) conditions at this employer.

Example . A woman whose child has started his first year at school may express a desire for her working day to end two hours earlier than usual. The employer will be obliged to take this kind of wish into account when establishing part-time work. Similarly, at the request of the employee, the time of, say, a lunch break or shift can be changed.

At the same time, based on the meaning of the above norm, one of the parents of a child under the age of 14 has the right to count on establishing part-time work.

To establish the fact of non-use by the second parent of a child under 14 years of age of the right to part-time work (week) on the same basis the employer has the right to request a certificate about his working hours(Letter of the Ministry of Labor of Russia dated November 17, 2017 N 14-2/B-1012)

Maximum working hours to maintain benefits while on parental leave

The Federal Social Insurance Fund of the Russian Federation has new requirements for part-time work while on parental leave with payment of benefits from the Social Insurance Fund.

Let us remind you that while on maternity leave Part-time work is allowed or at home while maintaining the right to receive state social insurance benefits (Article 256 of the Labor Code of the Russian Federation).

In practice, questions have arisen related to the lack of legislative regulation of the minimum amount of time by which working hours can be reduced in order to maintain benefits. At the same time, the Federal Social Insurance Fund of the Russian Federation has the right to refuse reimbursement of expenses for payment of benefits if working hours, at the request of the employee, are formally reduced, for example, by 5 minutes. Officials justified their refusal by the fact that the employee could not fully care for the child. As a rule, these disputes were resolved in court.

In 2017, the Supreme Court of the Russian Federation put an end to this issue, taking the position of the FSS of the Russian Federation. IN Determination dated July 18, 2017 No. 307-KG17-1728 in case No. A13-2070/2016 The Supreme Court of the Russian Federation indicated that a reduction in working hours of less than 5 minutes a day cannot be regarded as a measure necessary to continue caring for a child, resulting in loss of earnings.

In January 2018, the FSS of the Russian Federation in its turn by letter dated January 19, 2018 N 02-08-01/17-04-13832l indicated that reducing working time not only by 5 minutes, but also by: 10, 30, 60 minutes a day does not allow caring for the child properly. In this case, the benefit is no longer compensation for lost earnings, but additional income for the employee. And this is already an abuse of right.

When setting an employee part-time work, it is necessary to proceed from the priority of parental responsibilities. The working day cannot be formally shortened. The Foundation emphasizes that Most of the time should be devoted to the child, and not to work. Only then will compensation for benefits not be denied.

Allowed to work without a lunch break

By general rule, during the working day (shift), the employee must be given a break for rest and food lasting no more than two hours and no less than 30 minutes, which is not included in working hours (Article 108 of the Labor Code of the Russian Federation).

However from June 29, 2017, employees can be left without a lunch break if they work four hours or less. A provision regarding this must be included in the employment contract or in the internal labor regulations. Before this, the rules were the same for everyone. The break must be regardless of the length of the working day.

Part-time workers and employees working no more than 4 hours a day can be left without a lunch break.

Wages in foreign currency without violating labor laws

From February 16, 2018 It entered into force Federal Law No. 8-FZ dated February 5, 2018, amending Article 131 “Forms of remuneration” of the Labor Code. Thanks to these amendments, certain categories of workers will be able to receive wages in foreign currency.

Until February 2018, the payment of wages in accordance with Article 131 of the Labor Code of the Russian Federation was allowed exclusively in foreign currency Russian Federation(in rubles).

Employees who are allowed to be paid in foreign currency include employees located outside the territory of the Russian Federation who are citizens of Russia. In foreign currency, they can receive wages and other payments related to the performance by them outside the territory of the Russian Federation of their labor duties under labor contracts concluded by them with resident legal entities.

The procedure for bringing to administrative responsibility for violations of labor legislation

Above, we have cited articles on which disputes and administrative liability often arise. However, this list is not limited only to these articles. It is possible that during the control measures there will be other violations of labor legislation.

Remember, for violation of labor legislation on several grounds, administrative responsibility is assigned to the employer separately for each violation of labor legislation and labor protection legislation.

There are two main articles in the Code of Administrative Offenses of the Russian Federation that establish liability for violation of labor laws:

V Art. 5.27 Code of Administrative Offenses of the Russian Federation fines are prescribed for violation of labor legislation and other regulatory legal acts;
V Art. 5.27.1 Code of Administrative Offenses of the Russian Federation— fines for violation of state regulatory requirements for labor protection.

IN Resolution Supreme Court RF dated August 15, 2014 N 60-AD14-16 it is established that each of the revealed facts of violation of labor legislation forms an independent composition administrative offense, provided for in Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Responsibility for violations of labor laws can reach a million rubles or more.

Amendments were made by several laws:

Federal Law of July 3, 2016 No. 239-FZ;
Federal Law of June 4, 2014 No. 145-FZ;
Federal Law of July 3, 2016 No. 348-FZ;
Federal Law of July 13, 2015 No. 230-FZ.

New guarantees for employees in 2017

On January 1, 2017, Article 187 of the Labor Code of the Russian Federation, Article 196 of the Labor Code of the Russian Federation and Article 197 of the Labor Code of the Russian Federation were amended. The changes are related to the assessment of employee qualifications.

If the company sent an employee for an independent qualification assessment, the company itself must pay

Article 187 of the Labor Code of the Russian Federation, which regulates guarantees and compensation to employees from employers for vocational training or additional professional education, supplemented by the provision that when an enterprise sends an employee to undergo an independent qualification assessment, payment is made at the expense of the enterprise.

If the company sent an employee for an independent assessment of qualifications, it is obliged to provide guarantees

Article 196 of the Labor Code of the Russian Federation also includes the referral of workers for an independent assessment of qualifications. And when an employer sends an employee to undergo an independent qualification assessment, the employer must provide him with the guarantees established by labor legislation and other regulations legal acts, containing norms labor law, collective agreement, agreements, local regulations, employment contract.

Article 197 of the Labor Code of the Russian Federation provides for the right of workers to undergo an independent qualification assessment.

An enterprise can take into account the costs of assessing personnel qualifications

Since an enterprise incurs expenses when sending employees (or applicants) for an independent qualification assessment, they have the legal right to take these expenses into account when taxing.

New type of other personnel expenses

Federal Law No. 251-FZ of July 3, 2016 introduced the new kind other expenses associated with production and sales taken into account when calculating income tax.

These are the costs of paying for an independent assessment of employee qualifications.

The costs of personnel assessment can be included in expenses

For persons applying for a certain type of exercise labor activity and to have their qualifications recognized by the provisions professional standard or qualification requirements, an independent assessment of employee qualifications was introduced, and in connection with the introduction of this institute, amendments were made to the Tax Code of the Russian Federation.

If the initiator of the assessment is the employer, who in this case pays for it, the amount of the fee for completing such an assessment is included in other expenses associated with production and sales, on the basis of subparagraph 23 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation, as set out in the new edition. In this norm we're talking about on the costs associated with training, retraining and education of personnel. From January 1, 2017, costs for an independent assessment of qualifications were added here.

The issue of justification and documentary evidence of this expense is not ignored.

It is indicated that an employee in respect of whom the organization has entered into an agreement for qualification assessment must work on the basis of an employment contract.

The organization is obliged to keep documents confirming the costs of an employee undergoing an independent qualification assessment for compliance with qualification requirements for the entire duration of the contract for the provision of services for conducting an independent qualification assessment and one year of work for this employee, but not less than four years.

STS companies can also take into account the costs of personnel assessment

From January 1, 2017, companies using the simplified tax system also have the right to take into account the cost of an independent assessment of employee qualifications, which was introduced by Federal Law No. 238-FZ of July 3, 2016.

Its cost can be taken into account in tax expenses when applying the simplified tax system on the basis of subparagraph 33 of paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation.

Such costs are recognized according to the same rules that apply when accounting for the costs of an independent assessment of qualifications for income tax:

To conduct an independent assessment of an employee’s qualifications, his written consent is required;
the assessment was carried out on the basis of an agreement for the provision of relevant services at the qualification assessment center;
a person who has undergone an independent qualification assessment is in an employment relationship with the taxpayer.

The cost of an independent assessment can be taken into account in expenses and tax when applying the Unified Agricultural Tax on the basis of subparagraph 25 of paragraph 2 of Article 346.5 of the Tax Code of the Russian Federation.

Non-personal income tax and a new type of social deduction

Federal Law No. 251-FZ of July 3, 2016 introduced a new type of personal income tax-free income and a new type of social tax deductions. They are associated with payment for an independent assessment of the qualifications of workers. Amendments have been made to Chapter 23 “Income Tax individuals» Tax Code of the Russian Federation.

Since 2017, a new clause 21.1 has been added to Article 217 of the Tax Code of the Russian Federation. If the initiator of the assessment of the employee’s qualification level is the employer, who pays for it, the amount of the fee for completing such an assessment relates to income that is not subject to taxation for the taxpayer, that is, the person who has undergone such an assessment.

Since 2017, a new subparagraph 6 has been added to Article 219 of the Tax Code of the Russian Federation. If a person has passed a qualification assessment on his own initiative and at his own expense, he has the right to receive a social deduction for personal income tax in the amount of expenses actually incurred.

How micro-enterprises can formalize labor relations in 2017

In 2017, micro-enterprises must formalize labor relations on the basis of New Chapter 48.1 of the Labor Code “Features of labor regulation of persons working for employers - small businesses that are classified as micro-enterprises,” which was introduced by Federal Law No. 348-FZ of July 3, 2016.

Chapter 48.1 of the Labor Code of the Russian Federation includes two articles:

Article 309.1 "General provisions";
Article 309.2 “Regulation labor relations and other directly related relations with the employer - a small business entity, which is classified as a micro-enterprise by local regulations containing labor law norms, and labor contracts.”

The new chapter regulates labor relations only for those companies that are included in single register subjects of medium and small businesses. These may also include individual entrepreneurs.

Micro-enterprises have the right to refuse in their activities local regulations that contain labor law norms (internal labor regulations, regulations on wages and bonuses, shift schedules and other documents establishing the specifics of work in the organization). In this case, the company must include the necessary conditions directly in employment contracts with employees.

Such employment contracts will have to be concluded on the basis of a standard form approved by Decree of the Government of the Russian Federation of August 27, 2016 No. 858. This means that this form is mandatory for use. While the use of simplified personnel records itself is not mandatory.

In practice, for the enterprise, this means the following:

If in an existing micro-enterprise the labor contracts concluded with employees contain all the conditions required for the organization, remuneration and provision of social guarantees, then no changes to the employment contract are required.
If a microenterprise decides that local regulations, containing norms of labor law, it will continue to accept in the future, it is not going to abandon them, then there is no need to change the texts of concluded employment contracts.
If a micro-enterprise decides to keep personnel records in a simplified form, then it is imperative to bring the texts of concluded employment contracts in accordance with the standard form and include in the contracts all the conditions usually regulated by local regulations. Labor relations with newly hired employees must be formalized on the basis of a standard form of an employment contract.

New certificate of drug addiction from 2017

In 2017, Article 65 of the Labor Code of the Russian Federation, which defines the documents presented when concluding an employment contract, was supplemented with a new paragraph.

A person who gets a job must provide the employer with a certificate from the Ministry of Internal Affairs stating whether or not he is subject to administrative punishment for using drugs or psychotropic substances without a doctor’s prescription or new potentially dangerous psychoactive substances. This is required in relation to work for which there is a ban on hiring persons before the end of the period during which they are considered subject to administrative punishment.

Back in 2011, the government approved a list of professions that drug addicts cannot engage in. These are professions where it is necessary to deal with a source of increased danger or with the trafficking of narcotic and psychotropic substances; teachers and educators; professions related to management vehicles, weapons trafficking, rescue work, underwater or underground work, steeplejack work, and the maintenance and management of lifting structures.

The recruiting company Antal Russia has prepared an overview of the main changes in labor legislation which came into force at the end of 2016 - beginning of 2017.

The minimum wage will be increased to 7800 rubles

In 2017 minimum size wages will be increased from July 1 by 4% and will amount to 7800 rubles.

Simplified personnel records for micro-enterprises

From 01/01/17, micro-enterprises have the right not to adopt, in whole or in part, local regulations containing the following standards:

internal labor regulations;
wage regulations;
bonus regulations;
shift schedule;
other personnel local regulations.

But in this case, the employer must include these conditions in a standard employment contract approved by the Government of the Russian Federation.

Micro-enterprises include legal entities or individual entrepreneurs that meet the following criteria: annual turnover does not exceed 120 million rubles, the company employs no more than 15 people, including the director or business owner, the share of other private, state or municipal companies is no more than 20 % of authorized capital. If a company ceases to meet the status of a micro-enterprise, then within four months it will need to issue personnel documents

The procedure for conducting an independent assessment of employee qualifications has been established

From 01/01/2017, the Federal Law of 07/03/2016 No. 238-FZ “On Independent Assessment of Qualifications” comes into force, which regulates relations arising when conducting an independent assessment of the qualifications of employees or persons applying for a certain type of labor activity.

An independent assessment of qualifications is carried out in the form of a professional exam, which is carried out at the initiative of the applicant, other individuals and (or) legal entities, or at the direction of the employer. Based on the results of passing the exam, the applicant is issued a certificate of qualification or, in case of receiving an unsatisfactory grade during the examination, a conclusion on its completion with recommendations for the applicant.

The employer sends the employee to undergo an independent qualification assessment with the written consent of the employee and at the expense of the employer. At the same time, during the period the employee undergoes an independent qualification assessment, it is provided that he retains his place of work and average salary, as well as payment of travel expenses in connection with its completion.

The salaries of chief accountants and managers were tied to the salaries of ordinary employees

Salary management team government and municipal organizations(directors, chief accountants) will depend on the salaries of ordinary employees. Limit level This salary ratio will be established by the federal government, regional and municipal authorities.

We also draw your attention to changes in labor legislation that came into force on October 3, 2016:

Changed payroll dates

Amendments to Art. 136 of the Labor Code of the Russian Federation, introduced by Federal Law dated 07/03/16 No. 272-FZ, according to which the deadline for the payment of wages is established no later than the 15th day of the next month.

The amount of compensation for delays in the payment of wages, vacation pay and other labor payments has been increased

Federal Law No. 272-FZ of July 3, 2016, which came into force on October 3, 2016, tightened liability for late wages. Now, for late payment of wages and other payments due to the employee, the employer will be obliged to pay the employee compensation in the amount of no less than 1/150 of the key rate of the Central Bank of the Russian Federation in force at that time from the amounts not paid on time for each day of delay starting from the next day after the established one payment date up to and including the day of actual settlement.

The list of grounds for conducting an unscheduled inspection by the labor inspectorate has been expanded

According to the additions made to paragraph. 4 hours 7 art. 360 of the Labor Code of the Russian Federation, receipt by the Federal Labor Inspectorate of information about violations by employers of the requirements of labor legislation and other regulatory legal acts containing labor law norms, including those that led to non-payment or incomplete payment on time of wages, other payments due to employees, or the establishment of wages in an amount less than the amount provided for by labor legislation is the basis for an unscheduled inspection by the labor inspectorate.

It is allowed not to certify entries in work books with a round seal

Order of the Ministry of Labor dated October 31, 2016 No. 588n amended the Instructions for filling out work books, approved by the resolution of the Ministry of Labor and social development RF dated October 10, 2003 No. 69. Now employers have received official permission not to certify entries in workers’ work books with a round seal.

To effectively perform regulatory functions, domestic labor legislation requires periodic review, additions, and changes. Several innovations will come into effect in 2017. HR professionals should pay attention to several aspects of the labor relationship between employer and employees.

Announcement of legislative innovations

Current changes will affect the registration of temporary disability. HR specialists will have to calculate the corresponding payments in a new way. The issuance and payment procedure for sick leave will also change.

In the new year, professional standards, which previously were primarily advisory in nature, will become mandatory for use. All employers without exception will have to comply with the requirements of the law, regardless of the organizational and legal form of the legal entity or the specifics of the formalization of labor relations. To date, several new professional standards have already been approved. The teacher standard turned out to be the most expected. The approved document objectively evaluates the activities of specialists in this profession without the use of hopelessly outdated technocratic methods and methods.

In the new year, HR officers will have to draw up local regulations in a new way. Special conditions document management will be offered to so-called micro-enterprises.

Transition to electronic sick leave

Obtaining a certificate of incapacity for work and having it certified by a doctor’s signature and seal often poses a problem. The specifics of service in polyclinics is such that queues are common here. The patient has to spend a lot of time to get an appointment with a specialist, and after illness, close the sick leave. Certificates of incapacity for work are often provided at the place of work late.

Legislators see a solution to the problem in the introduction of an electronic sick leave registration system. The transition to it is planned to be carried out gradually. The pilot project will be launched in 2017. Properly executed, certified electronic signature For a medical specialist, certificates of incapacity for work will have legal force, just like standard paper documents.

Doing business without approval of regulatory local documents

The procedure for approving regulatory local documentation will become optional from 2017. However, only small businesses, individual entrepreneurs, and micro-enterprises will be able to take advantage of the benefit. They will no longer be required to compulsorily draw up labor regulations, shift work schedules, etc.

Simplification of document flow is designed to reduce the burden on personnel services. However, it is worth considering that required documents must now be issued at the enterprise according to the new rules. In particular, the form of standard employment contracts will change significantly. The documents will be supplemented with information previously contained in local regulatory acts.

Other changes affecting the relationship between employer and employee, directly or indirectly, are also worthy of attention. Yes, specialists personnel services and heads of organizations where foreign specialists work are recommended to warn employees about the need to obtain a Russian driver's license. The use of foreign documents from 2017 will be banned. In order to avoid problems with the law, in order to minimize the risks of project downtime (especially those related to cargo transportation), it is recommended to take care of obtaining driver licenses in advance.