Changes in the Russian economy and the abandonment of the command-administrative system led to a weakening of the role of the state in establishing the forms and conditions of work. These changes also took place in labor relations, where contractual methods of labor regulation came to the fore, one of the instruments of which is an employment contract.

Labor contract- the main legal form of implementation of the constitutional principle of freedom of labor. Having the opportunity to work, citizens ensure their material well-being and spiritual development.

Freedom of labor means that the right to dispose of one's labor belongs directly to the citizen:

1) by entering into a contractual relationship with the employer;

2) independently in the form of entrepreneurial activity.

The legal principle of freedom of labor is that changes in the terms of an employment contract are made, in general, only with the consent of the employee, termination of the employment contract is possible at any time either at the employee's own request (for example, with an agreement for an indefinite period), and by agreement of the parties ...

Legal guarantees of the constitutional right of citizens to work are legislative protection against unjustified refusals to hire, any direct or indirect restrictions on the rights when hiring, depending on gender, race, nationality, language.

In the Russian Federation, an employment contract was first introduced in 1922. In Art. 17 of the Labor Code of the RSFSR states that an employment contract is an agreement between two or more persons, according to which one party (the employer) presents its labor force to the other party (the employer) for a fee.

In the modern interpretation given in Art. 56 of the Labor Code of the Russian Federation labor contract- this is an agreement between the employer and the employee, in accordance with which the employer undertakes to provide the employee with work for a specified labor function, to ensure the working conditions provided for by the Labor Code of the Russian Federation, laws, regulatory legal and local acts, a collective agreement, agreements containing labor law norms, in a timely manner and pay wages in full. The employee undertakes to fulfill the job function defined by this agreement, to comply with the internal labor regulations.

An employment contract is concluded between two parties - the employee and the employer.

Worker Is an individual who has entered into an employment relationship with an employer for at least sixteen years. However, in the case of receiving basic general education or leaving a general education institution in accordance with federal law, an employment contract can be concluded by persons who have reached the age of fifteen. From the age of fourteen, students are allowed to enter into labor relations only with the consent of one of the parents (guardian, trustee) and the guardianship and trusteeship body to perform light work in their free time that does not harm health and does not interfere with the learning process. But, nevertheless, they practically try to hire people who have reached the age of eighteen.

In addition, it must be remembered that according to Art. 29 of the Civil Code of the Russian Federation, a person who, due to a mental disorder, is not able to understand the meaning of his actions or to direct them and who is recognized by the court as incompetent cannot be a party to labor relations and, as a result, a party to an employment contract.

It should also be noted that in accordance with Article 265 of the Labor Code of the Russian Federation, the conclusion of an employment contract providing for the performance of work with harmful and / or hazardous working conditions, underground work, as well as work, the performance of which may harm health and moral development (gambling business, work at night cabaret and clubs, production, transportation and sale of alcoholic beverages, tobacco products, narcotic and toxic drugs), is allowed if the specified person has reached the age of 18.

Employer - it is a natural or legal person (organization).

Individual:

This is an individual entrepreneur who has acquired a labor legal personality from the moment of its registration as such;

This is an individual who is not a private entrepreneur, but in order to ensure his personal needs (housekeeping, driving a personal car, protecting property, etc.), using someone else's labor for creative or scientific activity. This person can be an employer from the moment of attaining civil legal personality, that is, from the age of eighteen.

A legal entity can become an employer regardless of the organizational and legal form and form of ownership from the moment of its state registration as such. As a rule, the sole executive body of the organization, that is, its head (director, general director, president of the company), is empowered to represent the employer in labor relations with the employees of the enterprise.

The question often arises - is it necessary to conclude an employment contract in writing, or it can be concluded orally. This situation is clearly spelled out in the Labor Code of the Russian Federation - an employment contract is concluded only in writing and must be drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is handed over to the employee, the other is kept by the employer.

However, in some cases, when concluding employment contracts with certain categories of employees, laws and other regulatory legal acts provide for the need to agree on the possibility of concluding employment contracts or their conditions with the relevant persons or bodies that are not employers under these contracts, as well as drawing up employment contracts in a larger number of copies.

For example, when concluding an employment contract with students who have turned fourteen years old, the consent of one of the parents (guardian, trustee) and the guardianship and guardianship authority is required. And also if an employment contract with the heads of federal state unitary enterprises is concluded by federal executive bodies, which are entrusted with the coordination and regulation of activities in the relevant sectors or areas of management in agreement with the RF Ministry of Property. Accordingly, a formalized labor contract must be submitted to this ministry, and without its consent, it is impossible to issue orders for appointment to a position (Resolution of the Government of the Russian Federation of March 16, 2000 No. 234 "On the procedure for concluding labor contracts and certification of heads of federal state unitary enterprises").

But even if the employment contract is not properly executed, it is still considered concluded if the employee started work with the knowledge or on behalf of the employer or his representative. With the actual admission of the employee to work, the employer is obliged to draw up an employment contract with the employee in writing no later than three days from the date of the actual admission of the employee to work.

In addition, labor relations on the basis of an employment contract may arise in the following cases:

1) as a result of the election by the general meeting of shareholders (members of a limited liability company) of an individual as the sole executive body of the company (president, general director, director) (Article 69 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies" (as amended as of 01.07.2002), Article 40 of the Federal Law of 08.02.1998 No. 14-ФЗ "On Limited Liability Companies");

2) as a result of being elected through a competition to fill positions of the teaching staff in a higher educational institution (Article 20 of the Federal Law of 08.22.1996 No. 125-FZ "On higher and postgraduate vocational education" (as amended on 12/30/2001));

3) as a result of being elected through a competition to fill the position of the head of a federal state unitary enterprise (Resolution of the Government of the Russian Federation of March 16, 2000 No. 234 "On the Procedure for Concluding Contracts and Certification of Heads of Federal State Unitary Enterprises" (as amended on 07.19.2001));

4) as a result of the appointment of persons replacing the position of the head (deputies of the head) of an institution fully or partially financed by the owner. For example, in accordance with the Decree of the President of the Russian Federation of 28.08.2000 No. 1579 "On the State Academic Bolshoi Theater of Russia", the activities of the Bolshoi Theater are managed by the General Director appointed and dismissed by the Government of the Russian Federation on the proposal of the Ministry of Culture of the Russian Federation; his deputies are appointed by the Ministry of Culture of the Russian Federation on the proposal of the General Director;

5) as a result of the conclusion of an employment contract with a person sent by the employment service body for employment to this organization on account of the quota established by law, i.e., the minimum number of bookable jobs for low-income citizens and citizens experiencing difficulties in finding a job. This category includes people with disabilities who, in accordance with an individual rehabilitation program, young people under the age of 18 (orphans, graduates of orphanages, children left without parental care, etc.) (Federal Law of November 24, 1995 No. 181-FZ “On social protection of disabled people in the Russian Federation” (as amended on 05/29/2002));

6) as a result of a court decision obliging the employer to conclude an employment contract with a person whom the employer unreasonably refused to hire (Articles 3 and 64 of the Labor Code of the Russian Federation).

However, it must be borne in mind that Art. 11 of the Labor Code of the Russian Federation explains that the Labor Code of the Russian Federation, laws and other regulatory legal acts containing labor law norms do not apply to the following persons, unless they simultaneously act as employers or their representatives:

1) servicemen in the performance of their military service duties;

2) members of the boards of directors (supervisory boards) of organizations (with the exception of persons who have entered into an employment contract with this organization);

3) persons working under civil contracts;

4) other persons, if it is established by federal law.

If an employee is hired at an enterprise without concluding an employment contract, then this is a malicious violation of labor legislation and, in the event of an inspection, the State Labor Inspector will fine the head of this enterprise.

Consequences of violation of labor legislation (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

1) the imposition of an administrative fine on officials in the amount of 5 to 50 times the minimum wage:

2) disqualification for a period of one to three years for persons previously subjected to administrative punishment for a similar administrative offense;

3) the imposition of an administrative fine on an organization in the amount of 300 to 500 times the minimum wage.

Inspectors can visit any organization, but the main reason for the visit is employee complaints, which must be answered within a month. However, information about violations of labor legislation can also come from government agencies - tax inspectorate, FSS, police, trade unions.

The most significant and significant structure on this list is the federal labor inspectorate (or State Labor Inspectorate). It carries out its activities in accordance with the rules specified in Art. 254-265 of the Labor Code of the Russian Federation, the Regulations on the Federal Labor Inspection (Approved by the RF Government Decree of January 28, 2000 No. P78) and the Regulations on the State Labor Inspection in the Subject of the Russian Federation (Approved by the Order of the Ministry of Labor of Russia dated 02.29.2000 No. P65). The system of federal labor inspectorates ensures that employers comply with labor laws and other regulatory legal acts containing labor law norms. The main inspection figure in this structure is the state labor inspectors:

1) legal inspectors (check the work of personnel services);

2) labor safety inspector.

State legal inspectors, when carrying out control and supervisory activities, have the right to:

1) in the presence of a certificate of the established form, at any time of the day, freely visit enterprises of all organizational and legal forms and forms of ownership;

2) carry out inspections and investigation of the reasons for violations of labor legislation;

3) request and receive free of charge from employers (their representatives) documents, explanations, information necessary for the exercise of their powers;

4) present to employers (their representatives) binding instructions on elimination of violations of labor legislation, on restoration of violated rights of citizens;

5) to bring to administrative responsibility the persons guilty of violation of labor legislation.

All checks can be divided into:

1) scheduled inspections, which in turn are subdivided into:

comprehensive checks... The inspector looks at how the organization observes labor legislation as a whole;

thematic checks conducted under one of the sections of the Labor Code of the Russian Federation (wages, rest time, employment contract, etc.).

Scheduled measures in relation to the same legal entity can be carried out no more than once every two years (clause 4 of article 7 of the Federal Law of 08.08.01 No.P 134-FZ "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs during State Control (supervision) ".

2) unscheduled inspections:

targeted checks carried out in connection with employee complaints or accident investigations. Having come to the organization with such a check, the inspector will limit himself to investigating the circumstances that are indicated in the complaint. But if along the way he discovers any other violations of the law, the targeted check may well turn into a comprehensive one.

control checks are carried out in order to make sure that all instructions for the elimination of violations identified during the main check have been fulfilled.

As a general rule, each inspection should not last more than one month. However, in exceptional cases related to the conduct of additional examinations or the study of a large volume of materials, its term can be extended for another 30 days (clause 3 of article 7 of Law No. P 134-FZ).

When visiting an enterprise, an inspector of the State Labor Inspectorate is obliged to present an order, which must indicate:

1) number and date of the document;

2) the name of the federal labor inspectorate conducting the inspection;

3) surname, name, patronymic of the state labor inspector authorized to carry out control activities;

4) the name of the organization to be verified;

5) goals, objectives, subject of the event;

6) the legal grounds for the control, including the regulatory legal acts, the requirements of which are subject to verification;

7) date of start and end of control activities.

All employers are recommended to keep a special log of data on the visits of a legal inspector (clause 5 of article 9 of Law No. P 134-FZ). Ask the checking inspector to enter in the log all the necessary records of the check with his own hand, indicate your last name, first name, patronymic, the purpose of the event and sign it all with your signature.

If a trade union body, employee or other person applies to the state labor inspectorate on an issue pending consideration by the relevant body, with the exception of claims accepted for consideration by the court, or issues on which there is a court decision, the state labor inspector upon revealing a violation of labor legislation or other normative legal act containing labor law norms, has the right to issue an order to the employer that is subject to mandatory execution. This order can be appealed by the employer in court within ten days from the date of its receipt by the employer or his representative.

When concluding an employment contract, Russian legislation provides for a number of guarantees prohibiting:

1) unreasonably refuse to conclude an employment contract;

2) refuse to hire citizens who do not have registration in a specific locality;

This refusal violates the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence, guaranteed by the Constitution of the Russian Federation (part 1 of article 27), the Law of the Russian Federation "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation. ”, And also contradicts the second part of Art. 64 of the Labor Code of the Russian Federation, which prohibits restricting rights or establishing any advantages when concluding an employment contract on a specified basis.

3) refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children;

4) refuse to conclude an employment contract for employees invited in writing to work by transfer from another employer, within one month from the date of dismissal from the previous place of work. Failure to comply with this obligation may be appealed to the court or labor inspectorate, which may oblige the employer to conclude an employment contract;

5) refuse to hire HIV-infected people on the basis of their HIV infection. (Article 17 of the Federal Law "On Preventing the Spread in the Russian Federation of a Disease Caused by the Human Immunodeficiency Virus (HIV Infection)";

6) refuse to hire young workers after graduating from vocational and technical educational institutions, directed by an organized recruitment of workers.

7) refuse to hire persons sent to the enterprise on account of quotas.

Quota is the minimum number of jobs for the relevant category of citizens that the employer is obliged to employ in this organization. Local self-government bodies have the right to establish quotas for hiring, which determine them taking into account the situation in the labor market, on the proposal of the relevant territorial bodies of the state employment service with the participation of labor bodies. When determining the quota, its size is established for each category of citizens and a specific organization with an average number of 35 people or more.

In addition, persons belonging to small peoples have the right to priority employment in their specialty in the organization of traditional industries and traditional crafts of small peoples created in the areas of their traditional residence and economic activity (Article 8 of the Federal Law "On guarantees of rights indigenous small-numbered peoples of the Russian Federation ").

However, it should be noted here that the employer, for the purpose of effective economic activity, independently, under his own responsibility makes the necessary personnel decisions (selection, placement, dismissal of personnel) and the conclusion of an employment contract with a specific person looking for work. From the number of persons applying for the conclusion of an employment contract for the performance of a specific job, he has the right to choose those who, in terms of their business qualities, are most suitable for performing a specific job (for example, with extensive experience in their specialty, with knowledge of a foreign language, with work skills on a personal computer, etc.). This is a right, not an obligation of the employer..

The Labor Code of the Russian Federation does not contain norms obliging the employer to fill vacant positions or jobs immediately as they arise (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 "On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation").

In addition, the employer has the right to present other requirements to a person applying for a vacant position or job, which are mandatory for the conclusion of an employment contract by virtue of a direct prescription of the federal law. For example, the presence of Russian citizenship is in accordance with paragraph 1 and sub. 6 p. 3 art. 21 of the Federal Law of July 27, 2004 No. 79-FZ "On the State Civil Service of the Russian Federation" a prerequisite for admission to the civil service (except in cases where access to public service is regulated on a reciprocal basis by an interstate agreement). And also if certain requirements are necessary due to the specifics of a particular job (for example, proficiency in one or more foreign languages, the ability to work on a computer).

In certain cases, the employer is obliged to renew the employment relationship:

1) the deputy of the State Duma of the Federal Assembly of the Russian Federation, after the termination of his powers, must be given his previous job (position). And in its absence, another, but equivalent job (position) at the previous place of work or, with his consent, at another enterprise (Article 25 of the Federal Law of 08.05.94 No. 3-FZ "On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly Russian Federation");

2) former employees dismissed due to illegal conviction or removal from office, as well as due to illegal prosecution. They should be provided with the previous job (position), and if this is impossible, another equivalent job (position). The right to reinstatement at work is valid for three months from the date of the entry into force of the acquittal or the issuance of a resolution (ruling) to terminate the criminal case for the absence of an event or corpus delicti or for lack of proof of the employee's participation in the commission of a crime. The dismissal record entered in the work book is invalidated. At the request of the employee, the employer is obliged to issue a duplicate of the work book without the specified entry (Regulation on the procedure for compensation for damage caused to a citizen by illegal actions of the bodies of inquiry, preliminary investigation, the prosecutor's office and the court, approved by the Decree of the Presidium of the Supreme Soviet of the USSR of 05/18/81);

3) citizens who worked before conscription (admission) to military service in state (municipal) organizations cannot be denied employment in the same organizations within three months after dismissal from military service; Citizens who did military service on conscription and officers who were called up for military service from the reserve for two years must be given a job (position) not lower than that held before being called up for military service (Article 23 of the Federal Law of May 27, 98 No. 76-FZ "On the status of military personnel");

4) employees (except for temporary and seasonal ones), if they, being drafted into the army, were exempted from military service within three months from the date of the call (clause 74 of the Regulation on benefits for military personnel who are liable for military service, persons dismissed from military service to retire , and their families, approved by the decree of the USSR Council of Ministers of 17.02.81 No. 193).

In case of refusal to hire at the request of this person, the employer is obliged to inform him of the reason for the refusal in writing. Refusal to conclude an employment contract can be appealed against in court. Moreover, not only the employer's refusal to inform in writing the reason for not concluding an employment contract, but also the direct grounds for refusing to conclude an employment contract can be appealed. It must be remembered that in this dispute it is the employer who must prove the legality and validity of his actions.

According to Art. 136 of the Criminal Code of the Russian Federation, violation of the equality of citizens in employment is considered as a criminal offense, depending on gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, causing harm to rights and legal interests of citizens and is punished:

2) compulsory work for up to one hundred and eighty hours;

3) correctional labor for up to one year;

4) imprisonment for up to two years.

For the same act committed by a person using his official position, the following shall be punished:

1) a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to two years;

2) deprivation of the right to hold certain positions or engage in certain activities for up to five years;

3) compulsory work for a period of one hundred and twenty to two hundred and forty hours;

4) correctional labor for a period of one to two years;

5) imprisonment for up to five years.

The court may prosecute an employer guilty of discrimination in employment.

According to Art. 145 of the Criminal Code of the Russian Federation for refusing to hire a pregnant woman or a woman with children under three years of age, on the basis of pregnancy or having children, is punished:

1) a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months;

2) compulsory work for a period of one hundred and twenty to one hundred and eighty hours.

There are two types of employment contracts for the duration:

1) Perpetual employment contract- is concluded for an indefinite period.

2) Fixed-term employment contract:

The validity period is stipulated in the contract itself, but not more than five years;

The term of validity is limited by the time it takes to complete a specific job.

In practice, quite often a so-called "labor agreement" is concluded in place of an employment contract. In Russian labor legislation, there is no such concept of "labor agreement" - this is how work is often called under a civil contract, which is regulated by the Civil Code of the Russian Federation.

Work under a civil law contract (contract, paid provision of services or other civil law transactions) is aimed at the end result and stipulates payment, and does not regulate the work schedule. Substitution of an employment contract with agreements of a civil nature is a deliberate infringement of the employee's rights. Not wishing to provide the employee with the benefits and privileges prescribed by the Labor Code of the Russian Federation, the employer, when hiring, resorts to concluding a work contract or a service agreement.

However, according to Art. 11 of the Labor Code of the Russian Federation only in court can it be established that a civil contract actually regulates labor relations between an employee and an employer.

An employment agreement is only acceptable if an employee who is on a regular basis while on annual paid leave continues to work.

Let's take a closer look at the characteristic differences between an employment contract and an "employment agreement" (tab. 1).

Below are examples of an employment agreement (Fig. 1).

Rice. 1. Samples of an employment agreement.

A fixed-term employment contract is an employment contract with a limited duration. A fixed-term contract is concluded for a period not exceeding 5 years or for the duration of a certain work.

The most common mistake or, as a rule, a deliberate violation of the Labor Code of the Russian Federation is the unreasonable conclusion of urgent labor contracts, so that, if necessary, quickly get rid of an unwanted employee. Therefore, so that the employer does not abuse this, the law prohibits the conclusion of fixed-term employment contracts in order to evade the provision of the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

The State Labor Inspector and the Prosecutor's Office pay special attention to this violation with the ensuing consequences.

According to Art. 58 of the Labor Code of the Russian Federation, an employment contract concluded for a specified period in the absence of sufficient grounds established by the body exercising state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, or by a court, is considered concluded for an indefinite period.

It must be remembered that a fixed-term employment contract must be terminated at the end of its validity period, and the employee must be fired. If necessary, a new employment contract can be concluded with this employee, and the employee must be re-registered for work.

A fixed-term contract, as a rule, is applied in cases of replacement of temporarily absent workers, for example, for the period of parental leave, for the period of illness of the main employee or for the duration of a certain job.

In order to avoid unforeseen consequences in a fixed-term employment contract, it is necessary, if possible, not to indicate the exact terms of its validity, using formulations such as: "before the commissioning of the object ...", "for the period of parental leave ...", "during illness ..." , "Before the signing of the acceptance certificate ...", etc.

For example, to implement the "1-C accounting" program, it is necessary to establish a network, set up computer equipment and train personnel to use it. To carry out the above work, an employment contract is concluded with a software engineer, in which it is necessary to mark in the column "This employment contract was concluded before the signing of the acceptance certificate for the implementation of the 1-C accounting program."

Acceptance and delivery of work performed by an employee under a fixed-term employment contract concluded for the duration of a certain work is drawn up by the "Act on the acceptance of work performed under a fixed-term labor contract concluded for the duration of a certain work" of the unified form No. T-73, approved by the State Statistics Committee of Russia from 01/05/2004 No. 1 (Fig. 2).

The act confirms the completion of the work, for the duration of which the employment contract was concluded, and is the basis for the final or stage-by-stage calculation of the amount of payment for the work. This act is drawn up by the employee responsible for the acceptance of the work performed, approved by the head of the organization or a person authorized by him and transferred to the accounting department for the calculation and payment of the amount due to the contractor.

Rice. 2. A sample certificate of acceptance of work performed under a fixed-term employment contract.

According to Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract may be concluded at the initiative of the employer or employee in the following cases:

1) to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained;

2) for the duration of temporary (up to two months) work, as well as seasonal work, when, due to natural conditions, work can be performed only during a certain period of time (season);

3) with persons applying for work in organizations located in the regions of the Far North and equivalent areas, if this is associated with moving to the place of work;

4) to carry out urgent work to prevent accidents, accidents, catastrophes, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

5) with persons applying for work in organizations - small businesses with up to 40 employees (in retail trade and consumer service organizations - up to 25 employees), as well as employers - individuals;

6) with persons sent to work abroad;

7) to carry out work that goes beyond the normal activities of the organization (reconstruction, installation, commissioning and other works), as well as to carry out work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided;

8) with persons applying for work in organizations created for a known period of time or for the performance of a known job;

9) with persons accepted for the performance of knowingly certain work in cases where its performance (completion) cannot be determined by a specific date;

10) for work directly related to the internship and vocational training of the employee;

11) with persons studying in full-time forms of education;

12) with persons working in this organization concurrently;

13) with old-age pensioners, as well as with persons who, for health reasons, in accordance with a medical certificate, are allowed to work exclusively of a temporary nature;

14) with creative workers of the media, cinematographic organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance of works, professional athletes in accordance with the lists of professions approved by the Government of the Russian Federation, taking into account the opinion of the Russian the tripartite commission for the regulation of social and labor relations;

15) with scientific, pedagogical and other employees who have entered into employment contracts for a specified period as a result of a competition held in the manner prescribed by law or other regulatory legal act of a state authority or local government body;

16) in the case of being elected for a certain period of time to an elected body or to an elective position for a paid job, as well as entering a job related to the direct support of the activities of members of elected bodies or officials in public authorities and local self-government bodies, as well as political parties and other public associations;

17) with heads, deputy heads and chief accountants of organizations, regardless of their organizational and legal forms of ownership;

18) with persons sent for temporary work by the employment service bodies, including the conduct of public works;

19) in other cases provided for by federal laws.

Do not forget that Art. 261 of the Labor Code of the Russian Federation obliges the employer, in the event of the expiration of a fixed-term employment contract during a woman's pregnancy, to extend the term of the contract until she has the right to maternity leave.

According to Art. 57 of the Labor Code of the Russian Federation in an employment contract, it is mandatory to indicate:

1) the surname, name, patronymic of the employee;

2) the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract.

As well as the essential conditions of the employment contract:

1) place of work (indicating the structural unit);

2) date of commencement of work;

3) the name of the position, specialty, profession with an indication of qualifications in accordance with the staffing table of the organization or a specific job function. If, in accordance with federal laws, the provision of benefits or the existence of restrictions is associated with the performance of work in certain positions, specialties or professions, then the names of these positions, specialties or professions and qualification requirements for them must correspond to the names and requirements specified in the qualification reference books approved in accordance with the procedure established by the Government of the Russian Federation;

4) the rights and obligations of the employee;

5) the rights and obligations of the employer;

6) characteristics of working conditions, compensation and benefits to employees for work in difficult, harmful and (or) dangerous conditions;

7) the mode of work and rest (if it in relation to this employee differs from the general rules established in the organization);

8) the conditions of remuneration (including the size of the wage rate or the official salary of the employee, additional payments, allowances and incentive payments);

9) types and conditions of social insurance directly related to labor activity.

In addition, the labor contract may provide conditions for testing, on nondisclosure of secrets protected by law (state, official, commercial and other), on the employee's obligation to work after training for at least the period established by the contract, if training was carried out at the expense of the employer, as well as other conditions that do not worsen the position of the employee in comparison with the Labor Code of the Russian Federation, laws and other regulatory legal acts, collective bargaining agreements, agreements.

The terms of the employment contract can be changed only by agreement of the parties and in writing.

Let's look at the example of the unified form of the employment contract TD-1, approved by the State Statistics Committee of Russia (Fig. 3), the procedure for drawing up an employment contract.

1. Subject of the labor agreement (contract).

2. General provisions.

2nd page of the form No. TD-1

3. Rights and obligations of the parties

3rd page of the form No. TD-1

4. Working hours, rest time and social conditions.

5. Remuneration for labor.

4th page of the form No. TD-1

6. Responsibility of the parties.

7. Other conditions of the labor agreement (contract).

Rice. 3. The unified form of the employment contract TD-1, approved by the State Statistics Committee of Russia.

The employment contract specifies the full name of the enterprise where this employee is employed, as well as the full name of the position of the head of this enterprise, his last name, first name, patronymic (Fig. 4).

Rice. 4. A sample of registration of an employment contract in terms of the name of the enterprise.

If an employee goes to work in a branch (representative office) of an enterprise (organization), then in the employment contract it is necessary to indicate not only the full name of the enterprise itself, but also the name of the branch (representative office) (Fig. 5).

Rice. 5. A sample of registration of an employment contract in terms of the name of the branch of the organization.

In addition, in the employment contract, it is necessary to indicate the structural unit (section, department, workshop, etc.) in which he will work, as well as the name of the position, specialty, profession, category, class (category), qualification or specific labor function. in accordance with the staffing table (Fig. 6).

Rice. 6. Sample registration of an employment contract.

The name of the position, profession, specialty, indicating the qualifications of the accepted or transferred employee, is recommended to be determined using the All-Russian Classifier of Occupations, the All-Russian Classifier of Workers' Professions, Employee Positions and Wage Grades, or in accordance with the staffing table of the enterprise.

If the organization is not on budget funding, then you have the right to independently determine the names of positions in accordance with the responsibilities assigned to the employee.

However, it must be borne in mind that if an employee performs work on which benefits are provided in accordance with federal law, and in the staffing table a profession is defined for him that is not included in the qualification directory, then he is deprived of all benefits. For example, if an employee performs the functions of an electric and gas welder, and the staffing table defines the profession of “welder” for him, then he loses the right to retire from the age of 55, having at least 12.5 years of experience in the profession.

If the date of the start of work is indicated in the employment contract, then the employee is obliged to start work from this date (Fig. 7);

Rice. 7. A sample of drawing up an employment contract in the part "General provisions".

And if the start date of work is not indicated, then the employee starts work the next day after the conclusion of the employment contract.

In case of conclusion of a fixed-term employment contract, it is necessary to indicate:

1) the date of termination of the employment contract;

2) the circumstance that was the basis for concluding a fixed-term employment contract (Fig. 8, 9, 10).

In the employment contract, it is also necessary to indicate whether this work is the main one or this is a part-time job.

Rice. 8. Sample registration of a part-time employment contract.

Rice. 9. A sample of execution of a fixed-term employment contract.

Rice. 10. A sample of execution of a fixed-term employment contract for the period of major overhaul.

The probationary period is used in order to check the employee for compliance with the work stipulated by the employment contract.

The test condition must be specified in the employment contract and in the employment order.

The absence of a probationary clause in the employment contract means that the employee was accepted without probation.

During the test period, the employee is subject to the provisions of the Labor Code of the Russian Federation, laws, other regulatory legal acts, local regulations containing labor law norms, and a collective agreement.

Remember that a test at hiring is not established in the following cases:

1) when applying for a job under a competition for filling the relevant position, held in the manner prescribed by law (Article 18 of the Labor Code of the Russian Federation);

2) upon hiring pregnant women;

3) upon employment of persons under the age of eighteen (Article 63 of the Labor Code of the Russian Federation);

4) upon employment of persons who have graduated from educational institutions of primary, secondary and higher vocational education and are entering work for the first time in their specialty;

5) upon hiring persons elected (selected) to an elective position for a specific job (Article 17 of the Labor Code of the Russian Federation);

6) when applying for work, persons invited to work by transfer from another employer as agreed between employers (Article 72 of the Labor Code of the Russian Federation);

7) upon hiring persons hired for a period of up to 2 months (Article 289 of the Labor Code of the Russian Federation);

8) in other cases provided for by the Labor Code, other federal laws and the collective agreement.

The test period cannot exceed:

1) two weeks when hiring workers for seasonal work (part 2 of article 294);

2) three months (part 5 of article 70 of the Labor Code of the Russian Federation) for employees who have entered into an employment contract for an indefinite period or a fixed-term employment contract;

3) six months, unless otherwise provided by federal law, - for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices and other separate structural divisions of organizations (part 5 of article 70 of the Labor Code of the Russian Federation).

The trial period does not include the period of temporary disability of the employee and other periods when he actually did not work (Article 70 of the Labor Code of the Russian Federation).

According to Art. 71 of the Labor Code of the Russian Federation in case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him of this in writing (Fig. 10) no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test.

Sample notice of termination of an employment contract with an employee who did not pass the test.

However, the fact that the employee does not cope with the assigned work must be documented. For this, the employee's mistakes must be recorded, the cases when the decisions he made were wrong. Otherwise, when the employee goes to court, it will be quite difficult to prove the validity of terminating the employment contract with the employee as having failed the test.

Termination of an employment contract with an employee as not having passed the test is carried out in accordance with paragraph 14 of Art. 81 and Art. 71 of the Labor Code of the Russian Federation without taking into account the opinion of the relevant trade union body and without paying severance pay.

If, during the trial period, the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract of his own free will, notifying the employer about this in writing three days in advance.

If the test period has expired, and the employee continues to work, then he is considered to have passed the test, and the subsequent termination of the employment contract is allowed only on a general basis.

1) simply list those established in Art. 21 of the Labor Code of the Russian Federation, the rights and obligations of an employee (Fig. 11):

Rice. 11. A sample of making an entry into an employment contract on the rights and obligations of an employee.

2) specify them in relation to the employee (Figure 12).

Rice. 12. A sample of making an entry into an employment contract on the rights and obligations of an employee.

It should be remembered that the scope of the employee's rights established by the employment contract cannot be lower, and the obligations not higher than those established by the Labor Code of the Russian Federation.

When concluding an employment contract, the parties can:

1) just list the established Art. 22 of the Labor Code of the Russian Federation, the rights and obligations of the employer (Fig. 13):

Rice. 13. A sample of making an entry in an employment contract about the rights and obligations of the employer.

2) apply to specific legal relationships (Fig. 14).

Rice. 14. A sample of making an entry in an employment contract about the rights and obligations of the employer.

In an employment contract in accordance with Art. 57 of the Labor Code of the Russian Federation, it is necessary to determine the mode of work and rest of the employee.

Working hours according to Art. 91 of the Labor Code of the Russian Federation is the time during which the employee, in accordance with the internal labor regulations of the enterprise and the terms of the employment contract, must perform labor duties. Normal working hours cannot exceed forty hours a week, but a preferential regime is established for certain categories of workers (minors, disabled people, medical workers).

For example, normal working hours are reduced by:

1) 16 hours a week - for employees under the age of sixteen;

2) 5 hours a week - for employees who are disabled of I or II groups with full remuneration;

3) 4 hours a week - for employees aged sixteen to eighteen;

4) 4 hours a week or more - for workers engaged in work with harmful and (or) hazardous working conditions, in the manner established by the Government of the Russian Federation.

The employment contract necessarily reflects the mode of work (Fig. 15).

Rice. 15. A sample of making an entry into an employment contract on the mode of work.

By agreement between the employee and the employer, a part-time or part-time work week may be established. When working on a part-time basis, the employee is paid in proportion to the time worked by him or depending on the amount of work performed by him.

In the case when the individual regime of the employee differs from the general regime established for all employees of the enterprise, for example, the employee has a shortened or part-time working day, etc., this must be reflected in the employment contract (Fig. 16).

Rice. 16. A sample of making an entry into an employment contract on the mode of work.

In the employment contract, it is also necessary to fix the mode of work and rest of a particular employee, if he has his own characteristics established by the rules of the internal labor schedule, collective agreement or any other local act of the enterprise (Fig. 17).

Rice. 17. A sample of making an entry into an employment contract about the specifics of the working hours.

Or, in this case, in the employment contract, you can simply give a reference to this normative act (Fig. 18).

Rice. 18. A sample of making an entry into an employment contract about the specifics of the working hours.

The conditions of overtime work are not reflected in the employment contract, since the need for this arises in certain cases stipulated in the Labor Code of the Russian Federation.

Overtime work - work performed by an employee at the initiative of the employer outside the established working hours, daily work (shift).

According to Art. 99 of the Labor Code of the Russian Federation, involvement in overtime work is carried out with the written consent of the employee in the following cases:

1) during the performance of work necessary for the defense of the country, as well as for the prevention (elimination of the consequences) of an industrial accident or natural disaster;

2) during the performance of socially necessary work on water supply, heating, lighting, sewerage, transport, communications - to eliminate unforeseen circumstances that disrupt their normal functioning;

3) if necessary, perform (finish) the work begun, if non-performance (non-completion) of this work may entail damage or death of the employer's property, state or municipal property, or pose a threat to the life and health of people;

4) during the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the termination of work for a significant number of employees;

5) to continue work in the absence of a shift worker, if the work does not allow a break. In this case, the employer is obliged to immediately take measures to replace the shift with another employee.

In other cases, engaging in overtime work is allowed only with the written consent of the employee and taking into account the opinion of the representative body of employees.

Pregnant women, employees under the age of eighteen, and other categories of employees may not be involved in overtime work in accordance with the law.

Overtime work must not exceed four hours for each employee on two consecutive days and 120 hours per year. For which the employer is obliged to keep accurate records of the overtime performed by each employee.

Time relax- the time during which the employee is free from the performance of labor duties and which he can use at his own discretion.

Rest time is determined by local regulations (internal labor regulations, collective agreement). When preparing these documents, it is necessary to comply with certain rules established by the Labor Code (Articles 106-128 of the Labor Code of the Russian Federation).

According to Article 107 of the Labor Code of the Russian Federation, the rest time is divided into:

1) breaks during the working day (shift). During the working day (shift) the employee is given a break for rest and meals, lasting not more than 2 hours, but also not less than 30 minutes, which is not included during working hours... In jobs where, according to the conditions of production (work), the provision of a break for rest and meals is impossible, the employer provides the employee with the opportunity to rest and eat during working hours. Employees who work in the open air or in closed unheated rooms during the cold season, as well as loaders engaged in loading and unloading operations, are provided with special breaks for heating and rest, which are included in working hours. The employer is obliged to equip the premises for heating and rest of employees

2) daily (inter-shift) rest;

3) days off (weekly uninterrupted rest). The duration of a weekly uninterrupted rest cannot be less than 42 hours (Article 110 of the Labor Code of the Russian Federation);

4) non-working holidays;

5) holidays. Vacation, according to the Labor Code of the Russian Federation, is divided into:

Annual paid;

Annual additional paid;

Additional paid leave for employees studying in educational institutions (student leave);

Without pay;

For pregnancy and childbirth;

For child care;

Employees who have adopted a child.

Granting leave to an employee is formalized by an order, signed by the head of the enterprise or a person authorized by him and announced to the employee against receipt.

All employees of the enterprise have the right to an annual paid leave of 28 calendar days, including Saturday and Sunday, excluding holidays (Fig. 19).

Rice. 19. A sample of making an entry in an employment contract on the provision of annual paid leave.

However, on the basis of the Labor Code of the Russian Federation and other federal laws, the employer is obliged to provide extended leave (lasting more than 28 calendar days) to the following categories of employees:

1) employees under the age of eighteen are provided with a duration of 31 calendar days at a convenient time for them (Article 267 of the Labor Code of the Russian Federation).

2) the teaching staff of the educational institution is provided with an annual basic extended paid leave, the duration of which is determined by the Government of the Russian Federation (Article 334 of the Labor Code of the Russian Federation).

3) disabled people employed in organizations, regardless of organizational and legal forms and forms of ownership - at least 30 calendar days (Article 23 of the Federal Law of November 24, 1995 No. 181-FZ "On social protection of disabled people in the Russian Federation" (as amended on May 29 .2002);

4) elderly citizens and disabled people living in inpatient social service institutions working on the terms of an employment contract - 30 calendar days (Article 13FZ dated 02.08.1995 No. 122-FZ "On social services for elderly citizens");

5) civil servants - at least 30 calendar days for certain categories of vacation m. longer duration (Art. 18FZ of July 31, 1995 No. 119-FZ "On the fundamentals of the civil service of the Russian Federation" (as amended on 11/07/2000));

6) municipal employees - at least 30 calendar days for certain categories of vacation m. longer duration (Article 17 of the Federal Law of 08.01.1998 No. 8-ФЗ "On the Foundations of Municipal Service in the Russian Federation" (as amended on 25.07.2002));

7) judges - 30 working days, 45 working days in areas equated to the regions of the Far North, and in areas with difficult and unfavorable climatic conditions, where coefficients to wages are established, 51 working days in the regions of the Far North. (Article 19 of the Federal Law of the Russian Federation of 06/26/1992 No. 3132-I "On the status of judges in the Russian Federation" (as amended on 12/15/2001));

8) employees of the prosecutor's office (prosecutors and investigators, scientific and pedagogical workers) - 30 calendar days (Article 414 of the Federal Law of the Russian Federation of 01.17.1992 No. 2202-I "On the Prosecutor's Office of the Russian Federation" (as amended on 25.07.2002)). 54 calendar days in the regions of the Far North, 46 calendar days in areas equated to the regions of the Far North;

9) prosecutors and investigators working in areas with difficult and unfavorable climatic conditions - at least 45 calendar days. The specific duration is established by the Government of the Russian Federation (Decree 06.03.1996 No. 242) - 54 calendar days in the regions of the Far North, 46 calendar days (in areas equated to the regions of the Far North;

10) tax police officers - 30 calendar days, 45 calendar days (when serving in areas with severe climatic conditions). (Art. 13FZ dated June 24, 1993 No. 5238-I "On federal tax police bodies" (as amended on July 25 .2002), Regulations on the passage of service in the tax police of the Russian Federation (Resolution of the Supreme Council of the Russian Federation of 20.05.1993 No. 4991-I (as amended on 30.06.2002));

11) for police officers - 30 days plus the time required to travel to the place of vacation and back. (Article 20 of the Federal Law of the Russian Federation of 18.04.1991 No. 1026-I "On the police" (as amended on 25.04.2002);

12) employees of customs authorities - 30 calendar days excluding travel time to the place of vacation and back. (Art. 36FZ of 21.07.1997 No. 114-FZ "On service in the customs authorities of the Russian Federation" (as amended on 25.07.2002));

13) Members of the Federation Council, Deputies of the State Duma - 48 working days. (Articles 28 and 40 of the Federal Law of the Russian Federation of 08.05.1994 No. 3-FZ "On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation" (as amended on 25.07.2002));

14) assistants of a member of the Federation Council, a deputy of the State Duma, working under an employment contract for 36 working days;

15) citizens employed in work with chemical weapons - 56 calendar days (for the first group of jobs), 49 calendar days (for the second group of jobs). (Article 5 of the Federal Law of 07.11.2000 No. 136-FZ "On social protection of citizens employed in work with chemical weapons" (as amended on 25.07.2002));

16) rescuers of professional rescue services, professional rescue teams - 30 days - having continuous work experience in professional rescue services, professional rescue teams in the positions of rescuers up to 10 years, 35 days - having work experience in the above services and formations for more than 10 years, 40 days - with work experience in the above services and formations for more than 15 years. (Article 28 of the Federal Law of 08.22.1995 No. 151-ФЗ "On emergency services and the status of rescuers" (as amended on 03.24.2001)).

17) employees who have entered into an employment contract for up to two months are provided with paid vacations or compensation is paid upon dismissal at the rate of two working days per month of work (Article 291 of the Labor Code of the Russian Federation).

18) employees engaged in seasonal work are provided with paid vacations at the rate of two calendar days for each month of work (Article 295 of the Labor Code of the Russian Federation).

As for the leave of scientific workers with a scientific degree, in accordance with the decree of the Government of the Russian Federation of 12.08.1994 N 949 "On annual leaves of scientific workers with a scientific degree", the provision of extended leaves for doctors of science - 48 working days, and for candidates of science - 36 working days days is not an obligation, but right scientific institutions (organizations), financed from the federal budget... These vacations are granted to scientific workers holding full-time positions, scientific degrees for which are provided for by tariff and qualification requirements, agreed and approved in the prescribed manner.

Annual additional paid vacations are provided:

1) employees engaged in work with harmful and (or) hazardous working conditions. Lists of industries, jobs, professions and positions, work in which gives the right to additional paid leave for work with harmful and (or) hazardous working conditions, as well as the minimum duration of this leave and the conditions for its provision are approved by the Government of the Russian Federation, taking into account the opinion of the Russian Trilateral Commission on regulation of social and labor relations and are stipulated in the collective agreement (Fig. 20);

Rice. 20. Sample list of occupations with harmful working conditions, which are granted additional paid leave.

2) employees with a special nature of work. By the decree of the USSR Council of Ministers and the All-Union Central Council of Trade Unions dated 02.07.90 No. 647, the List of industries, works, professions, positions, work in which gives the right to additional leave for underground, harmful and difficult working conditions at enterprises, in associations, organizations of the coal and shale industries and in mine construction;

3) employees with irregular working hours. This category of employees is granted an additional annual paid leave, the duration of which is determined by the collective agreement or the internal labor regulations of the enterprise and which cannot be less than three calendar days. In the event that such leave is not granted, overtime overtime, with the written consent of the employee, is compensated as overtime.

In organizations financed from the federal budget, the procedure and conditions for the provision of annual additional paid leave to employees with irregular working hours are established by the Government of the Russian Federation, and in organizations financed from the budget of the constituent entity of the Russian Federation - by the authorities of the constituent entity of the Russian Federation, in organizations financed from the local budget - by the authorities local government.

4) employees working in the Far North and equivalent areas;

5) in other cases provided for by federal laws.

In accordance with the current legislation, additional vacations are provided to the following categories of citizens:

Victims of the Chernobyl disaster (clause 9 of article 14, clause 4 of article 19, clause 2 of article 20 of the Law of the Republic of Kazakhstan "On social protection of citizens exposed to radiation as a result of the catastrophe at the Chernobyl nuclear power plant" dated 05.15.91 No. 1244 -one);

Those exposed to radiation as a result of nuclear tests at the Semipalatinsk test site (clause 15 of article 2 of the Federal Law "On social guarantees to citizens exposed to radiation as a result of nuclear tests at the Semipalatinsk test site" dated 10.01.02 No. 2-FZ);

Medical, veterinary and other workers directly involved in the provision of anti-tuberculosis care (Federal Law "On the Prevention of the Spread of Tuberculosis in the Russian Federation" of 18.06.01 No. 77-FZ);

Rescuers of professional emergency rescue services, emergency rescue teams for their participation in emergency response operations (clause 6, article 28 of the Federal Law FZ "On emergency rescue services and the status of rescuers" dated 08.22.95 No. 151-FZ);

Employees of the Prosecutor's Office (Article 414 of the RF Law "On the Prosecutor's Office of the Russian Federation" dated 17.01.92 No. 2202-1);

Health care workers who diagnose and treat HIV-infected people, as well as people who work with materials containing the human immunodeficiency virus (Article 22 of the Federal Law "On Preventing the Spread in the Russian Federation of a Disease Caused by the Human Immunodeficiency Virus (HIV)" dated March 30 .95 No. 38-FZ);

General practitioners (family doctors) and nurses of general practitioners (family doctors) of the annual additional paid 3-day leave for continuous work in these positions (Resolution of the Government of the Russian Federation "On the establishment of general practitioners (family doctors) and nurses of general practitioners (family doctors) annual additional paid 3-day leave for continuous work in these positions ”dated 30.12.98 No. 1588;

Individuals working in the Far North regions are also provided with additional paid vacations lasting 24 calendar days, and those working in localities equated to the Far North regions - 16 calendar days.

At the same time, the employer, taking into account his production and financial capabilities, can independently establish additional holidays for employees. Moreover, the procedure and conditions for the provision of these leaves are determined by collective agreements or other local regulations.

When calculating the total duration of the annual paid leave, additional paid leaves are summed up with the annual basic paid leave (Fig. 21).

Rice. 21. A sample of making an entry in an employment contract on the provision of additional paid leave.

From January 1, 2005, the employer can set the size of a number of guarantees and compensations independently. This applies, for example, to travel expenses, surcharges for the rotational work method, etc. In this case, the amount of compensation can be written directly in the employment contract or reference can be made to local regulations where these compensation are provided (collective agreement, internal regulations, etc. . P.). In the latter case, the entry in the employment contract will look like this (Fig. 22):

Rice. 22. A sample of making an entry in an employment contract on guarantees and compensations.

If the work of this employee is associated with difficult, harmful and / or dangerous working conditions, then the employment contract must necessarily contain an appropriate clause, since in this case the employer is obliged to provide the employee with certain compensations and benefits (issuance of personal protective equipment, organization of therapeutic and prophylactic meals etc.) (Figure 23).

Rice. 23. Sample list of occupations with harmful working conditions, which are issued with personal protective equipment.

The following entry is made in the employment contract (Fig. 24):

Rice. 24. A sample of making an entry in an employment contract on social and living conditions.

In this clause of the employment contract, the following should be noted (Fig. 25):

The size of the tariff rate or salary;

The date of receipt of wages (in accordance with Article 136 of the Labor Code of the Russian Federation, wages must be paid twice a month);

Grounds and procedure for bonuses.

Rice. 25. A sample of making an entry in an employment contract with the terms of remuneration.

In addition to the essential conditions, the employment contract may contain other conditions that are not mandatory, but which the employee and the employer enter into the employment contract by mutual agreement.

In market conditions, the hunt for other people's secrets (economic espionage) plays an important role. Each enterprise has its own secrets - production, economic, commercial, the disclosure of which can lead not only to great financial losses, but also to the collapse of the enterprise. The term "espionage" (economic, industrial, commercial, etc.) means active actions to collect certain information that is not publicly available. The success of industrial and entrepreneurial activities to a large extent depends on the ability to dispose of such a valuable product, since only that information that is required by the market, but is in the same hands, can be used profitably.

For example, some enterprises profit only from their monopoly position in the market. And in the event of information leakage, even a small enterprise is able to quickly organize a similar production.

According to experts, the loss of 20% of information constituting a trade secret, in 60 cases out of 100, leads to the bankruptcy of the company, and losses as a result of the actions of competitors using espionage in the credit and financial sphere amount to 30% of the damage in the global banking system.

Secret information is obtained by various technical means. For example, wiretapping of telephone conversations, premises where secret conversations are conducted, the introduction of a computer system of an enterprise, etc. The use of technical means depends on the information that the subject intends to receive. One type of information can be stolen, another listened to, the third - photographed or sketched, the fourth is recorded on a tape recorder, the fifth - filmed with a video camera, etc. A whole set of special measures is often used to obtain it. Appropriate protection measures are taken depending on the type of information received. For example, there are devices with the help of which it is possible to remove speech information with a laser beam from a distance of up to 500 m due to the vibration of window panes. In response, to prevent information leakage in this way, the German firm Siemens began producing special window frames that attenuate the penetration of electromagnetic radiation in certain ranges.

Migration of specialists, especially those who dealt with confidential information, is the main and difficult to control channel of information leakage. For example. the practice of various types of combination of employees, primarily in research organizations, where professional knowledge, experience and skills acquired at the main place of work are used, leads to the fact that the intellectual product of the enterprise, which is not properly registered as its property, is used by a competing organization.

The second most important channel for leakage of commercial information is publications in print, deposited manuscripts, monographs, as well as oral reports and speeches of employees. It is difficult to expect that employees, whose professional positions and personal ambitions are often in conflict with the interests of the enterprise in the matter of maintaining confidential information, will objectively assess what may be open to the public. As experts note, “the Soviet habit of employees to share with each other (the so-called traditional exchange of experience) is one of the essential factors contributing to the leakage of information commercially important for companies” (“Business and Security” - CMC “Centurion”, 1992).

A special channel for the loss of intellectual property or its commercial value is joint work with other firms, contacts with clients and investors, where negotiations take a special place. So, for example, foreign firms quite often, in order to collect information of interest to them, go to the creation of joint ventures.

Employees of the company can also give out secrets. If people outside the enterprise need to overcome physical and technical obstacles to gain access to secrets, then it is much easier for employees of the company to do this. They already have such information or have the ability to collect it. The motivation for such actions can be self-interest, revenge, etc. And here it is the task of the security service to timely identify among the service personnel employees who intend to use the information at their disposal for sale to others or use for their own purposes for gaining benefits. Therefore, when forming a team of employees, it is necessary to take into account which of them to trust their secrets, and who not.

Since 1991, the Russian Federation has repeatedly adopted legislative and by-laws that regulate the protection of commercial secrets (Government Decree No. 35 of 12/05/1991, Federal Law "On Information, Informatization and Protection of Information" No. 24-FZ of 02/20/1995, Art 139 of the Civil Code of the Russian Federation, subparagraph "c" of clause 6 of article 81 of the Labor Code of the Russian Federation, etc.). And on July 29, 2004, the Federal Law "On Commercial Secrets" was adopted, summarizing all the available early information.

It provides basic concepts, regulates labor relations associated with commercial secrets, and establishes responsibility for its disclosure:

1) commercial secret - confidentiality of information, which allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits;

2) information constituting a commercial secret - scientific and technical, technological, production, financial and economic or other information (including those constituting trade secrets (know-how), which has actual or potential commercial value due to its being unknown to third parties, to which there is no free access on a legal basis and in respect of which the owner of such information has introduced a commercial secret regime;

3) commercial secret regime - legal, organizational, technical and other measures taken by the owner of information constituting a commercial secret, measures to protect its confidentiality;

4) owner of information constituting a commercial secret - a person who owns information constituting a commercial secret, on a legal basis, restricted access to this information and established a commercial secret regime in relation to it;

5) access to information constituting a commercial secret - familiarization of certain persons with information constituting a commercial secret, with the consent of its owner or on any other legal basis, provided that this information is kept confidential;

6) the transfer of information constituting a commercial secret - the transfer of information constituting. a commercial secret and recorded on a tangible medium, by its owner to the counterparty on the basis of an agreement in the amount and on the terms stipulated by the agreement, including the condition that the counterparty takes measures established by the agreement to protect its confidentiality;

7) counterparty - a party to a civil contract to which the owner of information constituting a commercial secret has transferred this information;

8) provision of information constituting a commercial secret - the transfer of information constituting a commercial secret and recorded on a tangible medium, by its owner to state authorities, other state bodies, local self-government bodies in order to perform their functions;

9) disclosure of information constituting a commercial secret - an action or inaction as a result of which information constituting a commercial secret in any possible form (oral, written, other form, including the use of technical means) becomes known to third parties without the consent of the owner such information either contrary to an employment or civil contract. "

In order to protect your intellectual property from disclosure, you need to take certain measures. This is primarily the definition of information constituting a commercial secret. Incorrect or untimely allocation of data that needs to be protected significantly reduces the effectiveness of this system, or even completely negate it.

The criteria that determine what information must be attributed to the list of information constituting a commercial secret of an enterprise may be as follows:

The information must be commercially beneficial to you or beneficial to your competitor. As a criterion for the importance of specific information, a quantitative indicator of the amount of damage caused is taken. In other words, the most important, from the point of view of the security of the enterprise, is information, the leakage of which, for example, threatens the structural integrity of the enterprise or contributes to the blocking of channels for the flow of material resources;

The information should not be publicly known or legally available to the public;

The information must not be classified as government secrets or protected by copyright or patent law;

Information constituting a confidential secret must be recorded in writing or other material form or be in the exclusive jurisdiction of the enterprise;

The information must be specially marked, that is, the access stamp must be affixed and the necessary security measures must be provided for it.

The first thing to decide when organizing the protection of commercial secrets is to determine the range of information constituting a commercial secret, as well as their possible distribution into categories of importance depending on their value to the enterprise, the nature and amount of damage that may be caused to the enterprise by disclosing this information. The solution to this problem should be dealt with especially carefully. If any data, direct or indirect, are overlooked, then all measures taken may be ineffective. On the other hand, unnecessary measures to restrict access to information will complicate work and lead to unjustified economic costs.

All information constituting a commercial secret of an enterprise is reflected in the "List of information constituting a commercial secret of an enterprise" approved by the head of the enterprise. Practice shows that it is better to solve this issue collectively. Therefore, in order to develop the List, the head of the enterprise, by his order, creates a commission of the most qualified and competent specialists of the main divisions and representatives of the security service.

However, this does not mean that it is necessary to acquaint all involved experts with specific information that may constitute a confidential secret, if they were not previously familiar with this information due to the nature of their activities. In most cases, it is sufficient that one of them is aware of the details of a particular issue under consideration. This approach makes the work of the group more rational and excludes possible leakage of commercial information already at the first stage.

Highlight all the activities of the enterprise that are profitable at the moment;

Based on the available data on the sales market, assess whether the level of profit for this type of activity exceeds the same indicators for other enterprises;

Determine the likely future profitability of this activity.

The available information is then subdivided into the following groups:

1) information about financial activities; Financial documents provide a comprehensive view of the financial condition of the company. For example, information about loans can be used to identify and clarify commercial ideas and projects. Information on the size of the payroll makes it possible to conduct an approximate assessment of the personnel of the enterprise

2) information about the market. Market research, work with potential clients are of certain interest as a finished information product obtained in the course of costly activities. Information of this kind must be strictly protected, since it is with its help that an enterprise can increase its market share.

3) information about the production, performance of work or the provision of services. The volume and range of products or the specificity of the services provided is an important economic characteristic of the enterprise, which gives an idea of ​​the technologies used by the enterprise, the presence of its own research center, etc. for the enterprise, and information, the dissemination of which is undesirable due to the reduction of this kind of benefit.

4) information about scientific developments (software, telecommunications, biotechnology, equipment manufacturing, etc.).

5) information about the logistics system. These data on the protection of which are often overlooked (the need for materials, raw materials, accessories and details of structures and interiors, the sources of meeting these needs) give a complete picture of the qualitative and quantitative composition of the products.

6) information about the personnel of the enterprise. Analysis of this information gives third parties an idea of ​​some parameters of the enterprise - labor productivity, production level, the presence of contacts with foreign suppliers or customers, etc. However, using this information, competitors simply outbid the best specialists of the enterprise, thereby reducing its production performance and demoralizing the entire workforce of the enterprise.

7) information about the principles of enterprise management. The efficiency of the entire enterprise directly depends on the extent to which the administration rationally carries out the operational management and management of the enterprise. This:

Information about the applied and prospective production management methods;

Information about the facts of negotiations, subjects and purposes of meetings and meetings of management bodies;

Information about the plans of the enterprise to expand its activities in the performance of work, the provision of services and in the field of production, the conditions of mergers, acquisitions, separation and merger of companies associated with the entire enterprise, etc.

8) other information. Among other information that is the subject of a commercial secret of an enterprise, one can single out elements of security systems, codes and procedures for accessing information networks and centers, principles of organizing the protection and protection of commercial information and commercial secrets at an enterprise.

However, it must be remembered that a trade secret regime cannot be established in relation to the following information:

1) information contained in the constituent documents of a legal entity, and documents confirming the fact of making entries about legal entities and individual entrepreneurs in the relevant state registers;

2) information contained in documents giving the right to carry out entrepreneurial activity;

3) information on the composition of the property of a state or municipal unitary enterprise, state institution and on their use of funds from the respective budgets;

4) information on environmental pollution, the state of fire safety, sanitary-epidemiological and radiation conditions, food safety and other factors that have a negative impact on ensuring the safe operation of production facilities, the safety of every citizen and the safety of the population as a whole;

5) information on the number, on the composition of employees, on the remuneration system, on working conditions, including on labor protection, on the indicators of industrial injuries and occupational morbidity, and on the availability of vacant jobs;

6) information on employers' arrears in payment of wages and other social benefits;

7) information on violations of the legislation of the Russian Federation and the facts of bringing to responsibility for committing these violations;

8) information on the conditions of tenders or auctions for the privatization of objects of state or municipal property;

9) information on the size and structure of income of non-profit organizations, on the size and composition of their property, on their expenses, on the number and remuneration of their employees, on the use of free labor of citizens in the activities of a non-profit organization;

10) information on the list of persons entitled to act without a power of attorney on behalf of a legal entity.

At the next stage, the information is divided into:

1) closed. Closed information, as a rule, is available only to the narrowest circle of company officials (general director, chief accountant, head of the legal department, heads of other departments, depending on its nature).

2) for official use. Information for official use is available to a wider circle of employees, but cannot be disseminated among the rest of the employees.

3) information with limited access. Restricted information assumes the presence of certain persons who are restricted or prohibited from accessing information that constitutes, or in its potential may constitute, a commercial secret of the enterprise.

4) information for free use.

After that, the finished List is communicated to the structural divisions and co-executors as regards them in order to bring documents containing confidential information into proper form. If such information is available in the document, the title page is stamped in the upper right corner. For example, "Trade secret" or "For official use".

The exclusion of information from the category of constituting a commercial secret of an enterprise is carried out at the end of the deadline for which it was established or earlier, due to the occurrence of certain circumstances, for example, the appearance of a new sample, information leakage to a competitor, etc.

The decision on the early exclusion of information from the category constituting a commercial secret is made by the same persons who approved this List.

After approval of the "List of information constituting a commercial secret of the enterprise", the enterprise must develop and approve the "Regulation on confidential information (commercial secret)" (Appendix 1), in which, according to Art. 10 of the Federal Law "On Commercial Secrets" it is necessary to consolidate the following measures to protect the confidentiality of information:

1) determination of the list of information constituting a commercial secret;

2) restricting access to information constituting a commercial secret by establishing a procedure for handling this information and monitoring compliance with this procedure;

3) registration of persons who have gained access to information constituting a commercial secret, and (or) persons to whom such information was provided or transferred;

4) regulation of relations on the use of information constituting a commercial secret by employees on the basis of labor contracts and counterparties on the basis of civil law contracts;

5) drawing on material carriers (documents) containing information constituting a commercial secret, the stamp "Commercial secret" indicating the owner of this information (for legal entities - the full name and location, for individual entrepreneurs - the surname, name, patronymic of a citizen who is individual entrepreneur, and place of residence).

Moreover, the employee must be familiarized with the list of data constituting a commercial secret against signature, as well as with responsibility for their disclosure.

At the same time, when concluding an employment contract, it is necessary to conclude an agreement on non-disclosure of commercial secrets, or at least include such a clause in the employment contract.(Figure 26).

Rice. 26. A sample of making an entry into an employment contract on responsibility for disclosing confidential commercial information (commercial secret).

When if an agreement on non-disclosure of commercial secrets has not been concluded or the receipt has not been taken, then the employee cannot be liable for the preservation of commercial secrets.

According to Article 11 of the Federal Law "On Commercial Secrets", an employee is obliged, in order to protect the confidentiality of information:

1) comply with the trade secret regime established by the employer;

2) not to disclose information constituting a commercial secret, the owners of which are the employer and his counterparties, and without their consent not to use this information for personal purposes;

3) not to disclose information constituting a trade secret, owned by the employer and his counterparties, after the termination of the employment contract within the period provided for by the agreement between the employee and the employer concluded during the term of the employment contract, or within three years after the termination of the employment contract if the specified agreement was not concluded;

4) compensate the damage caused to the employer if the employee is guilty of disclosing information constituting a commercial secret, which became known to him in connection with the performance of his labor duties;

5) transfer to the employer, upon termination or termination of the employment contract, the material media available to the employee, containing information constituting a commercial secret.

An individual entrepreneur who is the owner of information constituting a commercial secret and does not have employees with whom labor contracts have been concluded, takes measures to protect the confidentiality of information specified in part 1 of article 10 of the Federal Law "On commercial secrets" with the exception of clauses 1 and p. 2, as well as the provisions of clause 4 concerning the regulation of labor relations.

After the owner of the information constituting a commercial secret takes the above measures, the commercial secret regime is considered established.

On the basis of Article 10 of the Federal Law "On Trade Secrets", the employer has the right to apply, if necessary, the means and methods of technical protection of confidential information, as well as other measures that do not contradict the legislation of the Russian Federation. The adoption of special measures aimed at protecting intellectual property depends, first of all, on the owner of the information, the competitive environment that is developing in this environment, the value that production or commercial information represents for them, and other factors.

Of course, keeping a secret for its owner, if no one else knows it, is not very difficult. If, however, he himself does not allow third parties to see him and is not talkative or too gullible. In this situation, the information carrier (document, diskette, object) should not be stored in a desk, but in a safe or other place inaccessible to other persons.

Enterprises, firms, holdings, etc., where there is more than one owner of information, but several, moreover, employees who are not allowed to production (commercial) secrets work, represent a more complex object of protection. The question arises about the need to ensure external and internal security of structural units. To do this, you can use private security companies, private security services or your own security service.

Measures for the protection of confidential information are divided into:

1) External activities. This is the study of partners, customers with whom you have to conduct business, commercial activities, collect information about their reliability, solvency and other data. If necessary, a study of the connections of employees of a private company is carried out. Persons showing interest in the company, its activities, employees, are found out, whether they belong to a competing organization or to a criminal group. If possible, it is desirable to establish what is the essence of this interest and who needed this or that information. Will it be repeated in the future, i.e. what can be expected from a competitor or criminal elements.

2) Internal events. This is the selection, verification of persons wishing to go to work in a private enterprise. Studying their personal data, behavior at the place of residence and previous work, personal and business qualities, positive and negative aspects of the studied person, interpersonal relationships. Was in conflict with the law (criminal record, administrative detention, connections with the underworld). During the analysis of the collected materials, it is found out if there are any contradictions in them. Additionally, a person may be tested to determine moral or other qualities. Attention is drawn to the possible work in a competing firm and the reasons for leaving. After that, a conclusion is made about the suitability of the candidate for work in this company. At this stage of studying the employee, interest in him does not end. Periodically or depending on the behavior, his actions, affecting the interests (secrets) of the enterprise, continue to be studied and analyzed. It is possible that a competitor may specifically send his people to work in an enterprise of interest to him in order to obtain valuable information about him.

According to the "Regulations on the procedure and terms of storage of documents of joint stock companies" approved by the Resolution of the Federal Commission for the Securities Market of July 16, 2003 N 03–33 / ps, documents marked "commercial secrets" must be kept in special fireproof cabinets or safes. Particular attention is paid to the places and methods of storing keys. Keys must not be lost or transferred for storage to others, even those who are especially trusted.

In addition, the following measures must be observed when working with these documents:

1) The transfer of documents from one structural unit to another is recorded in the corresponding register;

2) The originals of the company's documents are subject to storage. In case of loss or damage to the original document of the company, a duly certified copy of such a document is subject to storage. For each case of loss or damage to the original document of the company, an appropriate act must be drawn up indicating the reason for the loss or damage, attached to the copy of the document of the company transferred to storage and to be stored with it. The specified act must be signed by the head of the structural unit and approved by the sole executive body of the company, and in the event of loss or damage to accounting documents, financial statements - also by the chief accountant of the company.

3) All documents generated in the activities of the company must be formed into documentary files in accordance with the requirements of the nomenclature of the company's affairs approved in the prescribed manner.

4) Documents subject to storage, prior to their transfer to the archive of the company, are stored in the working rooms at the location of the executive body of the company. The documents of the company transferred for storage to the archives of the company must be kept in premises specially designated for this purpose. The company's documents stored in the company's archives must be located in lockable cabinets that ensure their complete safety, protect documents from dust and exposure to sunlight.

5) Ballots for voting, including ballots recognized as invalid, must be sealed by the counting commission and deposited in the archives of the company after drawing up the minutes of the counting commission on the results of voting at the general meeting. The storage of sealed voting ballots shall be carried out by the company in a special lockable sealed box or a special cabinet with lockable cells. For each fact of opening sealed voting ballots in storage by a person (s) authorized by the company for such opening, an appropriate act must be drawn up.

6) Issuance of company documents for their presentation to the company's shareholders in order to provide shareholders with access to company documents is made on receipt of an employee (a person who is in labor or civil law relations with the company) authorized by the company to receive company documents. The issuance of documents to employees of the company (persons who are in labor or civil law relations with the company) is carried out on receipt with the permission of the sole executive body of the company or a person authorized by him. Documents are issued for temporary use to employees of the company for a period not exceeding one month. After the expiration of the specified period, the document must be returned to the place of its storage. For each issued document, a substitute card is entered, which indicates the type (name) of the document, the date of its issue, the last name, first name, patronymic of the person to whom the document was issued, the date of its return, as well as columns for receipts for receipt and acceptance of the document.

7) In the event of the liquidation of a company, if it had an agreement with the institution of the system of the Federal Archival Service of Russia and some of its documents are attributed to the composition of the Archive Fund of the Russian Federation, documents of permanent storage and personnel are transferred to the appropriate state archive. If there was no contractual relationship with the archive, then in this case the state archive is obliged to accept for storage only documents on the personnel of the company's employees. The place of storage of the remaining documents is determined by the chairman of the liquidation commission or the bankruptcy commissioner.

8) In the event of reorganization of the company, entailing its termination, the original documents of the company that are in storage and subject to storage may be transferred only to one of the newly created companies as a result of the reorganization. Unless otherwise established by an agreement on merger or acquisition (decision on transformation) and (or) a deed of transfer or a decision on division or separation and (or) a separation balance sheet, stored and subject to storage originals of the company's documents are subject to transfer to the newly created company as a result of reorganization. with the highest net asset value.

If information related to confidential was disclosed by an employee of the enterprise, who, in connection with the performance of his job duties, gained access to it, then according to Art. 14 of the Federal Law "On Commercial Secrets", this employee, in the absence of corpus delicti in his actions, bears disciplinary responsibility in accordance with the legislation of the Russian Federation.

For the commission of a disciplinary offense, that is, failure to perform or improper performance by an employee through his fault of the labor duties assigned to him, the employer, in accordance with Article 192 of the Labor Code of the Russian Federation, has the right to apply the following disciplinary sanctions:

1) remark;

2) a reprimand;

3) dismissal on appropriate grounds.

An employee can be dismissed only if a secret protected by law has become known to him in connection with the performance of his labor duties, and not in any other way. However, it will be rather difficult to prove the very fact of disclosing information by a specific employee.

In the event of information leakage, the Employer has the right to demand compensation for damages caused by a person who terminated labor relations with him, if this person is guilty of disclosing information constituting a commercial secret, access to which this person received in connection with the performance of his labor duties, and if the disclosure of such information followed within the period established in accordance with clause 3 of part 3 of article 11 of the Federal Law "On commercial secrets".

However, the damage or loss caused is not reimbursed by the employee or the person who terminated the employment relationship, if the disclosure of information constituting a commercial secret was the result of force majeure, extreme necessity or the employer's failure to fulfill the obligation to ensure the commercial secret regime.

The employee has the right to appeal in court against the illegal establishment of a trade secret regime in relation to information to which he received access in connection with the performance of his labor duties.

The head of the enterprise reimburses the organization for losses caused by his guilty actions in connection with the violation of the legislation of the Russian Federation on commercial secrets. In this case, losses are determined in accordance with civil law.

The employee's material liability for damage caused to the employer is regulated by chapters 37 and 39 of the Labor Code of the Russian Federation. According to Article 232 of the Labor Code of the Russian Federation, the party to the employment contract (employer or employee) that caused damage to the other party compensates for this damage in accordance with the Labor Code of the Russian Federation and other federal laws. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than that provided for by the Labor Code of the Russian Federation or other federal laws. Termination of an employment contract after causing damage does not entail the release of the party to this contract from material liability provided for by the Labor Code of the Russian Federation or other federal laws.

Material liability can be specified:

1) An employment contract (fig. 27).

Rice. 27. A sample of making an entry into an employment contract on material liability.

2) By agreements concluded in writing attached to it (Appendix 3).

Material liability in full amount of the damage caused shall be borne by the employee in the following cases:

1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is fully liable for damage caused to the employer in the performance of the employee's labor duties;

2) shortage of valuables entrusted to him on the basis of a special written contract or received by him under a one-time document;

3) deliberate infliction of damage;

4) causing damage in a state of alcoholic, drug or toxic intoxication;

5) damage caused as a result of criminal actions of an employee, established by a court verdict;

6) infliction of damage as a result of an administrative violation, if such is established by the relevant state body;

7) disclosure of information constituting a secret protected by law (official, commercial or other), in cases stipulated by federal laws;

8) damage caused not during the performance of the employee's labor duties.

Based on the Decree of the Government of the Russian Federation of November 14, 2002 No. 823 "On the procedure for approving the lists of positions and jobs replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) financial liability" Ministry of Labor and Social Development The Russian Federation adopted Resolution No. 85 of December 31, 2002 “On approval of the lists of positions and jobs replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (brigade) liability, as well as standard forms of agreements on full liability "(Appendix 2).

When employees jointly perform certain types of work related to storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to delineate the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, collective (brigade) material liability can be introduced.

A written agreement on collective (brigade) material liability for damage is concluded between the employer and all members of the team (brigade). Under the agreement on collective (brigade) material responsibility (Appendix 4), the values ​​are entrusted to a pre-established group of persons, who are fully financially responsible for their shortage. To be exempted from material liability, a member of the team (brigade) must prove the absence of his guilt (Article 245 of the Labor Code of the Russian Federation).

In case of voluntary compensation for damage, the degree of guilt of each member of the team (brigade) is determined by agreement between all.

The terms of the employment contract can be changed only by agreement of the parties and in writing. Therefore, it is advisable at the end of the employment contract the following entry (Fig. 28).

Rice. 28. Sample of making a final entry into an employment contract.

An employment contract comes into force:

From the date of its signing by the employee and the employer, unless otherwise established by federal laws, other regulatory legal acts or an employment contract;

From the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

The employee is obliged to start fulfilling his job duties from the day specified in the employment contract. If the start date of work is not stipulated in the employment contract, the employee must start work on the next business day after the entry into force of the contract.

An employee is considered to be hired from the date specified in the order (order) of the employer, which must correspond to the date of hiring specified in the employment contract.

If the employee does not start work on time without a valid reason within a week, the employment contract is canceled.

After the proper execution of the employment contract, one copy remains in the personnel management service, and the second is issued to the employee.

In this situation, it will not be superfluous if the employee on the employment contract remaining at the enterprise writes: “I received the contract” and signs it.

Rice. 29. A sample of filling out the "Book of registration of employment contracts".

The concepts of an employment agreement and an employment contract are confused with enviable regularity. In fact, these are two fundamentally different types of documents, and on the one hand, successful employment depends on the knowledge of this difference, if you are an applicant, and on the other hand, successful personnel management, if you specialize in recruiting.

Features of the labor agreement

What are the differences between agreement and contract? In practice, there are a lot of differences, and they are actually cardinal. When concluding an agreement:

• the order for employment is not approved;
• an entry is not made in the work book;
• hours worked are not subject to accounting;
• annual leave and sick leave are not paid;
• insurance is not provided.

Thus, the entire social package is excluded. In other words, when drawing up an employment agreement, the employee accepts the conditions at his own peril and risk. The advantages of such an agreement are that it is much easier to find a place of service, as well as to change it, and the amount of paperwork is noticeably reduced. However, the disadvantages are obvious - no social guarantees. Essentially, there are certain similarities to a work contract where a contractor is signed to complete a fixed amount of work within a specific time frame. Separately, it is worth highlighting that an employment agreement cannot be signed if the duties performed are of a regular nature.

After signing the agreement, the parties have mutual rights and obligations, which they must strictly observe. According to him, the citizen undertakes to work and obey the working order in force in the organization, and the employer undertakes to provide the citizen with the work specified in the document and pay wages on time.

Before concluding an employment contract, the employer is obliged to familiarize the future employee with the organization's local regulations, job descriptions, work hours, terms of remuneration. After that, the completed contract forms are signed, an order is issued to hire a person and a corresponding entry is made in his work book.

Employment contract, form

The meaning of an employment contract

According to Art. 37 of the Constitution of the Russian Federation, each citizen can independently choose their type of activity and specialty. Work must be carried out in conditions that do not contradict the requirements of safety and hygiene. And the remuneration must be paid by the employer on time and in full twice a month.

The contract, completed and signed by the parties, is the fundamental legal fact that determines the emergence, change and termination of the service relationship between the employer and the employee. It establishes the legal relationship between the worker and the employer and is a set of legal norms that regulate the service relationship between the parties who signed the document. A sample employment contract with an employee in 2020 can be downloaded in our article.

It is necessary to distinguish an employment contract from contracts of a civil nature (contract, author's, performance of a certain type of work). Despite their similarities, they differ in the following parameters:

• the subject of an employment contract is the employee's labor. The final result (book, painting, project) becomes the subject of civil law contracts;
• an employment contract involves the personal performance of work, it cannot be redirected to another performer. In civil law, this obligation must be enshrined in the text of the document itself;
• with an employment contract, the employee must obey the internal rules of the organization. There is no such obligation in civil law;
• in an employment contract, the employer must create normal and safe working conditions. Under civil law, the employee independently organizes his workplace.

Types of employment contracts

Most often, an employment contract with employees (a completed sample can be viewed in our material) is concluded for an indefinite period of time, that is, it does not specify the validity period of the document. But in some cases, it may set a time frame depending on the nature of the work or the conditions in which it will be performed. Such cases are considered in Part 1 of Article 59 of the Labor Code of the Russian Federation.

By expiration date:

• prisoners for an indefinite period;
• prisoners for a specified period (no more than 5 years).

It should be noted that a fixed-term employment contract may become an indefinite one. If, after the expiration of the time specified in it, the employee continues to work, the document loses its urgency and is considered concluded for an indefinite period. At the same time, a new, unlimited, contract can be omitted.

At the same time, an open-ended contract can also become a fixed-term one, but this must be justified by points Art. 59 of the Labor Code of the Russian Federation... To transfer, you need to terminate the previous one and conclude a new contract for a certain period.

By the nature of the working relationship:

• at the main place of employment;
• at a part-time job (part-time job is impossible without concluding an employment contract, this is the main condition for this type of employment);
• temporary work (if the nature of the work requires it to be completed in less than 2 months. It can also be when replacing an employee who is on sick leave);
• short-term contract;
• with seasonal workers;
• with employees working from home;
• on the state (municipal) service.

It should be borne in mind that labor legislation and other legal acts related to labor relations do not apply to certain categories of citizens, provided that they are not employers or their representatives:

• military personnel in the performance of their military duties;
• persons working on the basis of civil contracts;
• other persons established by the Federal Law ( Art. 11 of the Labor Code of the Russian Federation).

By type of employer:

• agreements concluded with organizations - legal entities and individual entrepreneurs;
• contract with an individual. In this case, the employer is an individual without registration of an individual entrepreneur. Most often, these employers enter into a contract with service personnel.

Sample employment contract (2020)

Depending on the legal status of the employee:

• signed with minor citizens;
• prisoners with persons who carry out family responsibilities;
• issued with foreigners;
• signed with stateless persons.

By the nature of working conditions, the division is as follows:

• in normal working conditions;
• taking into account employment at night;
• prisoners with citizens working in the regions of the Far North and in territories equated to them;
• in conditions of work in hazardous production.

Types of employment contracts depending on the amount of work performed:

• about the main job;
• about part-time work.

In the first case, the employee works for the employer full-time throughout the working day. Here he also has a work book.

In the second, a person works in his free time from the main work. Such labor cannot last more than four hours a day. The document signed with the employee indicates that the work performed is precisely part-time. Such a document can be concluded both at the main place of employment and with another employer. In this case, it is possible to conclude contracts for part-time work with an unlimited number of employers, except for the exceptions established by the legislation of the Russian Federation.

It is not allowed to conclude contracts in combination with persons under 18 years of age, as well as with those whose main job is classified as heavy or performed in hazardous working conditions, if the combination of jobs implies the same characteristics.

Of particular note are the contracts concluded with senior executives. When compiling them, there are some features, in comparison with other categories of workers, which need to be paid special attention to.

Form of employment contract

Let's answer the question: in what form is the contract concluded? For this, it is used, approved by the Decree of the Government of the Russian Federation No. 858 of 08/27/2016.

The 2020 employment contract (a sample can be downloaded in our article) is drawn up in writing in two copies. Each copy is signed by the director and employee. One is transferred to the employee, the second is kept by the employer. As a sign of receipt of a copy, the employee must personally sign the document kept by the employer.

If the employee starts work with the knowledge of the employer, the contract is considered concluded, even if it was not drawn up in writing. Despite this, the document must be drawn up and signed within three days. The form of an employment contract with an employee (2020) can be downloaded for free in our material.

Also, for some professions, the employment contract form can be downloaded at the end of the article.

Parties to an employment contract

The parties are the employee and the employer.

An employee is a natural person who has reached the age of 16. The law does not prohibit the signing of a contract with 14-year-olds. But some conditions must be met:

• work should be easy;
• not to disrupt the educational process;
• the consent of the official representative, most often they are the parents of the teenager.

If a young child is needed, for example, for a role in a movie or theater, then in addition to the previous conditions, there must be the consent of the guardianship authorities. And also proof that the work will not cause physical or psychological and moral harm to the child.

The employer is a legal or natural person who is not prohibited from entering into employment contracts.

According to article 57 of the Labor Code of the Russian Federation, the document must contain the following information:

• FULL NAME. the employee and the name of the employing company;
• passport details of the employee (and employer, if he is an individual);
• TIN of the employer;
• date and place of signing the employment contract.

Mandatory for inclusion in the document are information concerning the professional activity of a person:

• place of work. This is usually the organization itself. If the organization has structural subdivisions, then the place of work is the subdivision indicated in the employment contract;
• position according to the staffing table;
• the date of commencement of work (if a fixed-term contract is concluded, the period of its validity is indicated);
• terms of remuneration (including the wage rate, additional payments, allowances and incentive payments);
• mode of work and rest. If they differ from the general rules established in the organization, then they should be discussed with the applicant for the job;
• guarantees provided by an employment contract;
• the nature of the work;
• working conditions at the workplace.

It may also include the rights and obligations of the employee and the employer, established by the Labor Code and internal regulations of the organization.

In addition, additional conditions may be included in the employment contract:

• about the probationary period;
• on non-disclosure of commercial secrets;
• on non-disclosure of secrets protected by law;
• on the types and conditions of additional insurance for the employee;
• on the employee's obligation to work for a certain period after training, which was carried out at the expense of the employer;
• about liability and others.

This data must contain an employment contract (sample of 2020, you can download the form in our material). The completed document is signed by the parties. An administrative fine may be imposed for non-compliance with the rules for drawing up a contract by a labor inspector in case of checking personnel documentation.

If it is necessary to make changes to it, the new information can be formalized in the form of an additional agreement.

The structure of the employment contract

As a rule, the document consists of several sections, each of which spells out the rights and obligations of the employer and the employee. Typically, a contract contains the following sections:

1. Data of the parties: name of the organization, address, full name. head, full name applicant for the position, his contact details.
2. Further, it usually contains an indication of the position and division of the enterprise where the applicant will work.
3. The next paragraph of the employment contract is a description of the rights and obligations of the parties. The duties of the employee, which he must perform in accordance with the job description developed at the enterprise, are stipulated here. As well as the responsibilities of the employer. These include paying salaries on time, providing a subordinate with a safe workplace, inventory, and so on.
4. The next section regulates the modes of work and rest. The rate of remuneration and internal regulations are specified.
5. There may be a section with additional terms that do not fall into the main parts of the agreement.
6. At the end, the signatures of the parties and the date are put.

If at the conclusion of the contract some information or conditions from those listed by us were not included, this is not a basis for declaring it invalid or a reason for termination. The document must be supplemented with missing information. They can be entered either in the text itself, or indicated in a separate agreement of the parties. The supplementary agreement must also be drawn up in duplicate and signed by each of the parties.

Termination of an employment contract

An employment contract can be terminated at the initiative of the employee, that is, at his own request, and at the initiative of the employer.

Termination at the initiative of the employee occurs when writing a letter of resignation. Usually, in this case, no difficulties arise, in contrast to the termination of the working relationship at the initiative of the employer.

Termination of the employment contract by the employer is permitted before the end of the probationary period with a three-day written notice. If the probationary period was passed successfully, then the termination of the employment contract can only be in the following cases:

• liquidation of an enterprise;
• staff reduction;
• repeated failure of the employee to fulfill his duties, as well as repeated appearance at the workplace in a state of alcoholic, drug and other intoxication;
• theft, embezzlement, deliberate damage to property;
• other cases identified Art. 81 of the Labor Code of the Russian Federation.

Keeping an employment contract

After filling out the form of the employment contract, it remains only to sign it, expressing agreement with all the conditions specified in the document. As we already wrote, it is compiled in two copies, one of which is given to the hands of a newly minted employee, and the second remains in the organization. The signed document is kept in the personnel department.

The contract must be kept in the organization for 75 years, in accordance with clauses 656, 657 of the List of standard documents approved by the Order of the Ministry of Culture of the Russian Federation No. 558 of 08.25.2010, or until the moment of liquidation of the enterprise.

Employment agreement (form and sample)

Finally, all the interviews and tests are behind, and you are hired for the coveted job. The final completion of hiring is the conclusion of an employment agreement with the employer. The form of an employment agreement does not have an officially approved form, therefore, as a rule, each employer uses its own form. However, the preparation of such an agreement presupposes the obligatory consideration of the provisions of the Labor Code of the Russian Federation. The above sample will help the employee to take into account possible nuances when signing it.

Employment agreement form

The conclusion of an employment agreement between an employee and an employer is primarily aimed at streamlining the relationship between the parties, as well as at fixing the most important points characterizing the work activity of a particular employer. For this, a written document is drawn up.

The legislator, highlighting important points, enhances their significance and calls them essential (or mandatory) terms of the employment agreement. We will reveal them below.

And at this stage, the first conclusion that the employee must remember is that an employment agreement is a written document that is considered concluded if there are significant conditions in it.

The employment contract offered to the employee for signing is filled in by the employer on the enterprise's letterhead according to the model he had previously developed.

At the same time, when filling out an employment agreement form, you must always remember the mandatory conditions and, if necessary, supplement it or, conversely, exclude unnecessary ones.

Essential terms of the employment agreement

The employment agreement is concluded in a simple written form in duplicate. One of the copies remains in the hands of the employee, the second copy is kept in the HR department of the employer. The agreement must be signed no later than three days from the date of starting work in the company. Indeed, in the event of any dispute, conflict with the employer, this document is intended to help settle and exhaust mutual claims.

Before an employee signs an employment agreement, it should be carefully read to ensure that the form contains all essential conditions and their compliance with the agreements previously reached during the interview.

The main essential or, as they are also called, mandatory terms of any labor agreement are:

• place of work. Here the place of work in the parent company is indicated, or in the case of hiring a branch of the company or its representative office, you must indicate information about this, including the address of the location;
• position (profession, specialty) for which the employee is hired, in accordance with the staffing table of the company. This section of the agreement is sometimes referred to as the “job function”. The work performed must correspond to the position for which the employee is hired;
• the date of commencement of work, that is, the day from which the employee directly begins to perform his job duties. Here it is important to distinguish this date from the date of the conclusion of the employment agreement, which may not coincide with the date of commencement of work. If the contract is urgent, that is, it is concluded for a certain period, then its validity period is necessarily fixed;
• the size of the official salary, other terms of remuneration;
• work schedule, including working hours and rest hours;
• description of the nature of the work (in the office, traveling, etc.);
• a condition on a probationary period (which, as a general rule, cannot exceed three months);
• other conditions depending on working conditions.

If, upon signing the proposed form of the employment agreement, the employee discovers conditions that do not correspond to the agreements or do not reflect the mandatory working conditions, then before signing the agreement, the employer must be asked to make the necessary changes.

EXAMPLE FORM of a contract with the head of the enterprise The owner represented by __________________________________________________ and the representative of the labor collective comrade .________________________________ ____________________________ have entered into this contract as follows. 1. Comrade ._______________________________________ is appointed to the position of the head of _______________________________________________________ (name of the enterprise) __________________________________ for a period from ______________________________ to ___________________________ with the transfer of powers in property management within (stipulate limitation of rights) and delegation of the rights to collective bargaining and concluding a collective agreement. 2. Comrade .__________________________________ manages the enterprise _____________________________________________________________ in accordance with the current legislation, as the head of the enterprise for the period of this contract is obliged to provide: 2.1. Highly efficient and sustainable work __________________________ _________________________________________________________________________ (name of the enterprise) and its socio-economic development. 2.2. Fulfillment of the state order for the production of products. 2.3. Fulfillment of contractual obligations for deliveries. 2.4. Compliance with the terms of the collective agreement. 2.5. Increase in production of consumer goods (determined by the parties specifically). 2.6. Expansion and renewal of the range and increase in production volumes. 2.7. Increase in labor productivity, decrease in production costs and labor intensity of manufactured products. 2.8. Receiving and increasing profits. 2.9. Technical re-equipment, reconstruction of the enterprise and commissioning of capacities (to be determined by the parties). 2.10. Protection of information constituting state, official and commercial secrets. 2.11. Compliance with current legislation, active use of legal means to improve management, strengthening contractual discipline, financial position of the enterprise. 2.12. Implementation of the program for the social development of the team. 2.13. Implementation of the environmental program. 2.14. ______________________________________________________________ 3. Comrade. ____________________________________________ the (full name) official salary is set in the amount of _______________________ rubles per month. 4. Subject to the fulfillment of the obligations set forth in clause 2 of this contract, comrade. ___________________________ is additionally established by (full name): 4.1. A surcharge in the amount of _______________________ rubles per month. 4.2. Bonus for 100% fulfillment of contractual obligations with customers in the amount of ______________ rubles monthly (percent of the official salary). 4.3. Remuneration based on the results of work for the year in the amount of __________ 4.4. _______________________________________________________________ 5. Comrade .______________________ set an annual leave of _______ (full name) __________ and additional paid leave of ___________________________ (subject to its provision) calendar days. For annual leave, material assistance is paid in the amount of ____ ___________ rubles. 6. Subject to the termination of the contract (for valid reasons), along with the payments provided for by the current legislation, the employee is paid a lump sum in the amount of _____________ rubles. 7. The owner (authorized body), founder, provided that the contribution of the state or local Council is more than 50%, along with the payments listed, is also obliged to: 7.1. Provide the enterprise with material and technical resources to fulfill the state order. 7.2. _______________________________________________________________ 7.3. _______________________________________________________________ 8. The contract may be terminated or terminated on the grounds provided for by the current legislation. Grounds for early termination of the contract by the parties, not provided for by the current legislation: 1) failure by the parties to fulfill the obligations provided for in clauses 2.2, 2.8 and 7.1 of this contract; 2) _________________________________________________________________ When the contract is terminated on grounds not provided for by the current legislation, an entry is made in the employee's work book about the dismissal according to clause 1 of article 29 of the Labor Code of the RSFSR (agreement of the parties). 9. Responsibility of the parties: _________________________________________________________________________ _________________________________________________________________________ 14. The terms of this contract can be changed only by agreement of the parties in writing. 15. The contract comes into force from the moment of its signing, unless otherwise provided in the contract. 16. The contract has been drawn up in duplicate. 17. Addresses of the parties. Comrade _________________________ Owner ________________________ (full name) _____________________________ __________________________________ Note. A representative of the labor collective participates under the condition that the contribution of the state or local council to the property is more than 50 percent, as well as at a state and municipal enterprise.