Instructions
The Labor Code of the Russian Federation began to use the chapter “Protection of the personal rights of an employee,” which describes the receipt, storage, combination, transfer and other use of information about.
In this case, the employer must comply with certain rules:
In accordance with the norms of current legislation, the employer must process the employee’s personal data.
The employer can process information only for the purpose of complying with laws and the employee’s employment, monitoring the quality and quantity of work performed, ensuring the personal safety of the employee and ensuring the safety of property.
The employer must obtain all information about the employee from the employee himself. If you can use the services of third parties to collect the necessary data, the employee must express his/her own opinion in writing.
The employer has no right to information about the personal life of the employee. In cases that are directly related to issues of labor relations, he can operate on the private life of the employee, but only with his written consent.
You need to know that the employer does not have the right to refuse to hire due to circumstances that are discriminatory. The Labor Code of the Russian Federation provides guarantees for the labor rights and freedom of citizens, protects the rights and interests of workers and employers, and also creates favorable working conditions.
There are some components to the personal (private) rights of an employee, which, in turn, require regulatory support:
Neither the employer nor any other person has the right to get acquainted with personal letters, telephone conversations, including visual reproduction means that belong to the employee (for example, messages of various types, recordings made by the employee on a voice recorder, etc.).
An employee has the right to inviolability of appearance. An employer violates his rights in the event of psychological pressure on an employee for the purpose of dismissal or reduction of wages. The employee's appearance must be neat and appropriate for a particular field of activity. There are a number of professions that require a special uniform (for example, sellers, prosecutors, judges, etc.).
An employer does not have the right to use audiovisual monitoring of an employee’s behavior. Also, this right is not allowed taking into account the safety and security of production property.
The employee has the right to physical integrity. In this case, we are talking about unreasonable searches on the territory of the enterprise where he works, about unwanted physical attentions of a sexual nature from other employees.
Employers are well aware that the Labor Code protects, first of all, the interests of the employee. This is correct - after all, the employee is the “weak side” in these legal relations. However, sometimes this party begins to use its rights to the detriment of the employer. What mechanisms do employees use to abuse their rights and how can they properly counter their actions?
In practice, almost every personnel officer or accountant performing his duties has to deal with so-called personnel blackmail. As a rule, with the help of blackmail, an employee tries to “extort” some concessions for himself. And in such cases, the employer always has options: agree or argue. The decision is usually made taking into account possible labor and time costs.
But there are also situations when an employee “fights,” as they say, out of principle. And in such a situation he has to resist. The main principle of such a confrontation is the correct execution of all documents.
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The employee refuses to sign the act or document
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The employee does not show up for work
A variation of the situation with a work record book: the employee has stopped going to work, but does not submit a letter of resignation and does not make direct contact with the employer. The hope here is that he will be fired, and then he will prove it and receive compensation.
Accordingly, the employer can simply resist this: it is enough not to fire such an employee. But, it is clear that the absent employee should not be paid wages. Therefore, it is important to record the very fact of absence. This is done as follows: the immediate supervisor of the absent employee draws up a report or memo addressed to the head of the organization. It sets out the facts: the employee did not show up at his workplace, indicates the time when he was supposed to come to work and the time the note was written. It also includes information about whether attempts were made to contact the employee and the results of those attempts.
The head of the organization, having received such a memorandum, initiates the further registration procedure. In particular, he instructs the personnel and (or) legal service to prepare. For this document, the State Statistics Committee of Russia has not established a unified form, so it is compiled in free form. It indicates the name and position of the employee who is absent from the workplace, the date of absence, how many working hours the employee was absent (therefore, it is better to draw up a report at the end of the working day). Next, the date and time of drawing up the act itself must be recorded, and it is indicated who drew it up and on what basis. In addition, the act records who was present when drawing up this document. After this, all persons present sign the act. We recommend inviting the absent employee’s immediate supervisor, as well as two or three employees from other divisions of the organization to draw up the report (to ensure relative independence and impartiality when drawing up the document).
This act is attached to the report or memo that served as the basis for its preparation, and is transferred to the person who is responsible for recording working hours in the organization. Based on these documents, the employer has the right to put a note in the Time Sheet about the employee’s absence for an unknown reason (“NN”, or 30; see Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1). Subsequently, the act and memorandum are filed in the employee’s personal file. In the event of a long-term absence of an employee from the workplace, such acts must be drawn up for each day of absence and filed in his personal file.
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Pregnant workers
Separately, it is worth mentioning the various methods of blackmail associated with. Here situations usually develop according to two scenarios.
The first is provoking termination of the employment contract at the initiative of the employer, dismissal and subsequent filing of claims that at the time of dismissal the employee was pregnant and, accordingly, the dismissal is illegal.
The second is the actual refusal of work by a pregnant employee with the expectation that it is not possible to fire her for absenteeism and other violations of the Labor Code of the Russian Federation.
Unfortunately, in the first of the situations described, it is almost impossible for the employer to protect himself from blackmail. The only thing that can be done in such a situation is to check the reality of the issued certificate and, if it turns out that it is fake, initiate criminal prosecution of the employee. The employer can organize such a check independently by sending a request to the organization that issued the certificate, or petition the court if the matter comes to trial. Remember that the key point in such disputes is the date of pregnancy, which in the initial stages is established from the woman’s words and is subsequently clarified based on the results of medical examinations. This clarification can also be used to defend the legality of the dismissal.
You can also try to justify the legality of dismissal by reference to abuse of right (Resolution of the Constitutional Court of the Russian Federation dated December 6, 2012 No. 31-P, Appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated September 26, 2012 in case No. 33-3295/2012). But here you will need evidence of the employee’s dishonest actions. For example, a significant and unexplained time gap between dismissal and going to court, testimony of witnesses about facts of blackmail, etc.
If the certificate and dates of pregnancy do not raise doubts, then the employee will have to be reinstated at work with payment of all amounts due (clause 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1).
With the second situation, everything is a little simpler. Yes, the employer has no right to fire such a truant worker, but he is also not obliged to pay her wages. This means that in this case it is necessary to act in the same way as in the situation with a missing employee described above. That is, record the facts of absenteeism in personnel documentation.
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If an employee writes a complaint to the labor inspectorate: what awaits the employer?
If a citizen writes about a violation of his rights to the labor inspectorate, then an unscheduled on-site inspection may be scheduled against the employer. What exactly will inspectors check during such an inspection?
If received, the subject of an unscheduled inspection will be the facts of non-compliance by the employer with the requirements of labor legislation in relation to this employee. In this case, documents related to this particular employee will be checked. Since state labor inspectors do not have the right to demand the submission of documents and information if they are not the objects of inspection or do not relate to the subject of inspection. If during the inspection the inspector reveals violations that are not related to the subject of the inspection, this may become a reason to initiate another unscheduled inspection. After all, the basis for its implementation may be information (including information received from officials of the federal labor inspectorate) about facts of violations by employers of the requirements of labor legislation, including labor protection requirements, which resulted in a threat of harm to the life and health of workers.
It turns out that, having come with an unscheduled inspection initiated in connection with an employee’s complaint, inspectors will only check the facts stated in this complaint.
As a general rule, the labor inspectorate notifies the organization of an unscheduled on-site inspection at least 24 hours before its start by any available means. However, if an employee has received a complaint about a violation of his labor rights or about facts of violation by the employer of the requirements of labor legislation, which resulted in a threat of harm to the life and health of employees, notification of the employer about the inspection is not allowed. For example, within the time limits established by law refers to violations that constitute threat to citizens' health. Consequently, such an unscheduled inspection can be carried out immediately, without the consent of the prosecutor’s office
As a general rule, if an employee wants to resign of his own free will, he must notify the employer in writing no later than two weeks in advance.
How to fill out, record and store work books. Fire recovery. Send the work parcel. Individual entrepreneur and work book. Change of company name. We found an old work book.
Unfortunately, not every employer can boast of exact and unquestioning compliance with the norms of the Labor Code of the Russian Federation. It is not uncommon for violations to occur in the area of labor relations, as a result of which workers are forced to seek help. allows this to be done in all ways not prohibited by law.
What should an employee do if his rights are violated?
When the legitimate interests of a worker are violated, action must be taken. Current legislation provides the employee with freedom to choose the means and methods to receive assistance. You can resolve the dispute yourself, alone, or you can turn to various authorities and authorities for help to resolve your issue. To restore justice, all options are good.
The main thing is not to be inactive, since inaction gives rise to impunity for the employer’s illegal actions and provides him with further opportunities to commit violations.
What is the name of the service for the protection of labor rights?
The main protection body is the State Labor Inspectorate. The inspectorate resolves disputes that arise between an employee and an employer. In order to contact the service for protecting the labor interests of employees, it is necessary to submit a complaint in writing, outlining the detailed essence of the issue.
The State Labor Inspectorate reviews absolutely all applications without fail, provides answers, and if a violation is detected, appropriate measures are taken against the employer in the form of sanctions.
Main ways to protect the rights of workers
The forms of protecting the labor interests of workers are varied.
There are several main ways:
- Self-defense when an employee acts alone;
- Contacting a trade union;
- Appeal to a higher authority;
- Contacting the State Labor Inspectorate;
- Appeal to the labor dispute commission;
- Contacting the prosecutor's office;
- Appeal to judicial authorities.
State control implies the implementation of systematic inspections of the personnel activities of organizations by the inspectorate to identify violations.
As for the form of presentation of the complaint, it is mainly written. In self-defense, it is possible to make an oral statement or put forward demands by the employee to the employer. When sending documents to various authorities, the complaint must be made in writing.
The procedure for protecting the rights of workers under the Labor Code of the Russian Federation
The Labor Code of the Russian Federation determines the procedure for protection. First of all, the deadlines for submitting applications must be met. They are regulated by Article 392 of the Law. The general period is 3 months from the date of commission of illegal actions.
If the issue is related to dismissal, then the application must be written within a month from the moment you receive the work book. If damage is caused to an employee by the employer, the filing period is one year. It should be noted that if the employee did not have time to defend his rights within the specified time frame due to valid reasons, illness, forced change of residence, business trip, etc., then he can apply later than the established time.
As a rule, rights are first defended at the local level - the worker makes verbal demands to his manager. He may also submit a written application, which must be considered within thirty days.
If all the measures taken at the local level did not bring the desired result, and violations against you could not be avoided, it is advisable to contact government authorities for help.
Protecting the rights of workers - self-defense
The most peaceful way to avoid violation of an employee’s rights is through self-defense. To know your labor rights, you need to be familiar with the articles of the Labor Code of the Russian Federation. It is a visual aid on how to do it and what not to do.
As soon as the employee becomes aware of the fact of a violation, it is necessary to take action. First, you need to try to verbally discuss the problem that has arisen with your manager and find a compromise. If it was not possible to agree verbally, then you should send a written request to the organization, which sets out in detail the essence of the issue. It is better to send the appeal by registered mail with a notification attached to be sure that it is delivered to the recipient.
According to the law, a response must be made within a month. If the problem is not resolved, the next step is to contact the organization’s trade union body, and then to state authorities for the protection of labor rights.
Judicial protection of the rights of workers - law
The Labor Code of the Russian Federation provides for judicial protection as a way to protect the labor rights of workers.
Typically, an employee goes to court when all other methods fail. In order to restore justice, a citizen brings a claim to court. It is very important to comply with the application deadline provided for by the Labor Code of the Russian Federation.
The subjects of the employee's claim, according to judicial practice, are:
- Causing harm to a worker;
- Unlawful dismissal;
- Non-payment of wages;
- Violation of the procedure for granting leave;
- Industrial injuries;
- Failure to pay proper benefits and compensation upon dismissal;
- Other questions.
Most often, if a violation occurs, the employee restores his legitimate interests and also receives compensation from the organization for the harm and losses caused.
What is the protection of workers' labor rights? Why is it needed, what functions does it perform, and in what cases are employees entitled to various compensations, and employers are entitled to restrictions and fines?
Facts show that such side of labor relations as the employee is the least protected. Leaders are different. It is difficult to call the management of some of them anything other than arbitrariness. Therefore, it is very important that the state protects workers from exceeding the authority of the manager. Different states have different levels of such protection. But we’ll tell you more about Russia.
Residents of Russia have long been accustomed to higher authorities protecting their rights. Since the days of the dominance of the Soviet political system. And this protection begins with the use of documents such as the Labor Code (LC). First of all, it is the Code that guarantees such protection.
The Labor Code was created according to the traditions of the Labor Code. Section No. 13 was created specifically for this purpose. It regulates the concept and forms of protection of workers' labor rights, and other important issues. For example (not all issues are mentioned below), how labor disputes are resolved, what responsibility the management will bear if the employee’s labor rights are infringed. That is, the legislation is interested in ensuring that all measures to protect the labor rights and freedoms of workers are implemented.
Speaking about this concept itself, it is necessary to first decide in what aspect it interests. It can be considered in narrow and broad aspects.
The protective function of labor law represents the broad meaning of this concept. It, in turn, reflects the same function of the entire state. Labor rights protection of workers consists of several components through which it protects the rights of workers. But they will be discussed in more detail below.
For now, it must be said that protecting the rights of company employees in a broad sense includes this concept in a narrow sense. In a narrow sense, protection of rights means a guarantee that all workers’ rights will be respected. They will be protected from violations, and the organization’s employees will be protected from them. If there has been an illegal violation of rights, protection means their actual restoration. And also a guarantee that, in accordance with the Labor Code and the instructions of the relevant authorities, employers will bear the responsibility provided for their violations. This responsibility should not be nominal, but more than real and effective.
Methods of protection that are used to protect the rights of employees
All these methods are listed below:
- Promoting the implementation of Labor Code in all possible ways. First of all, through the most frequently used media.
- Establishment at the state level (with the help of other labor legislation documents) of the most decent working conditions at the enterprise. This also includes a guarantee of labor rights, which are increased and supplemented as necessary. They are developed by regional labor laws.
- Constantly increasing the democracy of production. It can be carried out either with the help of representatives or directly. Democracy through representatives means “through other employees or trade union organizations.” It is important that employees themselves help formulate internal rules and decide whether it is necessary to conclude collective agreements. It is very important that it is not only the employer who makes such decisions. In this way, a kind of equality is achieved between the employer and the people working for him.
Among other things, the methods also involve the implementation of such an important point as the social protection of personnel.
In addition, the rights of employees are required to be protected by organizations that resolve labor disputes. It is equally important that their social security is ensured. If necessary, personnel should have the opportunity to appeal to the courts.
Different types of control over employee rights and who carries them out
The most important and having the opportunity to make the most important decisions is state control. The organizations that are responsible for it also include companies involved in labor protection.
Supervision and control over compliance with personnel rights is divided into several types:
- preliminary;
- current;
- subsequent.
The last of these types of control is carried out by organizations such as the prosecutor's office and the court. They begin their work if it has been revealed that the labor rights of workers and labor protection rules have been violated. By the way, it is labor safety rules that regulate such an important thing as social protection of workers.
In other cases, a large number of other organizations deal with issues of supervision and control in the labor sphere. To ensure that all labor laws are implemented as accurately as possible, the General Prosecutor's Office of the Russian Federation and lower similar bodies are constantly working.
Which organization is responsible for state control over compliance with workers' rights and all labor protection laws? First of all, it is carried out with the help of the Federal Labor Safety Inspectorate and other institutions that are subordinate to it. It is the Federal Inspectorate that is the main body that regulates the protection of workers' rights.
Other important points about these organizations
Together with the inspection, organizations specially designed for this monitor the safety of work in certain industries.
The activities of each of these bodies are regulated by special provisions relating to each of them.
What rights does each of the organizations mentioned have? In particular, they can visit any organizations or production facilities under their jurisdiction at any time without any obstacles. Of course, only if they need to do this for inspection or accident investigation. In addition, they have the right to issue instructions to the administrations of these productions, which they must comply with. If the equipment they are using is found to be faulty, they have the right to stop using it for a time. If officials of production organizations have committed labor violations, then these bodies have the right to impose fines on them.
In addition to the organizations mentioned above, trade union organizations play a large role in monitoring the protection of workers' rights.
This is one of the forms of union of workers. The rights of trade unions are regulated by the Labor Code of the Russian Federation. This organization has considerable power. In particular, management cannot accept a single document that says anything about the rights and obligations of employees without taking into account the opinion of trade unions. Every employee has the right to join a trade union. The Constitution of the Russian Federation gives him this right. How are the activities of trade union organizations regulated?
First of all, by themselves and various regulations. But, as already mentioned, they have many rights, thanks to which all measures of social protection for personnel are ensured in practice. Therefore this service is very important.
A few words of output
In accordance with the law, the protection of the labor rights of workers by trade unions and other organizations should help make their work safe, in compliance with all measures to protect workers (including the protection of their rights), their social security.