When introducing a new position in staffing appropriate adjustments are made. Most often this is due to production needs (reorganization, expansion of the scope of activities).
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New positions are also introduced to relieve employees: one employee often performs several functions that are the responsibility of various specialists. For example, an accountant additionally performs the work of a personnel inspector or secretary.
Normative base
The staffing table is normative document organization, describing the structure, staff and number of employees, indicating the amount of salary for each position (Rostrud letter dated March 22, 2012 No. 428-6-1).
The Labor Code does not have an exact definition of the document; moreover, it does not require its maintenance at all.
The main regulatory legal act that you need to focus on when filling out the staffing table is the Decree of the State Statistics Committee of January 5, 2004 No. 1 on the approval of forms primary documents in personnel management.
Foundations
Adjustments to the staffing table are made on the basis of the order of the head. HR specialists also take part in the preparation of the project.
The director gives an oral order to individual employees, in accordance with which an order is drawn up on the introduction of positions, after which the document is confirmed by his personal signature.
The need to change the official composition may be caused by an increase in the volume of work at the enterprise, the introduction of a new direction of activity, measures to improve the efficiency of a structural unit or the entire organization, etc.
How to introduce a new position in the staffing table in 2019?
The procedure for introducing a new position consists of several stages, combining organizational arrangements and documentation.
Procedure, steps and rules
Determining whether to add a staff unit
This is the most crucial and difficult moment in the whole procedure.
There must be strong arguments to increase the staff, so you need to analyze the standard for performing individual duties with the amount of work of the future position.
First you need to collect statistical information regarding the position being entered (types of work, employee functions, time costs, etc.). The calculation is carried out on the basis of the production standards provided for a particular job.
If the organization does not have its own labor rationing system, you can use the standards of the Ministry of Labor.
Example:
In view of the expansion production activities The company needed a secretary-clerk. There is no such vacancy in the state, and the functions of the secretary are performed by several employees.
According to estimates, in a month the organization processes approximately:
- 150 units of incoming documents;
- 160 units of official correspondence;
- 50 executive orders;
- 60 requests from counterparties;
- extra: 100 phone calls.
To determine the labor costs for maintaining documents and processing calls, you can refer to the Decree of the Ministry of Labor No. 23.
In accordance with this document, the norms of time for working with documents are:
| Executable function | Number of units processed per month | Hours norms | Total spent |
| Incoming Documents | 150 | 0,065 | 9,8 |
| Service documents | 160 | 0,065 | 10,4 |
| Leadership Orders | 50 | 0,08 | 4 |
| Addresses of counterparties | 60 | 0,083 | 5 |
| Calls | 100 | 0,2 | 20 |
| Total | 520 | 49,2 |
Thus, when performing only the functions listed above, the employee will spend about 50 hours per month.
Personnel officers are interested in whether it is possible to introduce 0.25 rates for such employees?
This is not prohibited by law: depending on the scope of the proposed scope of work, you can set 0.5 rates, 0.75 or 0.25. Similarly, you need to calculate the labor costs by category of work for the entered vacancy.
If the current workload of an employee exceeds the number of working hours per month, the introduction of a position is fully justified.
Drafting a new job description
Based on the calculation of labor costs, the standards of the functions that the new employee will perform are determined and adjusted.
After that, a draft job description is prepared.
Drafting a memorandum addressed to the head
A new position is introduced in a specific structural subdivision therefore, a note addressed to the director is written by the head of this department.
The document must describe in detail the justification for the introduction of a new vacancy. The appendix to the note is a draft job description.
Issuing an order
The document indicates the department for which the position is entered, as well as information on the amount of salary.
The date of introduction of the vacancy may not coincide with the date of the order, so changes may be introduced later.
Staffing adjustments
Familiarization of employees against signature with innovations is not required.
For one position
The procedure for adjusting the staffing table is not regulated by the Labor Code. If only one vacancy is entered, you can use the instructions presented above.
Thus, the actions of the employer are reduced to issuing an order, drawing up a new job description, changing the staffing table and hiring an employee.
For department
If the changes are massive, it is easier to draw up a new staffing table. The document is developed by the personnel department and approved by the management.
How to choose names?
In accordance with the Labor Code, the title of a new vacancy must correspond to the current qualification handbook, approved in the manner prescribed by law (Decree of the Government of the Russian Federation No. 787).
If the position being introduced is not associated with special restrictions and guarantees, the manager can independently determine the name of the specialty, regardless of whether there is such a name in the directory or not.
The obligatory exact correspondence of the job title to the directory and professional standards is stated in two articles of the Labor Code of the Russian Federation:
- Art. 57 (providing subsidies and benefits to specific positions, the presence of restrictions);
- Art. 195.3 (application of professional standards).
Documenting
The procedure for introducing a position must be formalized in the manner prescribed by law.
To do this, an order is issued to change the staffing table, a job description is developed, then the additions themselves are made.
The staffing table is compiled according to the T-3 form (approved by the Decree of the State Statistics Committee No. 1). If necessary, the employer can develop his own form (Letter of Rostrud No. 1487-6-1-PG of February 14, 2013).
Orders
The order on the introduction of a position does not have a regulated form, however, when drawing up it, one must be guided by the requirements of Gosstandart R 6.30-2003.
- the title of the document must indicate that adjustments to the schedule are made due to the introduction of a new position;
- the full name of the organization, the number and date of the order are written on top;
- the last paragraph of the main text must contain the full name of the person controlling the execution of the order;
- the director or an authorized official signs at the bottom, the chief accountant or the head of the personnel service can put the coordinating signature.
All orders related to the staffing table are common throughout the company.
A document can be given a special index (for example, "SHR") to restrict access to employees' personal information and stored in a separate folder.
- Sales Director (salary - 100,000 rubles) - 1 staff unit;
- Sales coach (salary - 50,000 rubles) - 1 staff unit.
Document example:
Change in staffing
The staffing table is a document consisting of ten columns and is an annex to the order on the basis of which it is approved. If the changes are minor (for example, the introduction of one or two positions), it is not necessary to redo the entire order.
With significant adjustments (opening a new department or division), it is better to rework the entire form at once, that is, draw up a new schedule. This document comes into force from a specific date, on the basis of an order to approve the schedule.
According to the form regulated by the State Statistics Committee, the document must indicate:
- department names;
- the names of all positions;
- staff size;
- size , allowances.
Job Descriptions
The job description is drawn up and approved for each position, i.e. for an indefinite circle of employees without indicating their full names.
The procedure for writing instructions is not established by regulatory legal acts, therefore, the management independently decides how to draw up and correct them.
The main task in compiling the document is to develop an instruction that fully covers the entire list of duties and powers of employees with the most clear and precise wording.
The development of the job description is carried out on the basis of:
- Labor Code of the Russian Federation;
- Classification directory of positions.
The document is issued on the general letterhead of the company.
The main details include:
- company name;
- Title of the document;
- date with number;
- the place where it was made;
- title;
- text content;
- signature of the head;
- stamp of approval.
Job description structure:
- general provisions;
- employee functions;
- official duties;
- employee rights;
- a responsibility;
- relationships within the company.
When a new position is introduced, a new job description for a specialist is also formed for it.
Employment contracts
Reduction or increase in salary, renaming of positions and other staffing adjustments lead to.
After issuing an order to change the staffing table, an employee is concluded.
When an employee is hired for a new position, an agreement is concluded with him according to general rules TK RF.
If there is a renaming of the position, the employer makes the appropriate entries in.
Current employees are notified of upcoming changes at least two months in advance.
Do I need to notify the job center?
After the introduction of a new position, two options are possible:
- finding and hiring a new employee for this position;
- transfer to it of an already employed employee under an additional agreement (in this case, the old vacancy is excluded).
If you strictly follow one of the indicated algorithms, you do not need to notify the employment service.
Timing
The decision to create a new structural unit or introduce positions is taken by the authorized body of the legal entity.
Labor legislation quite clearly regulates the procedure according to which the conclusion of an employment contract and the hiring of new employees should be carried out. These guarantees are aimed at protecting the rights of both the employee and the employer and cannot be changed by agreement of the parties. The only exceptions are federal laws, which, in accordance with the Labor Code of the Russian Federation, can determine legal status participants in these legal relations.
Preliminary actions taken by the employer
For the purpose of selection necessary personnel the employer carries out a number of activities aimed at finding and selecting the workers he needs. Such actions can be carried out by placing advertisements in the media. mass media, using the intermediary services of various recruitment companies or contacting public service employment.
The employer has the right to independently choose the employees he needs, depending on whether the latter has the necessary business qualities. At the same time, business qualities should be understood as professional experience, abilities, health status and the ability to perform certain work. The freedom to choose an employer is also confirmed by existing judicial practice.
From a legal point of view, any pressure on the employer during the decision to fill in the existing vacancies and conclusion labor agreement. Thus, the hiring of an employee is carried out to a greater extent in the interests of the employer.
Guarantees for applicants
In order to ensure the protection of the rights of hiring employees, the legislation provides for a number of obligations and restrictions for employers during the procedure for hiring new employees. For example, it is forbidden to unjustifiably refuse job seekers in employment, that is, a refusal without taking into account the candidate’s business qualities, which is contrary to the requirements of the current legislation, will be unlawful.
Any discrimination against candidates in the recruitment process will be illegal.
Since, at the request of the applicant, the employer is obliged to communicate the reason for the refusal in writing, any refusal, in the presence of any violations, can be appealed in court.
With regard to the obligations of the employer, it is possible to note individual cases in which hiring individual employees is mandatory. For example, in some cases, a quota is set for the admission of disabled people, i.e. the minimum number of jobs to be filled, an employment contract with disabled people must be concluded.
Preparatory stage of the recruitment procedure
Registration of employment
- Application for a job. According to established practice, before the conclusion of an employment agreement, future employee apply in writing to the employer with a statement of acceptance. However, the answer to the question of whether a job application is mandatory in the recruitment procedure is fairly clear. This rule in most cases is an echo of the Soviet past. To date, labor law does not contain such a duty for most employers. Mandatory submission of an application for employment is provided only when applying for a state and municipal service. However, such a document may be useful when hiring with a probationary period, since in the application the employee fixes his consent to such a condition of acceptance.
- Familiarization with collective agreement and local regulations of the employer. Article 68 of the Labor Code of the Russian Federation provides for the obligation of the employer to familiarize the employee with all the documents that regulate his activities against the signature of the employee. Such familiarization should be carried out before the employment under the contract is formalized and the employment agreement is signed. The list of documents should include: job description; internal rules work schedule; local regulations related to work duties; collective agreement.
- Conclusion of an employment contract. The legislator provided for the observance of the mandatory writing when concluding employment contracts (Article 67 of the Labor Code of the Russian Federation). Such a document is drawn up in two copies, one of which, after signing, is transferred to the employee, the other to the employer. It is recommended that the copy that remains with the employer be marked that the employee has received a second copy. Thus, the fulfillment of the conditions provided for in Art. 67 of the Labor Code of the Russian Federation. In fact, from the moment the employment agreement is concluded, legal relations arise between the employee and the employer. However, this rule may be changed if the employee was actually allowed to perform his duties. official duties with the consent of the employer, but their legal relationship was not formalized properly.
The content of the employment contract. This agreement must contain the mandatory information and conditions that are provided for in Parts 1 and 2 of Art. 57 of the Labor Code of the Russian Federation. If, for some reason, the requirements of this article were not met, this circumstance is not a basis for recognizing the contract as not concluded. The agreement must be supplemented with the relevant missing information and conditions. At the same time, it is important to remember that information is entered into the text of the contract, and the conditions are drawn up in the form separate document. Also, in accordance with Part 4 of Art. 57 of the Labor Code of the Russian Federation, additional conditions may be included in the employment contract. Here we can talk about clarifying the place of work, establishing a probationary period, etc.
- Registration. After the signing of agreements on full liability and labor, they must be properly registered in the control logs.
- The order of acceptance to work. After signing the employment contract by both parties, the employer issues an appropriate order. The order cannot differ from the conditions stipulated in the contract and must contain the basis for employment.
- Familiarization with the order. In accordance with the requirements of Article 68 of the Labor Code of the Russian Federation, the employee must be familiarized with the issued order within three days from the date of actual entry to work.
- Registration of a work book. After all the above steps have been taken, the personnel service can begin to draw up an employee's work book. In accordance with Art. 66 of the Labor Code of the Russian Federation, all proper employers are required to keep work books for each employee who has worked for them, as at the main workplace for more than five days. If the employee does not have a work book, the employer is obliged to issue it at his own expense. Data on all work books of persons working at the enterprise must be entered in the movement accounting book work books and inserts for them.
- Employee's personal card. The personnel service at the enterprise draws up personal cards for all employees, in which all information about the employee must be entered. also in this document the employee puts his signature that he is familiar with the entry made in the work book. Personal cards are subject to registration in the manner prescribed by the employer.
- Private bussiness. Labor Code Russian Federation does not provide for the obligation to maintain personal files for most employers. However, in some cases, statutory, registration and maintenance of personal files should still be carried out. This applies, for example, to registration of state and municipal employees, employees of the prosecutor's office, courts.
After completing the procedure for registering a new employee, you should pay attention to his previous place of work. Because if new employee previously was a state or municipal employee, article 64.1 of the Labor Code of the Russian Federation prescribes to inform the former employer about the fact of his employment within 10 days.
Justification for the need to hire new employees
At the end of 2010, the management of Avangard Electro LLC decided to introduce additional positions in the lighting equipment division. The motive for the decision was to draw up a functional matrix of the department (see Appendix 3) and identify the lack of efficiency of the department due to the overload of existing employees or the performance of unusual additional functions by them instead of the qualitative implementation of direct ones (Table 2).
Table 2. Analysis of functional personnel shortcomings of Avangard Electro LLC
negative factor
Result
Needed Change
Making mistakes by managers in exercising full control over purchase and sale transactions
Managers are exposed to a daily plan for making "cold" and "warm" contacts. If the plan is not fulfilled, then penalties are introduced.
Making mistakes related to the quantity of goods, delivery times, numerical errors in invoices due to
Introduction to the staff of a new employee (operator), who would provide the required number of "cold" contacts per day and only if there is a need for products
negative factor
Result
Needed Change
sanctions. There are days when a manager is overloaded with client requests and has no time to complete the contact plan, but he is forced to do it, while reducing the time for transactions
previously justified haste
potential client, with whom the contact was made - connection with the corresponding manager
The regional manager does not cope with his duties in full
This is facilitated by both the first reason and the fact that the regional manager serves 5 regions simultaneously: Krasnoyarsk (Krasnoyarsk Territory), Tomsk (Tomsk Region), Barnaul ( Altai region), Kemerovo and Novokuznetsk ( Kemerovo region), Irkutsk (Irkutsk region)
Making errors related to the quantity of goods, delivery times, numerical errors in invoices due to previously justified haste
Introduction to the staff of an additional unit for the position of a regional manager with the transfer of supervision of two regions to him: Irkutsk (Irkutsk region), Kemerovo and Novokuznetsk (Kemerovo region)
Thus, the company is faced with the task of selecting and hiring employees for the positions: call operator and regional manager.
Search, selection and hiring of Avangard Electro LLC employees
Search, selection and hiring of personnel in Avangard Electro LLC is carried out as follows:
when searching for candidates for a position, only external sources are mainly used. Over the three years of its existence, the promotion (that is, the use of an internal source of personnel) was carried out twice, but at the same time, the original functions of the employees were still preserved, which indicates not a replacement of the position, but an assignment to a person additional responsibilities associated with increased responsibility.
Personnel search by external sources produced in three ways:
2. Calls with a job offer for those already posted on the sites and the most suitable resumes.
recruitment has two stages. The first stage, in which a group limited to 3-5 persons is selected from the entire mass of applicants, is carried out by the direct head of the department in which the employee is required. The second stage, in which the final selection of the employee is made, is made by the director of the company. Both stages involve questionnaires and interviews.
recruitment of personnel is carried out through the conclusion of an employment contract, while providing for probation duration of 2 months, during which he will be trained and supervised by a certain employee of the company.
In connection with the identification of functional personnel shortcomings (see Table 2), the enterprise faces the need to hire two new personnel units: a call operator and a regional manager.
The management of the company has compiled a written list of duties (functions) for each of the positions.
The call operator must:
1. Make 100 calls to potential customers daily, of which 50 calls relate to the territory of Novosibirsk and the Novosibirsk region, and 50 calls relate to the territories of other regions with which the company cooperates.
2. Keep records for each potential client.
3. If a potential client has an application, switch him to the appropriate manager.
4. Provide managers with information on clients.
The regional manager must:
1. Establish good relationships with clients in the regions: Irkutsk (Irkutsk region), Kemerovo and Novokuznetsk (Kemerovo region).
2. Qualitatively carry out purchase and sale transactions.
3. Encourage customers to make further and larger purchases.
4. Submit monthly reports according to the established plan.
After defining job responsibilities, the professional and personal qualities that employees should have were identified (Table 3 and Table 4).
Table 3. Requirements for the qualities of a call agent
Table 4. Requirements for the qualities of a regional manager
Quality
Characteristic
Professional quality
well-organized, consistent
Computer skills
Knowledge of the office suite Microsoft Office, typing speed on the keyboard from 200 characters per minute in Cyrillic and Latin
Other qualities
Enthusiasm, the ability to accept right decisions, focus on results
Personal qualities
Education
From secondary special
Family status
Irrelevant
Other qualities
Responsibility, performance
The direct process of personnel selection was carried out in three stages.
The first stage was made by the director of the company. The method of primary selection - questionnaire was used. The head reviewed several resumes posted on the website www.e-worka.ru as a result, they identified preliminary candidates for the positions of call operator and area manager. From the entire list, 8 candidates for the position of operator and 10 candidates for the position of regional manager agreed to undergo an initial interview (which is the essence of the primary selection at Avangard Electro LLC). Each candidate was assigned a specific visiting time.
The second stage of selection was made by the head of the lighting equipment department. It consisted of a preliminary interview, in which applicants were told the essence of the job they were offered, and questions were asked for both positions:
a story about previous jobs;
justification for the decision to change the workplace;
what goals in life would a person like to achieve;
As a result of a casual conversation, the head of the lighting department intuitively determined the degree of presence or absence of a person's compliance with this position.
The ability to work at a computer, knowledge of the Microsoft Office package and typing speed were not tested, but were clarified orally. That is, there was no testing. The level of education, age, marital status were found out based on the method of questioning (summary).
As a result of the initial selection, the head of the lighting department selected 3 people for the position of a call operator, and 2 people for the position of a regional manager. These people were called for a second interview with the head of the company the next day. The rest were made calls with a message about the refusal of the position.
The third stage of selection was made by the director of the company. The interview was situational. That is, the director did not ask general issues candidates, but created work situations and invited applicants to name their own solution. As a result of applicants' reactions to practical tasks and the solutions they offered, the head of Avangard Electro LLC selected one candidate for each position. Each was placed on probation for 2 months.
As a rule, in such a scheme, pregnant employees are relatives, acquaintances and friends (for example, the wife of the founder). Since the amount of the allowance reimbursed from the FSS of Russia directly depends on the size of the salary, it is set at the highest level (see underlay). Thus, the organization manages to pay a pregnant employee high income, not subject to personal income tax and contributions.
Savings on taxes and contributions directly depends on the size of the salary
To calculate the maternity allowance, the following indicators are used: billing period, earnings for the billing period, average daily earnings and the maximum possible daily allowance. The last amount depends on the insurance experience of the woman. If at the beginning maternity leave the insurance period of the employee is six months or more, then the daily allowance is equal to 100 percent of the average daily earnings (Article 1 federal law dated 19.06.2000 No. 82-FZ and clause 20 of the Regulation, approved by the Decree of the Government of the Russian Federation of 15.06.07 No. 375). Thus, it turns out that the amount of the benefit is not limited, depends on the woman's income and can be a very large amount.
Obviously, the described scheme is most often an artificially created situation. In this regard, the effect of its application directly depends on a reliable logical and documentary justification. In particular, companies need to be prepared to answer questions such as:
- what made her hire an employee shortly before her maternity leave;
- why a pregnant employee has a higher salary compared to other similar employees;
- whether the qualifications of the woman correspond to the position held;
- for what reasons, after the employee left on maternity leave, no one was hired for her position.
If the inspectors from the FSS of Russia do not receive answers to such questions, then the paid allowance will not be accepted for offset. Then the company will have to accrue contributions on the amount of the payment (part 1 of article 7 of the Federal Law of July 24, 09 No. 212-FZ, clause 1 of article 20.1 of the Federal Law of July 24, 1998 No. 125-FZ). That is, she may face additional assessments of contributions to social insurance, contributions to pension and medical insurance (as part of a single or joint audit of the PFR), as well as personal income tax (if field check personal income tax).
Practice shows that employees of the FSS often suspect artificially inflating the amount of benefits. And often the courts agree with the controllers (for example, the decision of the Arbitration Court of the East Siberian District dated September 18, 2014 No. A19-16413 / 2013, as well as federal arbitration courts East-Siberian District No. А33-5426/2013 dated 13.12.13, West Siberian District No. А46-29711/2012 dated 12.08.13, District No. Ф03-3341/2013 dated 01.08.13, North Caucasus District No. А01-565/2012 dated 18.02.13 ). However, we can say with confidence that the outcome of the case in court depends on the arguments of the company. There are many court decisions in favor of policyholders, including the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of April 23, 2013 No. 16549/12 (see also the decisions of the federal arbitration courts of the Volga Region of August 27, 2013 No. A65-32607 / 2012, of the East Siberian Court of August 6, 2013 No. /2012, West-Siberian of 07.05.13 No. A27-11253/2012 (upheld by the definition of the Supreme Arbitration Court of the Russian Federation of 04.07.13 No. VAS-7923/13) districts).
In order not to compose on the go the validity of hiring a pregnant employee, it is advisable for the company to develop an internal position. In which you need to clearly justify the logic of your actions in a similar situation.
In what form is it compiled. As a separate domestic situation about the procedure for hiring pregnant employees. It is safer if the document is developed exactly personnel service organization and approved by the CEO. In addition, in the provision it is important to affix the signature of the chief accountant on familiarization with the document.
What must be in the document. First, the position must indicate that the company employs pregnant women and women with children on a general basis. The refusal to conclude an employment contract with such employees is a direct violation of Article 64 of the Labor Code of the Russian Federation. Analysis judicial practice shows that this is the most compelling argument in favor of the company in such disputes (decisions of the Federal Arbitration Courts of the Urals No. Ф09-4047/13 dated May 22, 2013, No. Ф09-5133/13 dated 11929/13), West Siberian District No. A27-20974/2012 dated August 30, 2013). In addition, the organization may add that unreasonable refusal of a pregnant woman to receive a pregnant woman is a criminal offense (Article 145 of the UKRF).
Secondly, it is advisable to indicate in the provision that the legislation does not make the payment of benefits for pregnancy and childbirth and the acceptance of the insured's expenses dependent on how long the woman worked before the occurrence of the insured event. Practice confirms that in the situation under consideration this is a very effective argument and the courts accept it (decisions of the federal arbitration courts of the Urals dated 11.07.13 No. F09-6714 / 13, Central of 01.24.12 No. A48-664 / 2011 (upheld by the decision of the Supreme Arbitration Court of the Russian Federation of 11.04.12 No. VAS-3548/12), North-Western District No. A56-56931/2010 dated May 16, 2011).
Thirdly, the document should emphasize that the qualifications of a pregnant employee must fully correspond to her position. For example, the Federal Arbitration Court of the North-Western District, in its ruling dated June 20, 2013 No. A66-9662 / 2012, drew attention to the fact that a pregnant employee has a higher professional education majoring in Mathematical Methods and Research of Operations in Economics with the qualification of an Economist-Mathematician. Such a qualification, according to the court, allows a woman to work first as a marketing manager, and then as a head of a company. In the same case, the court suggested another effective argument to the insurers. The essence of which is that the law does not oblige the insured to substantiate economic efficiency hiring a pregnant worker.
Fourthly, it is important to touch upon the issue of setting wages for pregnant workers in the document. And to emphasize that the salary is set in accordance with the staffing table approved by the company. Thus, the employer must understand that, in an effort to establish a woman more high salary, it is safer to introduce a new position for her in the staffing table. The need for a new vacancy is easier to explain (for example, a leading marketer was required to explore new markets) than to explain significant differences in the salaries of similar employees.
Here's an example of what not to do. One Volgograd company calculated benefits for a pregnant employee (deputy CEO) based on a salary of 30 thousand rubles for a three-hour working day. It turned out that the full rate for such a position is 80 thousand rubles, which is 1.6 times more than the salary of a manager and 11.9 times more than the salaries of an accountant and a manager. Of course, the court considered such a difference artificial. And he agreed with the inspectors that the company deliberately created a scheme for overestimating the amount of the allowance (Decree of the Federal Arbitration Court of the Volga District of August 30, 2011 No. A12-24193 / 2010, upheld by the decision of the Supreme Arbitration Court of the Russian Federation of December 22, 2011 No. VAC-16170 / 11).
It should be noted that in all similar disputes, companies could not defend themselves for only one reason - they did not prove the reality labor relations. That is, the presence of an employee at work and her actual performance job duties(for example, the decision of the Federal Arbitration Court of the North Caucasus District dated 08.04.11 No. A32-31681 / 2010 (upheld by the decision of the Supreme Arbitration Court of the Russian Federation of 10.27.11 No. VAS-13478 / 11)).
If the company confirms that the pregnant employee really performed her job duties, for which she received the appropriate salary, then the court will most likely consider the refusal of the FSS illegal. For example, in one of the cases, the fund refused to offset benefits for a pregnant employee who was hired as a lawyer in a store with a salary of 30,000 rubles. In the opinion of controllers, such a salary is artificially high, since the director's salary in the same store was 20 thousand rubles. However, in fact, he received 10 thousand rubles. However, the entrepreneur explained that although a certain citizen was listed as the director of the store, in fact he was not. The direct management was carried out by the entrepreneur himself. And the director received a salary according to the time worked (he did not go out every day). In addition, the entrepreneur explained that in addition to legal work, the pregnant employee was also entrusted with managing the store and resolving organizational issues. As a result, the Presidium of the Supreme Arbitration Court of the Russian Federation declared the Fund's refusal to offset benefits illegal (Decree No. 16549/12 dated April 23, 2013).
Thus, if a pregnant employee performs additional duties, it is safer to record this in additional agreement to the employment contract concluded with her. Plus, this will be an additional justification for an increase in salary (even if only for a temporary period).
Additional security measures. In addition to the rationale, it is important for the employer to have documents confirming the reality of the employment relationship. In particular, these can be employment orders, copies of work books, staffing, payrolls, timesheets, job descriptions etc.
Thus, in one of the cases, the company confirmed the fact that a pregnant employee had fulfilled her labor duties with primary accounting documents: an extract from the book of income and expenses, a copy of the invoice and copies of consignment notes (Resolution of the Federal Arbitration Court of the Urals District dated July 11, 2013 No. Ф09-6714 / 13 ).
In addition, in this scheme, one must not miss an important nuance - family ties. Often the courts consider it the basis for refusing to reimburse funds from the FSS. For example, this happened in the following situations, when a pregnant woman was:
- the daughter of the director of the company (Resolution of the Federal Arbitration Court of the West Siberian District dated August 12, 2013 No. A46-29711 / 2012);
- the entrepreneur's sister (decree of the Federal Arbitration Court of the West Siberian District dated April 1, 2013 No. A27-14796 / 2012);
- the wife of the director and sole founder of the company (Resolution of the Federal Arbitration Court of the East Siberian District dated August 30, 2012 No. A33-14985 / 2011).
However, practice shows that not all courts consider the presence of family ties to be an obstacle to refusing to set off benefits. In particular, in one of the cases, the arbitrators indicated that the basis for hiring an employee in the first place was the offer of the employment center, and not the presence of family relations with the entrepreneur (Resolution of the Federal Arbitration Court of the North-Western District dated September 23, 2013 No. A21-9542 / 2012 (upheld by the decision of the Supreme Arbitration Court of the Russian Federation dated 09.12.13 No. VAS-17019/13) The judges came to similar conclusions in many other decisions (for example, decisions of the federal arbitration courts of the East Siberian Court dated 08.23.12 No. A33-20033 / 2011, Uralsky dated 05. 04.12 No. Ф09-2332/12, Far East District No. Ф03-1893/2012 dated 19.06.12, Districts No. А82-14347/2010 dated 24.10.11, Volga-Vyatka District No. А45-21736/2010 dated 06.09.11).
In the course of conducting the activities of the organization and the entrepreneur, there comes a time when it is necessary to hire an employee from the LLC immediately, because. she has a director - nowhere without him, and the IP, as such a need arises. At this moment, a number of questions arise - what is needed, what documents, the procedure for admission, applications, labor, employment contracts And so on. We will reflect these points in this article and consider the option when you have a candidate and you need to document it.
In order to hire an employee, you need to request the following documents from him:
- Citizen's passport
- Employment book, if the employee has not worked anywhere before, a new one is started
- Snils - insurance certificate - green card
- TIN, if it was not there either - it is necessary that the employee receive it from the Federal Tax Service
- Document on education - it is needed rather at the request of the employer
- Military registration document, if a citizen is liable for military service
- AT certain cases medical certificate
The procedure for hiring, step by step instructions
Step 1. Special assessment of working conditions (earlier until 2014 - certification of workplaces)
If the organization has employees who perform some kind of work, even office work, it is necessary to carry out to identify harmful and dangerous factors in their work. Relatively, this is a fiction, but according to the law, this requirement is mandatory and applies to both organizations and entrepreneurs (according to Article 212 of the Labor Code of the Russian Federation and Part 1 of Article 8, Federal Law No. 426).
Yes, you can, of course, conduct an assessment even after you start working, but keep in mind that you can be held administratively liable, both as an individual entrepreneur and as an LLC. To begin with, they can issue a warning, but there are also material levers of influence, just like the suspension of the enterprise, and a repeated violation will be punished more severely.
Important! Since 2015, the administrative fine for the absence of a SOUT is - for officials and IP 5-10 thousand rubles, for an LLC - 60-80 thousand rubles, with a repeated fact - from 30 to 40 thousand rubles. and from 100 to 200 thousand rubles. accordingly, they can also suspend the activities of the enterprise for up to 90 days.
Step 2. Honey. reference
Before accepting an employee, in some cases, a medical certificate is required, for this he must undergo a medical examination in a special center, after which he will be issued a supporting document. It is also possible at the request of the employer to request such a document.
After receiving his copies of the documents, the employee signs in the appropriate column, in order to subsequently, if necessary, prove that such an agreement was issued to the employee in his hands.
Step 6. Job Application
The basis on which the employee begins his official duties or endowed with some kind of authority, is an order for employment. The order displays the conditions under which the employee is invited and, after familiarization, is endorsed by both parties. As a document, a unified document is used for one and T-1a for a group of persons.
Step 10. Personal card
Simultaneously with the reception of the employee, a personal card of the employee is issued, in which his personal data is entered
Step 11. Time tracking
During the life of the enterprise and visits by employees, it is necessary to keep records of working time for each employee. State. com. stat, two forms are established:
- T-12, can be used if the company will keep records of working hours and payroll with employees. At the same time, it is allowed to keep records without filling out the section on payroll
- T-13, can be used when using automated electronic equipment
Step 12. Mandatory registration with the FIU and the FSS as an employer
After the appearance of hired employees, you need to register (simply, get a number in the systems) the organization in the funds as an employer.
