How to avoid fines for refusing to hire

Refusal to hire under the Labor Code

Employers often refuse people without giving significant reasons. In this position, candidates are at the least advantageous position at the very beginning. According to Article 64 of the Labor Code of the Russian Federation, it is prohibited to refuse registration without clearly substantiated arguments, and under Part 6 of the mentioned article, unmotivated rejection of a candidate is challenged in court

. In fact, it is almost impossible to oblige the employer to sign a contract, and legal practice on this issue rarely develops in favor of citizens.

The employer has the authority, at his own discretion, to make the necessary decisions regarding the selection, hiring and dismissal of employees. In some cases, the employer refuses applicants, but for illegal refusal there is liability in accordance with Part 1 of Art. 64 Labor Code of the Russian Federation.

To correctly formulate a justified refusal to an applicant, the following recommendations are useful:

• you need to make sure that the applicant is not one of the persons who, by law, cannot be refused employment;
• determine whether there are real grounds for rejecting the applicant’s candidacy;
• the message must refer to the law if the applicant is not included in the category of persons who are prohibited from refusing;
• provide a reasoned refusal to hire in writing if the citizen requests it;
• the refusal should be handed over to the applicant or sent by letter with an inventory and notification attached.

A written justification for the impossibility of hiring is not required only if there is no vacant position at the enterprise.

Appealing a refusal to hire in court

Current legislation provides for the following procedure for appealing an employer’s refusal to hire:

An applicant who has received a refusal has the right to demand from the administration of the enterprise a written justification, certified by the seals and signatures of responsible employees of the company. If you disagree with the arguments presented, the candidate has every right to judicial protection of the labor rights of employees, which includes filing a claim with the courts, providing in addition to this document a maximum of others confirming his compliance with job requirements.

And the defendant can attach the results of testing, interviews and a list of requirements for applicants in accordance with the job description of the approved sample. Judicial protection also includes the protection of dismissed employees, for example, in the case of dismissal on inappropriate grounds, in this case a change can be demanded in court.

Grounds for calling refusals to hire illegal:

The unconditional grounds for an employer’s refusal to hire an employee, of course, as stated above, are refusal associated with discriminatory grounds, which also include gender, race, skin color, etc. The legislation also identifies certain categories of applicants for whom refusal to hire is unacceptable for one reason or another, such as, for example, the following:

• women with children, as well as pregnant women
• employees dismissed by transfer from another organization.

A refusal to hire due to non-compliance with the requirements for the applicant established by the employer, as well as on the grounds of business qualities, will be lawful and there is no particular point in appealing such a refusal.

ATTENTION: do not miss the deadline for appealing a refusal to hire, which by law is 3 months. These deadlines are only possible if valid reasons for absence are provided.

Legitimate reasons for refusal

In order for the employer’s negative response to be justified and motivated, it is necessary to refer to the fact that the employee does not have the required qualities that are paramount for carrying out this type of work activity. These qualities mean the ability to perform labor functions and compliance with professional requirements.

Professional qualities include appropriate education and experience in the profession, the required specialization or qualification level. Personal - the level of communication, the ability to clearly follow the orders of the manager, health parameters, achievements in the profession.

An employer’s refusal to hire may be considered legal in the following situations:

1. A minor citizen who has not received permission from parents or legal representatives for employment.
2. The documents required for registration were not presented.
3. The work involves difficult working conditions, and the candidate is female. Women are prohibited from carrying heavy loads, and mothers of large families with small children are not allowed to engage in activities with irregular work schedules. Minor applicants can be rejected for the same reason: they should not lift heavy objects, endure excessive mental stress, or perform work under hazardous working conditions.
4. The applicant for civil service does not speak Russian.
5. There is a disqualification recorded in the work book.
6. The applicant has a court-ordered restriction on performing certain job duties.
7. The citizen has mental illness.
8. Foreigners who apply for activities related to state secrets.

You can refuse for other reasons if they have clear arguments.

City Employment Center

For a person left without a source of income, who has lost his job or something else, one of the options for the material arrangement of the future is the Labor Exchange. This government agency will help you find a new place; sometimes you will have to choose the one you like best, one that matches your professional qualities.

Next, you need to conclude an agreement necessary for registration. Other employment options are not in accordance with the law of the Russian Federation and will sometimes entail administrative penalties. The Labor Code (hereinafter referred to as the Labor Code) of Russia clearly regulates the necessary documentation.

Article No. 65 determines what documents are needed for employment:

• Identification document (usually a passport).
• Work book (if the profession is additional or the person enters into an employment agreement for the first time, not necessary).
• State official certificate of pension insurance.
• Military ID and registration sheet must be attached (if available).
• Diplomas of education, certificates of qualifications provided upon admission to a new position (in the case of a specialized workplace).

When a person first approaches an employer to look for a new job and receives a positive decision on employment, a correctly executed work book and a certificate of pension insurance are purchased and issued at the new place by the employer at his own expense.

In case of loss, damage, or other loss of a work book due to the fault of the applicant, the latter must submit a written application (indicate the reason for the loss) to register a new book.

Unlawful reasons for refusing to hire

Obtaining a job cannot be related to the applicant’s place of residence. Rejection of an applicant for the following reasons is considered discrimination:

• religion;
• nationality;
• race;
• age restrictions.

Reasons that degrade human dignity include:

• pregnancy;
• having a child;
• chronic diseases;
• disability;
• lack of registration at the place of residence;
• lack of membership in a trade union body;
• non-acceptance of the results of elections, competitions, court decisions.

IMPORTANT! It is impossible to refuse a person with a disability if he has provided a referral under a quota mandatory for the organization.

For those who have Russian citizenship, registration is optional. Applicants are not required to be union members. Elected positions and winning competitions are outside the scope of the employer’s competence. A court decision on the employment of a citizen is not subject to discussion and cannot be challenged.

Unreasonable refusal to hire

If an employer refuses a candidate precisely because of business qualities, then this is legal.
According to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2, “business qualities” are the ability of an individual to perform a certain labor function, taking into account his professional qualifications (for example, the presence of a certain profession, specialty, qualification), personal qualities (for example , health status, level of education, work experience in a given specialty, in a given industry). In addition, the employer has the right to present to a person applying for a vacant position other requirements that are mandatory for concluding an employment contract as expressly prescribed by federal law, or that are necessary in addition to standard or typical professional qualification requirements due to the specifics of a particular job ( for example, knowledge of one or more foreign languages, computer skills). The applicant, in turn, has the right to demand that the employer state the reason for the refusal in writing. The employer is given seven working days from the date of presentation of the demand to respond (Article 64 of the Labor Code of the Russian Federation).

Important: The employer must enter into an employment contract without any conditions:

• with an employee who came as a transfer from another company, if a month has not expired from the date of dismissal from the previous place (Article 64 of the Labor Code of the Russian Federation);
• with an employee admitted to work (Article 67 of the Labor Code of the Russian Federation);
• in the presence of a court decision on the conclusion of an agreement, including the case when it is proven in court that labor relations were replaced by civil ones (Article 11, Article 16 of the Labor Code of the Russian Federation);
• if there is an order from the labor inspectorate that has not been appealed in court to eliminate violations related to the replacement of an employment contract with a civil law one (Article 19.1 of the Labor Code of the Russian Federation);
• a disabled applicant within the quota established by the subject of the Russian Federation (Article 21 of the Federal Law of November 24, 1995 N 181-FZ “On the social protection of disabled people in the Russian Federation”). In St. Petersburg, employers with an average number of employees over 100 people are set a quota of 2.5% of the average number of employees (Article 1 of the Law of St. Petersburg dated May 27, 2003 N 280-25 “On quotas of jobs for employment disabled people in St. Petersburg").

Refusal to hire because a candidate does not have a certificate of registration of an individual with the tax authority at the place of residence in the Russian Federation (TIN) is illegal.
In case of a dispute, the court will side with the employee. When hiring, a TIN is required only if a service contract is concluded with a civil servant (Article 28 of the Labor Code of the Russian Federation, clause 6, part 2, article 26 of the Federal Law of July 27, 2004 N 79-FZ).

Important: In Art. 65 of the Labor Code of the Russian Federation lists the documents that a future employee must present when concluding an employment contract:

• passport or other identity document;
• insurance certificate of compulsory pension insurance - except for those situations when the employee is employed for the first time;
• work book - except for the case when the future employee is employed for the first time or part-time;
• military registration documents - for those liable for military service and conscripts;
• document on education – if the work requires special knowledge and skills;
• a certificate of no criminal record or criminal prosecution - if this condition is established by law. This is true, for example, for teachers.

Situation #1: If an applicant has not submitted the required documents, can the company refuse to hire him?
The refusal will be lawful if the lack of documents makes it difficult for the employer to reliably determine the applicant’s business qualities. For example, a candidate presented a work record book, but did not present a passport. How, in this case, can the employer make sure that it is this person who owns the presented work record? This refusal is not considered discriminatory.

Situation #2: Is it possible to refuse a job if the applicant has not submitted military registration documents?

Such a refusal is unlawful. The Labor Code of the Russian Federation does not prohibit hiring an employee who has not presented a military registration document. Moreover, it is considered illegal to restrict a person’s right to work and refuse to conclude an employment contract on any grounds not related to business qualities (Article 3 of the Labor Code of the Russian Federation). In any case, the organization must inform the military registration and enlistment office that an employee who is subject to military registration has been hired (clause 32 of the Regulations on military registration, approved by Decree of the Government of the Russian Federation of November 27, 2006 N 719).

Situation #3: There is no record of dismissal from a previous job in the candidate’s work book. Is it possible to register it with a company?

Yes, it's possible. To refuse to conclude an employment contract due to the absence of a record of dismissal from a previous place, on the contrary, is unlawful. Such a refusal can be regarded as a restriction of rights when concluding an employment contract (Article 64 of the Labor Code of the Russian Federation).

Who cannot be denied employment?

There are preferential categories of citizens who cannot be denied employment, regardless of the subjective attitude and preferences of management or personnel department employees. According to Article 64 of the Labor Code, it is prohibited to refuse to hire:

• pregnant workers;
• mothers or fathers raising a child alone if they are the sole breadwinner;
• candidates by invitation who have already left their previous position.

ATTENTION! If the owner has changed, the chief accountant and director may be refused to renew the contract. But this can be done no later than 3 months from the moment the new founder appears.

Written refusal to hire an employee with wording

A common reason cited is a lack of skills stated in the open position description. The refusal must contain information about what skills, abilities, and business qualities do not meet the stated requirements.

If, based on the selection results, a decision is made to refuse the applicant and he requests a document with confirmation, then the manager who made such a decision is obliged to:

1. Submit a refusal to hire against a signature, having first put a registration number on the document.
2. Clearly formulate the reasons for the negative decision.
3. A signed copy of the recipient and a written statement requesting the document should be retained.

The letter to the applicant must be written in a correct and respectful manner. You can use the following language: “Your resume will be reviewed when new vacancies become available. We wish you good luck in your future job search!”

Earn money online

With the development of scientific and technological progress and the Internet, job search has become much easier for the job seeker. Excluded the documents required when applying for a new place of employment. It has become possible to find something suitable without leaving home, without getting up from your workplace or other place, if a person has modern gadgets, smartphones, tablets, etc.

Private and public structures do not stand still, offering citizens of the Russian Federation new places to work and providing services, both direct employer and intermediary. In some cases, applicants will have to pay for the required job search services, of course, if the outcome is positive, sometimes for free.

Including information on documentation, rules, filling standards, reviews of places of work, recommendations, etc. is provided on the Internet. Information portals and websites provide job seekers with their own labor exchanges or separate sections dedicated to job searches.

Working on the Internet does not require the execution of employment agreements, no documents are needed for employment, nothing needs to be formalized, with all the ensuing consequences. Whether you need it or not, decide for yourself. But remember that in case of violation of legal rights, non-payment of wages or other violations, according to the law you will not prove that you are right, in most cases (there are exceptions).

Employer's liability for unjustified refusal of employment

For an insufficiently motivated refusal, the employer may be subject to administrative, disciplinary and criminal liability. Measures are applied to employees of the enterprise in the form of a reprimand, reprimand, as well as:

• Administrative liability occurs in case of violation of legislative norms. In this situation, the penalty will be a fine. Failure to comply with the law may result in the company's operations being suspended for up to three years.
• If a pregnant woman or an applicant with children is denied employment, the employer who made such a decision may incur criminal liability. The culprit is subject to a fine of up to two hundred thousand rubles or correctional labor.

If employment is unfairly denied, a citizen has the right to apply to the court

a claim for restoration of violated rights, compensation for material and moral damage.

Employer's liability

The admission of an employee who has not passed a mandatory preliminary medical examination to perform work duties may entail administrative liability (Part 3 of Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation), namely the imposition of a fine:

• for an official - in the amount of 15,000 to 25,000 rubles;
• for an individual entrepreneur - in the amount of 15,000 to 25,000 rubles;
• for a legal entity - in the amount of 110,000 to 130,000 rubles.

For repeated commission of a similar offense, these persons may be subject to administrative punishment in accordance with Part 5 of Art. 5.27.1 Code of Administrative Offenses of the Russian Federation:

• for officials – a fine in the amount of 30,000 to 40,000 rubles. or disqualification for a period of one to three years;
• for individual entrepreneurs - a fine in the amount of 30,000 to 40,000 rubles. or administrative suspension of activities for up to 90 days;
• for legal entities – a fine in the amount of 100,000 to 200,000 rubles. or administrative suspension of activities for up to 90 days.