Personnel issue
It happens that a woman decides to go to work when the child is under 3 years old; formally there are no violations in this and the employer has no right to refuse. Moreover, upon leaving, social benefit payments will be retained; it will be calculated by the accounting department at the place of employment in accordance with the completed application.
There is some difference in how exactly going to work is carried out, there are nuances:
| Circumstances | Solution |
| Entering the enterprise where the woman was previously registered | An employee taken on vacation must vacate the place, i.e. be dismissed or transferred to another position (Article 64 of the Labor Code) |
| A person gets a job for the first time | They have no right to refuse employment due to the presence of children; moreover, women with children under 1.5 years of age do not have the right to establish a probationary period (Article 70 of the Labor Code) |
| During maternity leave, the employment contract expired | In this case, the employer has the right to dismiss the employee without extending the contract term. |
Important! If a job is refused because an employee has children, the employer is obliged to provide an official refusal with the listed arguments. By the way, this paper can also be used in court. In this case, the entrepreneur will have to pay a fine of 50 to 200 thousand rubles.
Until the child turns 3 years old, a woman can repeatedly take leave to care for the baby. There is no need to ask the employer for consent.
Peculiarities of work for women with children under 3 years of age
The employee has the right to go to work at any time, at her own discretion. The employer does not have the right to refuse the employee such an initiative.
Due to the fact that a woman decides to go to work, there can be three scenarios for the development of events:
- A woman can go to the same place of work. In this case, the employee who temporarily replaced the employee’s position either quits or is transferred to another place of work. This procedure is outlined in Article 64 of the Labor Code of the Russian Federation
- If the employment contract expires during the vacation period, the woman will remain unemployed unless the employer decides to keep her at work
- A woman may not return to her old place of work. In this case, she has to look for a job in another organization. In this situation, the nuances of employment are regulated by Article 70 of the Labor Code of the Russian Federation.
Quite often a woman looks for another job. You need to know that employers do not have the right to refuse to hire a person due to the presence of young children.
| IMPORTANT! If such a reason is voiced, then the woman must receive a refusal in writing. It is issued within a week |
This document will be needed for court proceedings. For such a violation of the law, the employer will pay a fine of up to 200,000 rubles.
That is why not a single manager will voice the real reason for refusal of employment.
Another nuance of employing a woman with a small child is that she cannot be given a probationary period. Thus, the state is trying to protect the interests of this category of workers.
Employer's liability
The state has taken maximum measures to provide women with a number of benefits and guarantees. The Labor Code prescribes the procedure for work, the responsibilities of the employer, as well as the rights of employees. There are a lot of legal precedents due to the establishment of a probationary period or wrongful dismissal from work. Often, entrepreneurs pay not only a fine to the state, but also moral compensation to their employees, plus they are obliged to rehire the fired employee.
Most often, they do not dare to refuse due to the presence of children. Within 7 days, the entrepreneur provides a refusal due to inadequacy of qualifications for the applied position. However, such an answer can also be challenged in court if the job description does not indicate the labor obligations of employees.
Business travel work schedule and rotation method
A separate issue is the daily routine and working hours. Thus, part-time work can be established in one of the following ways:
- reduction of shift duration on all days of the work week;
- reducing the number of days of work, the shift must be full;
- simultaneous reduction of shifts and working days.
When transferring to work (for a woman with a child under 1.5 years old), the average salary must be maintained. Despite the fact that there are restrictions on the type of work performed. According to Art. 298 of the Labor Code, women with children under 3 years of age cannot be involved in:
- to work overtime;
- for business trips;
- Night work, weekends and holidays are not permitted;
- to work on a rotational basis.
For all of the listed types of restrictions, it is allowed to perform work if the employee has given her written consent.
Nursing mothers should also not perform certain types of work, for example, they should not work with heavy loads, disinfectants, gasoline, paints, etc. All these conditions are established in accordance with “Occupational Safety and Health”.
Rights of a working mother
Parental leave in our country is one of the longest in the world - a woman can officially be on maternity leave for three years, receiving a benefit amounting to 40% of the average monthly income for the last 2 years, until the child reaches 1.5 years old, and for the next year and a half — 50 rubles per month.
Labor benefits for mothers up to 1.5 years old
For one reason or another, women go to work before their children are one and a half years old. The Labor Code of the Russian Federation provides young mothers with the opportunity at any time to both go to work and return to parental leave before the child reaches three years of age (Article 256 of the Labor Code).
If desired, the mother has the opportunity to work part-time while retaining her right to receive child care benefits. Unfortunately, the number of hours by which she can reduce her working day is not regulated by law.
If a woman cannot perform her previous job, the employer is obliged to transfer her to another, with payment not lower than the average earnings for the previous job (Article 254 of the Labor Code).
A mother who returns to work and continues breastfeeding has the right to additional half-hour breaks during the working day - no less than every three hours. For a mother of twins, the duration of breaks increases to an hour. And if, for medical reasons, an employee requires more breaks, the employer has no right to refuse her this.
A young mother can move the total time of breaks to the beginning or end of the working day and come to work later or leave earlier. To do this, just write a statement outlining your wishes. All breaks are paid based on the average earnings of a working young mother (Article 258 of the Labor Code).
Working time standards
A woman with children under 14 years of age (a disabled child under 18 years of age) has the right to have a part-time working day or a part-time working week established for her (Article 93 of the Labor Code). In this case, wages are calculated taking into account the work actually done. Part-time work does not entail for employees any restrictions on the duration of annual basic paid leave, calculation of length of service and other labor rights.
An employer does not have the right to involve mothers of children under three years of age to work at night, to work overtime, to work on weekends and holidays, or to send them on business trips - this must have the written consent of the employee.
Rights of women with children upon dismissal
The list of grounds for dismissal of mothers of children under three years of age is sharply limited. This includes bankruptcy and liquidation of an organization, having several reprimands for failure to fulfill one’s duties, absenteeism, going to work while intoxicated, disclosing trade secrets, theft, damage to property and forgery of documents. It is impossible to fire them under “standard” pretexts.
According to Article 261 of the Labor Code of the Russian Federation, termination of an employment contract with working young mothers with a child under 3 years old at the initiative of the employer is not allowed.
In addition, mothers of children aged 3 to 14 years are provided with additional guarantees upon dismissal due to staff reduction - under other equal circumstances, they have a preferential right to retain or obtain an alternative position.
Where to go in case of violation of labor rights
In order to protect his labor rights and freedoms, an employee can apply to the state control authorities for compliance with labor legislation:
- State Labor Inspectorate
- Prosecutor's office (usually conduct an investigation into non-payment of wages)
In addition, the protection of labor rights is carried out by trade unions (the least effective way of protection in modern realities)
- Judicial protection is the most effective way to defend your rights.
The realization by working mothers of their legal rights allows them to achieve harmony between professional development and due attention to the family. Such knowledge should not be neglected.
Author: Oleg Polevoy
Photo from hr-method.com
Controversial issues
There are a number of situations that are not standard, but there is still practice in resolving them. Questions of the following nature:
| Under what circumstances can a woman with a child under 3 years of age still be legally fired? | Possible in such cases:
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| Do fathers or guardians of children under 3 have the same rights? | If a child is raised by a father, guardian, or adoptive parent, then they are provided with guarantees and benefits in the same way as mothers. |
| What are the guarantees for parents of disabled children? | For parents (mother or single father) raising a child with a disability, all of the above guarantees are provided until the dependent turns 18 years old. In addition, the parent has the right to choose and set the date of annual leave. Also, at the request of the mother, up to 4 days off per month can be additionally granted. |
| Who is entitled to extra days off? | According to a written statement, the following days off are allowed without pay:
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| How are temporary disability benefits calculated? | Women, as insured persons, while caring for sick children are paid:
|
As documents, the employer is presented with the child’s birth certificate. If the family is raising a disabled person, then you also need to bring the corresponding document to the accounting department of the enterprise.
Procedure for hiring a woman with a child under 3 years old
The general algorithm for hiring such an employee is no different from hiring other employees.
The future employee provides a standard package of documents for employment and must include the child’s birth certificate.
An application for admission is written and an employment contract is drawn up. It stipulates all the nuances of the work, the rights and obligations of both parties.
Only after all the conditions have been discussed and enshrined in the employment contract, an employment order is drawn up.
Once again, it is worth mentioning that in the case of an employee who has a small child, setting a probationary period is unlawful. This would be a direct violation of labor laws .
Working hours and vacation
So, going back to work has already happened, so you need to know what the work procedure is. There are situations when an employee is not satisfied with her schedule or her position has been reduced; the law has provided solutions for such cases:
| Conditions | Peculiarities |
| Part-time work | A reduction in the schedule is allowed after submitting a written application, for single women with children under 14 years of age (up to 18 years of age if raising a disabled child) |
| Annual leave | Provided regardless of length of service at the end of maternity leave, according to the employee’s application |
| Feeding breaks | If the baby is under 1.5 years old, then the mother has the right to feeding breaks at least every 3 hours, duration – up to 30 minutes. At the request of the employee, the total time of breaks can be transferred to reduce the working day, at the request of the employee |
| Transfer to another position | Mothers with children under 1.5 years old are allowed to write a statement according to which, if it is impossible to perform the previous job, she can be transferred to another position with the same salary |
The Labor Code provides that a woman may be assigned part-time working hours while on maternity leave. But the fact is that the standard for part-time work is established only for public sector employees - 35 hours a week. For other individuals, this indicator has not been established; oddities have happened when work time per day was reduced by 15 minutes and the employer was right from the point of view of the law. The only plus in this situation is that wages are paid in accordance with the amount of time worked.
If the employee took sick leave due to a child’s illness
An employee with a child is the same insured person as other employees. If a child is ill, a woman has the right to issue sick leave and care for the baby.
The procedure for paying sick leave depends on the age of the sick child:
- If a child under 7 years of age is sick, sick leave is paid in full, but not more than 60 days a year. In some cases, the total number of days on sick leave can reach 90 days
- If the child is from 7 to 15 years old, then one sick leave cannot be issued for more than 15 days, and in total - no more than 45 days a year
The company's accounting department must strictly monitor the duration of sick leave for children's illnesses.
