VS: during the probationary period, the salary cannot be lower, even if this is agreed with the employee

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Published: 04/03/2020

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— Got a job with a probationary period of one month. After passing it, I was hired. But I received a salary less than a permanent one. Is my employer right?

— Indeed, employers, in order to make sure that the hired employee suits them, introduce a special trial period, during which the employee is assigned the full scope of job responsibilities, but in case of failure, the employment contract is terminated according to a simpler mechanism. What about wages during this period? Does the employer have the right to reduce the wages of his employee during the probationary period compared to the established value in the staffing table or wage scale?

• What the law says
• Remuneration during the probationary period and its registration in employment contracts

What is a probationary period?

According to the Labor Code of the Russian Federation, a probationary period is a period during which the company's management must understand how well the candidate fits the position. Its period is strictly regulated by the provisions of the Labor Code of the Russian Federation.

If an employee is on sick leave, undergoing training, or does not perform his professional duties for other reasons, the testing period is automatically extended.

It is required to indicate in the employment contract that the employee is hired by passing a test, based on the results of which management will decide on the advisability of continuing cooperation.

It is necessary to specify the working conditions at the initial stage, as well as the employee’s responsibilities. If there is no information about the probationary period, it is considered that the employee was hired without it. The Labor Code allows you to extend the duration of the test if necessary.

But for this it is necessary to conclude an additional agreement where all the conditions will be specified. If management illegally provides a contract with a trial period for signing, the employee can accept it and then go to the State Labor Inspectorate or the court to have it amended.

It is not always allowed to establish a probationary period, according to the provisions of the Labor Code of the Russian Federation; it is not allowed in relation to:

• pregnant women;
• pensioners;
• minors;
• disabled people;
• passed the competition;
• persons who are getting a job for the first time;
• citizens who received positions as a result of direct or indirect elections;
• employees whose fixed-term contract lasts less than two months;
• employees transferred from other organizations.

Thus, the employer must take these nuances into account when hiring an employee. Some categories of persons have a number of privileges that are enshrined in the Labor Code of the Russian Federation, so it will be more difficult to fire them. To avoid problems with staff, most employers try not to hire beneficiaries.

Reflection of remuneration issues in the Probationary Period Regulations

The specific duration of the internship will be determined directly by the employer, depending on production needs.

The structure of the Regulations may include the following sections:

1. General information. It is assumed that the first section of the document reflects the main goals pursued by the standard. Thus, this paragraph may contain references to other legislative acts confirming the legality of the document being drawn up. At the same time, there is no legally regulated form of the Probationary Period Regulations.
2. Main part. This section should provide information regarding all significant conditions of employment, including during the probationary period, which directly affect the process of labor activity. For example, it is strongly recommended to describe in this paragraph the specifics of termination of professional relations between the parties, a list of offenses, as well as the procedure for certification and final hiring of the subject. Among other things, it is also appropriate to record the features of the document flow associated with the probationary period, which will significantly simplify the execution of this operation.
3. Final section. It may indicate attachments, for example, sample documents that the parties need to draw up in the future.

Thus, in the issue of providing wages during a probationary period, legislative and local regulation plays a major role. Employers should not artificially lower the amount of earnings established for a specific position, otherwise the controlling authority will hold them accountable.

Are salaries paid?

Some employees believe that at the initial stage the company does not pay salaries. This statement is partly true. From time to time, firms enter into a verbal agreement about the intention to hire a person, but first he needs to undergo training.

This period can range from several days to two months. In this case, the candidate does not receive a salary, since he is not employed.

Moreover, the employee bears financial costs for the following:

• travel to and from the place of training;
• purchasing various materials (this is often practiced).

After completing the training you are required to pass a test. Those individuals who successfully pass it are automatically enrolled in the organization. If they are asked to undergo several more tests (for example, to do a test task), then a probationary period according to the Labor Code of the Russian Federation is not allowed.

How is compensation calculated upon termination of an employment contract during a probationary period?

Upon dismissal during probation, payment for time worked is calculated on a general basis. The same applies to unused rest days. For a full month worked, each employee is entitled to 2.33 days of paid rest. For a month in which more than 15 days were worked, the number of days is taken as for the full period - 2.33. If less, this time is excluded from the calculation. If the dismissed employee is entitled to additional leave, the number of days increases.

Average daily earnings for vacation pay are calculated according to general rules, but the last month of work is included in the calculation only when the employee quits on the last day (Letter of the Ministry of Labor N 2184-6-1 dated July 22, 2010).

Example

Let's look at the calculation of payment upon dismissal using an example. Initial data:

• salary is 32,000 rubles;
• the employee quits on a probationary period, having worked the period from March 1 to April 20, the salary for March has been received in full;
• in April, the employee worked 16 days, the number of working days according to the production calendar is 20.
• The employee is not entitled to severance pay.

The calculation steps are as follows:

1. salary part - 32,000/20 * 16 = 25,600 rubles;
2. We calculate the amount for unprovided rest - the employee needs to pay 4.66 days, since in April he worked more than 15 days. First, the average daily earnings are calculated; to do this, we divide the salary for a full month (March) by the average monthly number of days in a year - 29.3. We get - 32,000/29.3 = 1,092.15 rubles. The total compensation will be 1,092.15 * 4.66 = 5,089.42 rubles.
3. on the date of dismissal, the employee is paid salary and compensation minus income tax - (25,600 + 5,089.42) - 13% = 26,699.80 rubles.

If the date of termination of the relationship between the parties was the end of the month, then the entire period worked would be included in the calculation.

What does the Labor Code say?

The question of how much to pay an employee during the test is decided individually in a particular case. Since a beginner cannot work quickly and efficiently (he needs to understand the specifics of the work process), the employer can set a lower wage.

This is not prohibited by the provisions of the Labor Code, so management often uses it. Practice shows that the salary for the probationary period is reduced to 30%.

In companies where there is a minimum wage, and everything else is a bonus for effective work, employees receive the minimum payment if they do not show good results right away. However, this is difficult to do due to the lack of a customer base.

All employees employed in the same position have equal opportunities for career growth. They use identical salary calculation conditions, so the amount of payments directly depends on the newcomer himself.

Minimum level

Current legislation stipulates that an employee cannot receive less than the minimum wage. Thus, during the probationary period, the employer can set this salary amount.

You must understand that each region has its own minimum salary, which is regulated by regional legal acts. And an employee who is allowed to perform his official duties after the test is considered hired on a permanent basis.

At the same time, his salary should increase if at the initial stage it was reduced.

Expert opinion

Irina Vasilyeva

Civil law expert

It is possible to conclude a part-time contract. Then the minimum wage will be ½ of the minimum wage.

Less than indicated in the staffing table

Article 135 of the Labor Code of the Russian Federation states that the remuneration system should be established by internal orders of a particular organization. The employment contract must indicate the terms of salary payment with the amount of salary and bonus parts (Article 57 of the Labor Code of the Russian Federation).

It is worth understanding that the salary is the minimum payment that is guaranteed to the employee. It does not depend on the effectiveness of his work and is paid based on the provisions of the Labor Code of the Russian Federation. Salaries must be paid twice a month, but the dates are set by the company.

If the position has various additional incentive payments, then they may not be paid during the probationary period. However, this is only allowed if the candidate does not meet certain requirements.

For example, lack of experience or failure to meet quantitative and qualitative indicators. In other cases, it is necessary to pay the full salary, taking into account the incentive portion.

If an employer violates these provisions of the Labor Code of the Russian Federation, he is given a fine of up to 50,000 rubles on the basis of Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. Thus, paying less than indicated in the staffing table is allowed only if there are compelling reasons.

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How can an employer avoid problems?

The rights of newcomers on a probationary period, established by law, significantly complicate the life of the employer, who is not yet sure that this employee will be suitable for the position, but is already obliged to pay him a full salary.

What to do in this situation? First of all, in the employment contract, instead of stating “wages according to the staffing table,” reflect a specific amount. However, you cannot pay less than the regular salary either.

You can set a lower payment by justifying the following step:

1. Accept at 0.5 rates with payment in proportion to the time worked. Part-time working hours are established by agreement of the parties and do not entail any infringement of the employee’s labor rights (Article 93 of the Labor Code of the Russian Federation). In the future, you can conclude an additional agreement to the contract and switch to payment at the full rate.

Note! A transfer to full time is made based on the employee’s application, since there is a change in the terms of the employment contract. It is possible only by agreement of the parties (Article 72 of the Labor Code of the Russian Federation).

2. Introduce different positions into the staffing table with different salaries. Commercial firms have this opportunity, and it does not contradict the law. The restriction applies only to positions for which benefits are provided, it is necessary to establish categories, or state, municipal positions (Article 195.3, 143 of the Labor Code of the Russian Federation). It is quite acceptable in ShR, for example, to have the position of “trainee programmer”, with a corresponding lower salary than that of a programmer. At the end of the probationary period, the employee can be transferred to the position of programmer or, if the test is not passed, fired. The position of “trainee programmer” will remain vacant.

Note! The list of responsibilities for a trainee employee should be smaller, their complexity lower, compared to the main one of the same position. Otherwise, justifying a salary reduction will be problematic.

Care should be taken when calculating bonuses for an employee during a probationary period. The criterion here is the provisions of the LNA or the terms of the employment contract with it. Example: the LNA indicates the possibility of paying a bonus for fulfilling a sales plan - the payment is made to everyone, including newcomers; The bonus is paid in connection with the achievement of a certain length of service - it is not awarded to newcomers.

Increase in wages after passing tests

Often, after passing the tests, the employee’s salary is increased. If the employment contract regulates the issue of reducing wages during the trial, then after this period he receives 100% (according to the wage scale for a certain position).

There is no need to issue any order. If the employee continues to work, the accountant makes calculations in accordance with the order on the differentiation of wages at the enterprise.

This means that the employee must have an equal opportunity to receive the bonus portion of the salary after passing the test. Also, all payments that are due for the position are provided.

If the salary is lower during the probationary period - consequences for the employer

When considering such cases, the courts remind that the contract with the employee must contain a clause on remuneration. But it is prohibited to reflect conditions that deliberately worsen or limit the guarantees and rights of personnel in comparison with the law. Even if such a clause is included in the TD and the contract is signed by the employee, such conditions are not subject to application by the employer.

For failure to comply with these requirements, the court obliges unscrupulous employers to pay additional wages in full. Additionally, the employer faces a fine under Part 1 of Art. 5.27 Code of Administrative Offences. The amount of sanctions is:

• For officials – 1000-5000 rubles.
• For employers-legal entities – 30,000-50,000 rubles.
• For individual entrepreneurs – 1000-5000 rubles.

Failure of probation, employer actions

Not all employees cope with their job responsibilities, and therefore fail to complete the probationary period. An employee can resign of his own free will, realizing his inadequacy for his position. In this case, the work will be three days.

Failure of the probationary period is possible for several reasons:

• newcomer incompetence;
• lack of discipline;
• presence of bad habits;
• inability to join the team;
• presence of complaints from security personnel.

After unsuccessful completion of the probationary period, the employer may:

1. terminate the employment contract with the employee. He must be warned about this and provided with an objective reason;
2. transfer the newcomer to another position, taking into account his professional qualities.

Thus, failure of the probationary period does not always result in dismissal.

Is payment required during the test according to the Labor Code of the Russian Federation?

It was already mentioned earlier that the probationary period is a kind of test for both the head of the enterprise and the applicant. The procedure for its establishment may be prescribed in a special Regulation.

During the internship, the worker is engaged in performing the job duties assigned to him. Therefore, this period can be considered as normal work. This, in turn, is subject to mandatory payment.

Is it necessary to establish a test for a part-time worker?

During the probationary period, the employee is subject to the same rules of labor legislation that apply to ordinary workers working on a permanent basis. This fact is determined by Article 70 of the Labor Code of the Russian Federation.

One of the fundamental rights of working citizens is the right to timely and full payment for their work.

It is equally important to take into account that, according to the rules defined by labor legislation, the salary of an employee on a probationary period should not be less than the income of an employee holding a similar position on a permanent basis. This point is reflected in Article 22 of the Labor Code of the Russian Federation.