How to calculate the probationary period according to the Labor Code?

The sad experience of workers deceived by their employers has received wide publicity. As a result, concerned citizens already at the first interview ask personnel officers: how much do they pay during the probationary period and do they pay for the probationary period at all in the company?

It is clear that it is impossible to know for sure how the employer will behave after the adaptation period for a new employee. But how to protect your rights, fight dishonest employers and what to pay attention to when you enter into an employment contract with a probationary period - we’ll talk about this.

Situation 1. Who should not be given the test

The young specialist graduated from the institute six months ago. I have worked before, but this is the first time I am getting a job in my acquired specialty. He is given a probationary period. Is this legal?

Let's start with the fact that the test can only be ordered by mutual consent of the employee and the employer. This is provided for in Article 70 of the Labor Code of the Russian Federation, which states: “When concluding an employment contract, by agreement of the parties, it may provide for the condition of testing the employee in order to verify his compliance with the assigned work.” That is, without the consent of the employee, a probationary period cannot be assigned to him. Of course, the applicant is unlikely to be able to take advantage of this right; most likely, he will not be hired if he tries to start his career with such disagreement. But there are categories of employees for whom such a trial period is not permitted by law, even with their consent. A hiring test is not established for:

• pregnant women and women with children under the age of one and a half years;
• persons elected through a competition to fill the relevant position;
• persons under the age of 18;
• persons who have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and are entering work for the first time in the acquired specialty within one year from the date of graduation from the educational institution;
• persons elected to elective positions for paid work;
• persons invited to work by way of transfer from another employer as agreed between employers;
• persons concluding an employment contract for a period of up to two months.

Therefore, despite the fact that the young specialist from our example has already worked, it is unlawful to set a test for him. And even if he signed a contract containing such a condition, the employer cannot fire him as having failed the test.

Who has the right not to undergo probation?

There are certain categories of employees who are not required to pass a test when hired. These include:

• women who are expecting a child and have children under three years of age;
• minors;
• those who are transferred from one organization to another by agreement between employers;
• employees appointed to a position after passing a competition in the manner prescribed by law;
• employees under an employment contract valid for up to two months;
• other persons prescribed in the Labor Code of the Russian Federation.

Situation 2. Employment contract with a probationary period

The specialist got a job. The employer warned him about the probationary period. An employment contract was signed. But there was not a word in it about the purpose of the test. What are the consequences?

If a probationary period is assigned, this must be specified in the employment contract. The Labor Code of the Russian Federation states that the absence of such a condition in the employment agreement means that the employee was hired without a special period of adaptation and evaluation. Even if there is an order to appoint a trial, it will not be possible to dismiss an employee as having failed the probationary period. And the labor inspector or the court, having compared the order and the contract, will consider the absence of a corresponding clause in the contract to be a significant violation. In this case, the court will certainly recognize the appointment of a probationary period as invalid.

Registration of a probationary period in a work book: to write or not

The question of whether it is necessary to make an entry about the probationary period in the work book interests many employers.

The law clearly establishes that there is no need to mention a probationary period in the work book; only a record of hiring is made in it, and from the date on which the employee began performing work duties in the verification mode.

The employer must make all the necessary entries in the work book of each employee who has worked for him for more than 5 days, but only if this is a permanent place of work for the person.

How to draw up an employment contract with a probationary period ?

Thus, the condition of the probationary period is fixed only in the employment contract.

Situation 3. Fixed-term employment contract for the duration of the trial

The employee was offered to enter into a fixed-term employment contract for two months during the probationary period. After its completion, the contract will either be re-signed for an indefinite period, or will not be concluded if the employee does not pass the test. Is this legal?

Article 58 of the Labor Code of the Russian Federation says in black and white: “It is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period of time.” And concluding a fixed-term contract instead of completing a trial falls under such cases. Moreover, the Plenum of the Supreme Court of the Russian Federation, in its Resolution No. 2 of March 17, 2004, recommended that courts pay special attention to these points. Therefore, if an employee goes to court or the labor inspectorate with a complaint about such actions of the employer, a fixed-term employment contract can be recognized as concluded for an indefinite period.

Categories of workers for whom testing is not assigned

There are categories of persons who are prohibited from establishing a probationary period, these include:

• employees of this organization when moving to another position;
• employees of other companies hired for translation work;
• pregnant women;
• young mothers with children under 1.5 years of age;
• persons under 18 years of age;
• graduates of secondary specialized and higher educational institutions with primary employment in the acquired specialty within 1 year after receiving a diploma;
• citizens who won a competition to fill a vacant position;
• employees starting work in an elected position;
• persons with whom an employment contract has been concluded for 2 months or less.

To prove that you belong to this category of citizens, you must provide a document that confirms this fact. This document must be presented to the employer at the time of signing the employment contract. Otherwise, the appointment of a probationary period will be justified and legal.

Situation 4. Length of period

An employee gets a job as an accountant. She was given a probationary period of 6 months. Is this legal?

According to Article 70 of the Labor Code of the Russian Federation, the probationary period cannot exceed three months. The exceptions are heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations, for which the test is established for a period of no more than six months. But in our case, a person gets a job as an accountant, and not as a chief accountant or his deputy. Thus, a probationary period of 3 months is the maximum duration. And if the employment contract is concluded for a period of 2 to 6 months, then the trial cannot exceed two weeks. When concluding a contract lasting less than 2 months, there is no trial period at all.

IMPORTANT!

During the trial period, days of temporary incapacity for work of the employee and other periods when he was actually absent from work are not counted. That is, if an employee is assigned a probationary period of 2 months, and he was sick for 2 weeks of these two months, then the probationary period is extended by two weeks.

Registration according to the Labor Code of the Russian Federation: duration, conditions of the probationary period

Probationary period - how is it documented and how to accept an employee for probation without making mistakes? According to the Labor Code, the employer must indicate in the contract the fact of establishing a probationary period and the period for which it will be valid. There are restrictions on the duration of the trial. For ordinary employees, its duration cannot exceed 3 months, for management and chief accountants - up to 6 months. In addition, if the employment contract is concluded for a short period (from 2 to 6 months), the probationary period can be determined for no more than 2 weeks.

The period allotted for the test and recorded in the documents can be extended and revised upward only in exceptional cases. For example, when an employee missed work days without a justified reason, which could be illness, fulfilling a donor duty, etc. In such circumstances, the missed deadline is calculated in detail and added to the probationary period.

Registration for a probationary period under the Labor Code of the Russian Federation implies that an employee for whom a probationary period has been established is protected to the same extent as employees with employment agreements without testing. That is, all labor standards regarding wages, disability, etc. apply to him. As a result, for example, payment for his labor should be at the same rates as for main personnel. But his responsibilities are similar: he must comply with all disciplinary regulations established at the enterprise.

The difference between those employees who are forced to undergo a probationary period and those who work without such testing (already passed or were hired without testing) is only that their dismissal procedures differ.

Situation 5. Reduced salary for probationary period

When hiring a new employee, the employer tells him that he is being hired for a two-month trial period - the salary will be lower than at the end of these two months. Are these conditions legal?

What does the Labor Code say about what the salary should be during the probationary period? And in general, is the probationary period paid? Article 70 of the Labor Code states: “During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, and local regulations.” Each organization must have a staffing table, which indicates all salaries (tariff rates) for each position existing in this enterprise. Thus, for the probationary period (Labor Code of the Russian Federation), payment should not be less than indicated in the staffing table. This means that the situation with understating wages in this case is unlawful.

Of course, the employer can justify the reduced salary for the probationary period in other ways. For example, establish that after this period the first indexation of wages occurs (the Labor Code of the Russian Federation directly establishes the employer’s obligation to index the wages of employees), or transfer the employee to another position in the staffing table. Finally, you can simply increase his salary without making this conditional on passing a probationary period (for “one-off” positions that are present in the staffing table in a single copy).

You can challenge a reduced salary for the adaptation period only if it is white. Or the condition for a reduced salary is specified in the employment contract. If this condition is not specified in the contract, and part of the salary was black, then it is difficult to prove that this money was paid to you at all. However, an attempt to challenge a reduced salary assigned in the first two to three months of work is relatively realistic in our conditions only for workers who do not want to stay at a given place of work.

And one more point: in an employment contract, the salary cannot be determined by the wording “according to the staffing table.” Article 57 of the Labor Code of the Russian Federation states that the terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments) are mandatory for inclusion in the employment contract. That is, it must include either the tariff rate or salary, as well as other payments.

Payment for the probationary period

By law, work during the probationary period must be paid by the employer, and in exactly the same way as if the employee was already on staff on a permanent basis.

The legislator explains this requirement simply: since work is performed in these two cases equally and in equal importance, then infringement of the rights of an employee on probation will be considered a violation of the law.

How is the probationary period by an employee?

However, employers are not always ready to put up with this state of affairs and quite often circumvent this rule. And they do it quite legally too. For example, for the period of a probationary period, an employment contract may be concluded with an employee with a salary specified in it, as if permanent. After passing the test, this employment contract is terminated by mutual consent of the parties and a new one is concluded with a higher salary. Another way: payment of bonuses and additional payments to the organization, depending on the length of service in it.

Test results and their consequences

The new employee got a job with a probationary period. At the end of the test, the employer did not inform him of the results of the test, and the employee continued to work. Two weeks passed. Unexpectedly, the employer announced that the employee had failed the test and would be fired as a result. Did the employer violate the law with his actions?

In this situation, the employer made two mistakes at once. Firstly, if the test period has expired and the employee continues to work, then he is considered to have passed the test and subsequent termination of the employment contract is allowed only on a general basis (Article 71 of the Labor Code of the Russian Federation). Secondly, under the same article, if the employer is dissatisfied with the results of the test, he has the right to terminate the employment contract with the employee before the expiration of the employee evaluation period. But at the same time, he must notify the employee about this in writing three days in advance, indicating the reasons that served as the basis for recognizing him as having failed the test.

So, in this case, the employer did not give the employee three days' written notice, giving reasons, that he failed the test. And only after two weeks, when the person continued to work, he verbally announced the decision to fire him. Based on all of the above, it is unacceptable to dismiss an employee as having failed the test.

By the way, the Labor Code of the Russian Federation reserves the right for the employee to appeal the employer’s decision on an unsatisfactory test result in court. And in this case, special attention is paid to the formulation of the reasons why the employee was not satisfied with the employer. In this case, all statements of the employer must be supported by relevant evidence. The court will be critical of dubious, vague formulations.

If, during the probationary period, the employee himself comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance.

IMPORTANT!

Please note: not in two weeks, as with a regular voluntary dismissal, but in just three days.

So, we have looked at the most common situations in life. Let's repeat the most important rules.

Why are hiring tests needed?

Both parties (employer and applicant) can benefit from this procedure, which is not mandatory, but brings certain benefits.

Table 1. Benefits of hiring tests

Video - Probationary period when hiring

Results

Let's once again list the points that are worth paying attention to:

1. There are categories of employees for whom a probationary period (PT) is not provided at all.
2. If the IP is not included in the contract, it means that the employee, from the point of view of the law, was hired without an IP.
3. Concluding a fixed-term employment contract for the period of IP is prohibited by the Labor Code of the Russian Federation.
4. IP must not exceed three months. The only exceptions are managers and chief accountants. For them, the maximum IP is 6 months.
5. When concluding an employment contract from 2 to 6 months, the IP should not exceed two weeks. And if a fixed-term employment contract lasting less than 2 months is concluded, IP is not provided for in a fixed-term employment contract at all.
6. The salary for the IP should not be lower than the salary existing in the staffing table for a specific position.
7. If the employee does not pass the IP, the employer is obliged to notify him of his decision in writing three days in advance, indicating the reasons.
8. If the IS is over and the employee continues to work, then it is considered that he has successfully completed the IS.
9. If an employee decides during the period of employment that this position is not suitable for him and decides to quit, he is obliged to notify the employer of his decision three days before dismissal.

Remember that stability and reliability are usually where the employer complies with the law. If you get a job where you are initially asked to act illegally, then be prepared for the fact that in the event of a disagreement it will be much more difficult to defend your rights.

Samples of employment contracts with a probationary period:

Indefinite

Test period

So, the shortest time

The test is set for persons who have entered into an employment contract for a period of two to six months, and is equal to two weeks.

The longest

- for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices and other separate structural units - 6 months.

For other categories of workers

The trial period cannot exceed three months.

Please note that according to the Labor Code of the Russian Federation, it is possible to establish an “extended” probationary period for the head of only a separate, and not any structural unit (see example 8).

The Labor Code of the Russian Federation provides an exhaustive list of persons who can be subjected to a six-month “strength test”. However, in practice they often try to interpret it broadly, which is not entirely correct. In Part 5 of Art. 70 of the Labor Code of the Russian Federation, which regulates this issue, we are not talking about the management of the entire organization in general, but only about the head of the organization, deputy head of the organization, chief accountant, deputy chief accountant, head of a separate structural unit. The concept of the head of an organization is given very clearly in Art. 273 Labor Code of the Russian Federation. It can be called differently: “director”, “CEO”, “president”, etc. Accordingly, “deputy director”, “deputy general director”, etc. can apply for the title of his deputy. After these phrases, however, there may be expressions “on general issues”, “on personnel”, etc. Anyone who is the director of finance, commercial director, marketing director, or chief engineer certainly belongs to the management team of the enterprise, but cannot be considered its manager or deputy. Consequently, for such persons the probationary period cannot exceed three months (see example 9).

Example 8

The large food producing holding employs more than 3,000 people. The organization was formed at one time by combining into one legal entity three large factories (1000 people each), which operated back in Soviet times. These factories ceased to be independent legal entities and acquired the status of production divisions. At first glance, each of them seems separate: they are located at a considerable distance from each other and are not connected by a single technological cycle (they all produce different food products, although under a single brand), they do not actually interact, etc. However, from a legal standpoint, they are not separate. According to the Civil Code, only representative offices and branches are separate structural divisions. Therefore, if, when the general manager of one of these divisions is replaced, the successor is assigned a probationary period of 6 months, these actions of the employer will be considered illegal.

Example 9

The organization's staffing table provides for the position of a financial director and a person subordinate to him - a chief accountant. The latter is the immediate supervisor of all other accounting departments. Two employees are simultaneously hired to replace the financial director and chief accountant. Which of them can we establish an “extended” probationary period in this case, and which cannot? As paradoxical as it may sound, we can only arrange a six-month inspection for the chief accountant. The probationary period of the financial director will be three months.

Payment and other terms

Despite the fact that the probationary period is not mandatory, it is paid in accordance with all labor legislation. The employee receives wages according to the staffing table. Preferential or special conditions should not be applied to him - such actions on the part of management are considered unlawful. Establishing the terms of the contract on a probationary period, while the rest of the company’s employees are employed on an indefinite basis, is also a direct violation of the law.

The manager also does not have the right not to pay an employee a bonus during the probationary period.

The employer prepares and issues wages to the subject, as well as travel and other payments related to the performance of official duties, and transfers funds to pension and insurance funds. If an employee has worked 15 days or more, he is entitled to compensation for unused vacation.

In practice, this does not always happen, but the employee and manager must be informed of their rights and responsibilities. Formally, there is a way to circumvent all the prohibitions without violating the rules of labor legislation. A solution was found by establishing low salaries, to which bonuses are added monthly. They are introduced for all categories of workers, regardless of level of education, qualifications, experience, or position. Therefore, an employee may receive less than others while being in the test period when applying for a job. In addition, the contract can stipulate that the first wage indexation is established after 3 months from the start of work.

An exception to the rule is passing tests under internship conditions. The Labor Code states that the subject is not entitled to wages for this period. As a reward in this case, the employee receives experience, additional lines in the text of the resume, recommendations from colleagues, and the employer uses the employee’s qualifications to perform specific tasks within the test period.

The employer can also try to verbally agree with the employee to reduce earnings for the testing period. However, this is not documented in any way. In the event of a negative test result, an employee who is upset by this fact can complain to the territorial branch of Rostrud, the prosecutor's office and other authorities, including the judiciary. This will be followed by checks and proceedings, and in this case the employee will be legally entitled and protected by law.

The manager also does not have the right not to pay an employee a bonus during the probationary period.

It is strictly forbidden for the employer to differentiate earnings according to the staffing schedule. Salaries and bonuses must be specific and related to available positions. It is also prohibited to introduce two salaries - for a beginner and a specialist working on a permanent basis. This is a manifestation of discrimination towards persons who have entered the trial period.

A little more about the documents

It was said above that the order specifies a list of documents on the basis of which the contract with the employee is terminated. These may include:

1. Characteristics of the tested employee. The best option is to attach all reports and memos for the employee, drawn up by his immediate supervisor, as well as a detailed indication of all facts of violations, failure to fulfill official duties, etc.
2. Acts indicating the facts of the release of defective products. These documents are compiled on the basis of an appropriate product quality check and can be presented in the form of a defective statement, a defect report, etc.
3. Documents containing information about untimely completion of work tasks assigned to the subject. It is usually drawn up in the form of a detailed written report and contains information about the standards introduced by the company regarding the schedule, operating mode, and workload.

Example. A site manager was hired for a probationary period at a construction company. At the end of the test period, he was refused further cooperation. The reason is a state-issued act, in which there is a clear indication of violations at the site that are within the area of ​​competence of the specified specialist.

Special cases

During the probationary period, exceptional situations may arise. In this case, the manager must use the norms of labor legislation and rely on them in making decisions. They are basic when it comes to serious violations of labor discipline and damage caused to the organization.

One example is truancy. If this fact is recorded, Article 81 of the Labor Code is the starting point for dismissing an employee for failure to fulfill official duties. When the assigned tasks not only do not fall within the employee’s competence, but also raise questions in the context of a conscientious approach to work, disciplinary liability is applicable to the subject. When a new team member appears at work drunk, the manager also has the right to rely on Article 81 of the Labor Code and terminate the employment contract with the employee.

Article 81. Termination of an employment contract at the initiative of the employer