What is wrong with hiring in IT?
In fact, two camps or even more gathered, but did anyone even think to look at the legislation?
- Why is there labor law and labor rights?
- What are the legal implications of the test task?
- How to get paid on illegal waivers.
Warning: never a lawyer - use a qualified consultation!
1. Why are there labor laws and labor rights?
If formally, then go to Wikipedia / Labor_right . It would seem a lot of things written, but really did not say anything.
It does not say the essence of the fact that in obedience to the law of a particular civilized state and participating in its financial system, a person gives a part of his independence in exchange for guarantees of employment, protection and social security. This imposes certain obligations on the employer, which he is obliged to accept and fulfill.
This implies a lack of “intelligibility” to ensure the right to equal access to work and to prevent other discrimination. In fact, the employer is obliged to hire any person who meets the requirements in the ad. From this it follows that they are obliged to take in the order of receipt of a resume. If the employee was not invited for an interview, and the ad is not deleted or re-posted, then this is direct provable discrimination. Even to many workers this may seem a little absurd, but it is for this that they shed their blood. By the way, now it has reached the sad requirements of some projects in the Code of Conduct ...
Many employers still live with the mentality of the slave system, considering people to be a resource that can work as a device with strictly defined technical parameters, they are driven to wear out without maintenance and are replaced with a breakdown. In the circle of such slave owners, it is completely inappropriate to stutter on the rights of people and workers. They surround themselves with HR-men with exactly the same mentality, who are even more outrageous in the best traditions of conformists. The whole recruiting industry lives on a secret commission from an employee, making people a commodity. Often this secret kitchen can be the reason for the refusal to hire.
I would like to say that this is the specificity of the post-Soviet space, but this is far from the case. Such entrepreneurs are everywhere, but of course here their number is indecently large.
2. What are the legal implications of the test task?
The Labor Code of most socially developed countries provides for the following procedure for hiring:
- A potential employee is interviewed.
- A person is hired for a trial period (not more than three months).
- If an employee is not dismissed during a probationary period, then he has all social guarantees.
For example, in the labor legislation of the Republic of Latvia everything is clear with the procedure for hiring, and in the Labor Code of the Russian Federation is a bit more confused and scattered around chapters.
First , the labor law seems to lack the concept of a “verification task”, “knowledge test” or something similar between a candidate and an employer - this is only for certain categories of miners and in the powers of individual authorities in the framework of labor protection. The qualification of the employee is confirmed by
educational documents ( Chapter 31 of the Labor Code of the Russian Federation )!
Secondly , the notion of an interview is stupidly absent in the Russian TC - it is not directly regulated, which is extremely sad. Instead, it is required to rely on indirect norms from the Constitution, international obligations of the Russian Federation and other norms of the Labor Code of the Russian Federation. And the elephant is forgotten! It turns out the employee must hire a little if not automatic. Paradox!
Thirdly , on the basis of Article 16. TK RF :
Labor relations between the employee and the employer also arise on the basis of the actual admission of the employee to work with the knowledge or on behalf of the employer or his authorized representative in the event that the employment contract has not been properly executed.
This directly means that the assigned test task establishes LABOR relationship between the candidate and the potential employer!
Fourthly , Testing, incl. The test task is a part of the employment contract and labor relations of Article 70 of the Labor Code of the Russian Federation . The same proceeds from the description of the employment contract of article 57 of the Labor Code of the Russian Federation .
Fifth , on the basis of the same article 70:
The absence in the employment contract of the conditions on the test means that the employee is hired without a test.
As you understand, labor relations are payable. Without an employment contract for an employer, it is already administrative or even criminal liability in the case of giving a test task to a foreigner.
A candidate has the right to recognize himself as an employee without a trial period and to demand payment from the moment of receiving the test task. An employee without a trial period cannot be fired for nothing.
3. How to get paid on illegal waivers
Everything is elementary simple:
- Look for a lawyer in the case.
- Submit your resume.
- Get a test task.
- For decency perform high quality, but this is not necessary.
- Waiting for the payment term.
- You apply to the court for recognition of labor relations and payroll from the time of the test task.
If the RFP is not specified in the announcement, then you can try to clarify it in the correspondence or the average RFP level at the enterprise for such a position can be requested by a lawyer.
Yes, there are customs, but in the presence of regulation they are canceled. A test task is a custom that bears the responsibility described above.
Guys, because the law is also an instruction. Perhaps the most important instruction in your life. Read.
If someone has success stories, let me know! Well, or refute my theses at the worst.