September 10, 2013 at 01:56What you need to know about labor rights for each employee. Part 2
In the first article, “ What you need to know about labor rights for every employee, ” we told and made several recommendations on how to protect yourself when applying for a job and dismissing from it. In addition, they launched a small study *, to which many habrayuzers responded. The second part is devoted to issues related to wages in one way or another.
We all work, including in order to rejoice in the transfer of wages to bank cards. And we are very upset when notifications are delayed or inform us about the arrival of the wrong amounts that we expected. Salary is perhaps the most important part of the employment relationship for the employee and, even if we are willing to tolerate violations during work or in working conditions, we usually do not want to put up with violations in wage payments.
The employee and the employer independently agree on the amount of wages. All conditions of remuneration are fixed either in a collective agreement, or in an employment contract with a specific employee, or in local regulations of the employer. The first thing that every employee should pay attention to is that he has in his hands a document confirming the right to pay in a certain amount.
It is recommended that you receive regular checklists, which will reflect information on wages, on accrued and actually paid insurance contributions for compulsory pension insurance, on the period of work with this employer, etc. These sheets will be a confirmation that you are officially registered and all payments are made through accounting.
There is a widespread legalized way of infringing on the rights of an employee - dividing wages into salaries and bonuses. Since bonus systems are established by collective agreements, agreements, local regulations ( Article 135 of the Labor Code of the Russian Federation ) and there are no collective agreements in most companies, the payment of the premium part is regulated exclusively by the employer.
The employer himself determines when, to whom and in what amount he will pay the bonus. As a rule, in such a scheme, the premium is a significant part of the salary, which puts the employee in a dependent position, because in case of non-payment of the bonus part, he most likely will not have the opportunity to challenge the actions of the employer. Therefore, if you agree to such conditions of remuneration, then try to clarify:
This will not guarantee that you will not be deceived with the premium part. But this will bring at least some clarity. The only effective way to protect yourself in this situation is to get the employer to transfer the bonus part to salary. Otherwise, the risk of non-payment or reduction of the premium will remain. This problem could be solved if it were possible to legislatively fix the proportions between the salary and the premium in order to stop abuses by the employer in this matter. Trade unions regularly put forward this demand, but so far the question remains open.
One can hardly say much new about the “black” wages. Everyone understands that labor relations without obligations rest solely on the honest word and decency of the parties. The main negative consequence of receiving “black” wages is that the position of the employee is completely dependent on the goodwill of the employer, and the employee is deprived of the opportunity to assert his rights using the established state remedies, since it will be extremely difficult to confirm the amount of wages established for you. In this situation, the employee at any conflict with the employer risks:
Since the reality is that today it’s not always possible to protect yourself from “black” wages, then if you get “black” wages, you must try to get evidence of what size of wages you get. As evidence, audio or video recordings, payrolls, records of telephone conversations, employment contracts of employees with previous employers, advertisements, information from statistical agencies, as well as information that other employees can give about their salaries can be used. This evidence may come in handy in court if the employer decides not to pay you wages.
Usually, the employer changes the terms of remuneration for the worse unilaterally: either in an ultimatum form (either this, or quit), or referring to some difficulties that do not allow maintaining the previous conditions. Many workers are sure that this should be: it is unfair, of course, but if the employer has decided so ... This is a misconception that either American films or the employers themselves introduce us in the hope that you are not familiar with your rights. In fact, the employer has the opportunity to solely change the terms of remuneration for his employee is extremely limited. Let's try to figure it out.
On the one hand, all conditions of remuneration are mandatory for inclusion in an employment contract ( Article 57 of the Labor Code of the Russian Federation) and changes to the terms of the employment contract specified by the parties are allowed only by agreement of the parties to the labor contract ( Article 72 of the Labor Code of the Russian Federation ). Thus, the employer cannot single-handedly decide that this month you will receive less. He can only offer you to agree this month (or this month) to start receiving less. And, of course, you have the right to refuse by law such a tempting offer.
On the other hand, the employer has the right to change the terms of remuneration for reasons related to changes in the organizational or technological working conditions, if, however, the terms of the employment contract specified by the parties cannot be saved, their change is allowed on the initiative of the employer ( Article 74 of the Labor Code of the Russian Federation) In this case, the employer must:
But for changes in wage conditions, the employer must have objective reasons - a change in organizational or technological working conditions without the possibility of maintaining existing conditions. So, the fact of the merger of several departments in itself does not give the employer the right to reduce the salary of their employees, since in this situation nothing speaks of the impossibility of maintaining the previous salaries. It is also not a basis for a unilateral change of the terms and conditions of an employment contract as determined by the parties, a decision by shareholders or founders of a legal entity or a “financial crisis”.
If you have received a notification about changes in the terms of the employment contract and in particular the terms of remuneration and do not agree with them, then you should not write “agree” on the notification so that this could not subsequently be regarded as a change in the terms of remuneration by agreement of the parties. Meanwhile, it is impossible to refuse from these changes, since this can be regarded as a refusal to continue work, which is the basis for the termination of labor relations. In this case, it is recommended to write something similar on the change notification:
Then proceed to appeal against the actions of the employer.
If wages are not paid on time, then you can require the employer to pay compensation:
As shown in the “ TP for Beginners ” article , interest is an extremely small amount.
You can suspend work until the debt is paid off:
In this case, it is necessary to notify the employer in such a way that will fix the fact of receipt of the application: either by the signature of the employer, or with witnesses, or by registered letter with notification. In any case, it will be possible to suspend work no earlier than from the moment the employer receives the application.
As the survey showed , in 50% of habrausers, wages were not indexed even once, and almost 20% were indexed less than once a year.
Prices for all goods and services are constantly growing. In order to ensure that the well-being of workers does not even worsen, Article 134 of the Labor Code of the Russian Federation says that the employer must increase (index) wages in connection with rising prices.
Moreover, the Federal Service for Labor and Employment (Rostrud) in a letter dated April 19, 2010 No. 1073-6-1 concluded that the law establishes an unconditional obligation for an employer, not even financed from the state or municipal budget, to index.
Often, employers do not comply with this norm, and employees simply do not know about it, so inflation is ahead of wage growth. If indexation is not carried out, then employees have the right to demand the inclusion of a clause on increasing wages by the amount of inflation in the local regulation on wages. It happens that the company does not have such an act. Then you need to demand that the employer develop it and include an indexation clause there. Lack of wage growth is a violation of the law. To eliminate it, you need to contact the prosecutor's office or the State Labor Inspectorate.
As practice shows, it is more efficient to achieve indexation not separately by each employee, but together, by the majority of employees. In addition, Rosstat underestimates inflation, so it makes sense to require indexation of wages by inflation plus an additional percentage. Ideally, it would be a collective bargaining agreement with the employer, which would prescribe the mandatory annual indexation of wages. A collective agreement, in turn, can only be concluded by a trade union, in which more than half of the workers are members.
We have nothing to add to the recommendations we made in the first article:
1. In any obscure [labor] situation, read the Labor Code.
You need to know and understand your rights when they are violated. As they say, whoever is warned is armed.
2. Request, collect, store documents regulating labor activity.
In this sense, the employer is in a better position: all the necessary documentation is stored from the beginning, and legally protected from any unlawful attacks by the employee :) Therefore, the workers themselves are in a vulnerable position due to lack of information and the inability to back up their position links to documents.
3. To make demands and defend their rights more effectively collectively.
As a rule, employees of one company have similar working conditions. Therefore, it is logical that the labor problems of one employee can also confront his colleagues. The requirements put forward by the team always make the employer more impressed than the same requirements put forward by one employee.
Ps It is important for us to know how useful / useless such articles are, whether it is necessary to continue, and if necessary, what topics of labor law would be of interest to the community?
* We want to try to do a little research to understand what kind of violations IT people are most likely to experience. We plan to interview those who are somehow involved in IT and whose labor rights have been violated. Therefore, we, the trade union of IT workers , turn to the habrasociety: if you were not paid a salary, if you were illegally fired, if you received a black salary - in general, if your rights were violated in one way or another, share with us by this! It would be great if you agreed to meet in person and talk - to give a short interview. Thanks in advance!
We all work, including in order to rejoice in the transfer of wages to bank cards. And we are very upset when notifications are delayed or inform us about the arrival of the wrong amounts that we expected. Salary is perhaps the most important part of the employment relationship for the employee and, even if we are willing to tolerate violations during work or in working conditions, we usually do not want to put up with violations in wage payments.
Salary (remuneration of the employee) - remuneration for labor depending on the qualifications of the employee, complexity, quantity, quality and conditions of work performed ( Article 129 of the Labor Code of the Russian Federation ).
The employee and the employer independently agree on the amount of wages. All conditions of remuneration are fixed either in a collective agreement, or in an employment contract with a specific employee, or in local regulations of the employer. The first thing that every employee should pay attention to is that he has in his hands a document confirming the right to pay in a certain amount.
Settlement Leaflet
According to the employee’s written application, the employer is obliged, no later than three working days from the date of submission of this application, to issue the employee with copies of documents related to the work. Copies of documents related to work must be duly certified and provided to the employee free of charge. ( Article 62 of the Labor Code of the Russian Federation ).
It is recommended that you receive regular checklists, which will reflect information on wages, on accrued and actually paid insurance contributions for compulsory pension insurance, on the period of work with this employer, etc. These sheets will be a confirmation that you are officially registered and all payments are made through accounting.
Salary and bonus
There is a widespread legalized way of infringing on the rights of an employee - dividing wages into salaries and bonuses. Since bonus systems are established by collective agreements, agreements, local regulations ( Article 135 of the Labor Code of the Russian Federation ) and there are no collective agreements in most companies, the payment of the premium part is regulated exclusively by the employer.
The employer himself determines when, to whom and in what amount he will pay the bonus. As a rule, in such a scheme, the premium is a significant part of the salary, which puts the employee in a dependent position, because in case of non-payment of the bonus part, he most likely will not have the opportunity to challenge the actions of the employer. Therefore, if you agree to such conditions of remuneration, then try to clarify:
- conditions and indicators of bonuses, i.e. in what cases and for what the premium is paid;
- Does the employer have the right, when you reach the established bonus indicators, not to pay you the bonus, and if so, in limited situations or unconditionally;
- Does the organization have a bonus provision and can you get a certified copy of it;
- Does your employment contract include terms and conditions of bonuses.
This will not guarantee that you will not be deceived with the premium part. But this will bring at least some clarity. The only effective way to protect yourself in this situation is to get the employer to transfer the bonus part to salary. Otherwise, the risk of non-payment or reduction of the premium will remain. This problem could be solved if it were possible to legislatively fix the proportions between the salary and the premium in order to stop abuses by the employer in this matter. Trade unions regularly put forward this demand, but so far the question remains open.
Black salary
One can hardly say much new about the “black” wages. Everyone understands that labor relations without obligations rest solely on the honest word and decency of the parties. The main negative consequence of receiving “black” wages is that the position of the employee is completely dependent on the goodwill of the employer, and the employee is deprived of the opportunity to assert his rights using the established state remedies, since it will be extremely difficult to confirm the amount of wages established for you. In this situation, the employee at any conflict with the employer risks:
- not to receive a salary in case of any conflict with the boss;
- do not get vacation pay;
- completely lose social guarantees related to reduction, education, childbirth and other situations.
Since the reality is that today it’s not always possible to protect yourself from “black” wages, then if you get “black” wages, you must try to get evidence of what size of wages you get. As evidence, audio or video recordings, payrolls, records of telephone conversations, employment contracts of employees with previous employers, advertisements, information from statistical agencies, as well as information that other employees can give about their salaries can be used. This evidence may come in handy in court if the employer decides not to pay you wages.
Change in wage conditions
Usually, the employer changes the terms of remuneration for the worse unilaterally: either in an ultimatum form (either this, or quit), or referring to some difficulties that do not allow maintaining the previous conditions. Many workers are sure that this should be: it is unfair, of course, but if the employer has decided so ... This is a misconception that either American films or the employers themselves introduce us in the hope that you are not familiar with your rights. In fact, the employer has the opportunity to solely change the terms of remuneration for his employee is extremely limited. Let's try to figure it out.
On the one hand, all conditions of remuneration are mandatory for inclusion in an employment contract ( Article 57 of the Labor Code of the Russian Federation) and changes to the terms of the employment contract specified by the parties are allowed only by agreement of the parties to the labor contract ( Article 72 of the Labor Code of the Russian Federation ). Thus, the employer cannot single-handedly decide that this month you will receive less. He can only offer you to agree this month (or this month) to start receiving less. And, of course, you have the right to refuse by law such a tempting offer.
On the other hand, the employer has the right to change the terms of remuneration for reasons related to changes in the organizational or technological working conditions, if, however, the terms of the employment contract specified by the parties cannot be saved, their change is allowed on the initiative of the employer ( Article 74 of the Labor Code of the Russian Federation) In this case, the employer must:
- notify the employee of upcoming changes in the terms of remuneration, as well as the reasons for the need for such changes, in writing no later than two months. At the same time, find out if the employee agrees to work on new conditions.
- if the employee does not agree to continue to work, the employer is obliged to offer him in writing other work available to the employer.
- if the employer cannot offer another job, or the employee does not agree to it, then the employer can terminate the employment contract by paying the employee a severance pay.
But for changes in wage conditions, the employer must have objective reasons - a change in organizational or technological working conditions without the possibility of maintaining existing conditions. So, the fact of the merger of several departments in itself does not give the employer the right to reduce the salary of their employees, since in this situation nothing speaks of the impossibility of maintaining the previous salaries. It is also not a basis for a unilateral change of the terms and conditions of an employment contract as determined by the parties, a decision by shareholders or founders of a legal entity or a “financial crisis”.
If you have received a notification about changes in the terms of the employment contract and in particular the terms of remuneration and do not agree with them, then you should not write “agree” on the notification so that this could not subsequently be regarded as a change in the terms of remuneration by agreement of the parties. Meanwhile, it is impossible to refuse from these changes, since this can be regarded as a refusal to continue work, which is the basis for the termination of labor relations. In this case, it is recommended to write something similar on the change notification:
“I do not agree with the change in the terms of the employment contract specified by the parties. I do not refuse to continue work. I will appeal against the actions of the employer "
Then proceed to appeal against the actions of the employer.
If salary is not paid
If wages are not paid on time, then you can require the employer to pay compensation:
In case of violation by the employer of the deadline for the payment of wages, vacation pay, termination payments and (or) other payments due to the employee, the employer must pay them with interest ( art. 236 of the Labor Code of the Russian Federation ).
As shown in the “ TP for Beginners ” article , interest is an extremely small amount.
You can suspend work until the debt is paid off:
In case of delayed payment of wages for a period of more than 15 days, the employee has the right to notify the employer in writing to suspend work for the entire period until payment of the delayed amount ( Article 142 of the Labor Code of the Russian Federation ).
In this case, it is necessary to notify the employer in such a way that will fix the fact of receipt of the application: either by the signature of the employer, or with witnesses, or by registered letter with notification. In any case, it will be possible to suspend work no earlier than from the moment the employer receives the application.
Salary indexation
As the survey showed , in 50% of habrausers, wages were not indexed even once, and almost 20% were indexed less than once a year.
I was happy as a child of the recent increase in his z.p. counted, but it turned out to be quite possible that this is even a decrease in z.p. Comment on the topic " Do you get wages indexed? "
Prices for all goods and services are constantly growing. In order to ensure that the well-being of workers does not even worsen, Article 134 of the Labor Code of the Russian Federation says that the employer must increase (index) wages in connection with rising prices.
Moreover, the Federal Service for Labor and Employment (Rostrud) in a letter dated April 19, 2010 No. 1073-6-1 concluded that the law establishes an unconditional obligation for an employer, not even financed from the state or municipal budget, to index.
Often, employers do not comply with this norm, and employees simply do not know about it, so inflation is ahead of wage growth. If indexation is not carried out, then employees have the right to demand the inclusion of a clause on increasing wages by the amount of inflation in the local regulation on wages. It happens that the company does not have such an act. Then you need to demand that the employer develop it and include an indexation clause there. Lack of wage growth is a violation of the law. To eliminate it, you need to contact the prosecutor's office or the State Labor Inspectorate.
As practice shows, it is more efficient to achieve indexation not separately by each employee, but together, by the majority of employees. In addition, Rosstat underestimates inflation, so it makes sense to require indexation of wages by inflation plus an additional percentage. Ideally, it would be a collective bargaining agreement with the employer, which would prescribe the mandatory annual indexation of wages. A collective agreement, in turn, can only be concluded by a trade union, in which more than half of the workers are members.
Instead of output
We have nothing to add to the recommendations we made in the first article:
1. In any obscure [labor] situation, read the Labor Code.
You need to know and understand your rights when they are violated. As they say, whoever is warned is armed.
2. Request, collect, store documents regulating labor activity.
In this sense, the employer is in a better position: all the necessary documentation is stored from the beginning, and legally protected from any unlawful attacks by the employee :) Therefore, the workers themselves are in a vulnerable position due to lack of information and the inability to back up their position links to documents.
3. To make demands and defend their rights more effectively collectively.
As a rule, employees of one company have similar working conditions. Therefore, it is logical that the labor problems of one employee can also confront his colleagues. The requirements put forward by the team always make the employer more impressed than the same requirements put forward by one employee.
Ps It is important for us to know how useful / useless such articles are, whether it is necessary to continue, and if necessary, what topics of labor law would be of interest to the community?
* We want to try to do a little research to understand what kind of violations IT people are most likely to experience. We plan to interview those who are somehow involved in IT and whose labor rights have been violated. Therefore, we, the trade union of IT workers , turn to the habrasociety: if you were not paid a salary, if you were illegally fired, if you received a black salary - in general, if your rights were violated in one way or another, share with us by this! It would be great if you agreed to meet in person and talk - to give a short interview. Thanks in advance!