Probationary period for hiring: Article 70 of the Labor Code of the Russian Federation

A probationary period when hiring is a tool that will allow the employer to evaluate an employee, draw conclusions about his professional and personal characteristics, and his ability to continue working in the organization. During this period, the employee also forms an idea of the nature of the work and decides whether to continue working.

This is a common practice for large, reliable companies and is also used in smaller organizations. When assigning a trial period, it is important to know the conditions prescribed in the Labor Code.

What is a probationary period when hiring? The probationary period is usually understood as the time period during which the employer and employee look closely at each other. During this time, each party has the opportunity to terminate the employment relationship according to a simplified scheme:

without two-week work;
agreement with the trade union.

The issue of establishing a test and assessing its results is regulated by Articles 70 and 71 of the Labor Code.

Duration - maximum and minimum duration

Labor legislation and Law No. 79-FZ dated July 27, 2004 (hereinafter referred to as the Law) limit the length of probation for a new employee to the following limits:

for workers hired under an employment agreement for a period from two months to six months - no more than two weeks (Article 70 of the Labor Code, Part 6);
for other citizens – cannot exceed a 3-month period (Article 70 of the Labor Code, Part 5);
for management positions (chief executives of companies, their deputies), as well as heads of divisions, branches, chief accountants and their deputies - up to 6 months (Article 70 of the Labor Code, Part 5);
for those hired for the first time into the civil service, as well as civil service under the leadership of the President or the Government of the Russian Federation - from 1 month to a year (Part 1, Clause 1, Part 2, Article 27 of the Law);
for civil servants transferred from another government agency or citizens appointed to the civil service who previously served in the civil service - from 1 to 6 months (clauses 2-3, part 2, article 27 of the Law).

Please note that the trial period does not take into account the days the employee is actually absent from the workplace.

For example, if a newly hired employee was placed on probation for 3 months, but at that time he was absent for 3 days (on leave without pay), then the probationary period will be extended by these three days.

Features of establishing a labor test

The law clearly establishes the rules for registration, cancellation and extension of the trial period. Necessary conditions and requirements must be specified in the order if they are provided for in the contract. If there are none, then it is considered that the employee was hired without a test period. When an employee is allowed to perform his duties without a contract, the probationary period in the Labor Code is provided for by part two of Article 67. It is formalized by an additional agreement until the moment when the worker begins to perform his functions at the enterprise. There is also a separate category of persons to whom the rules do not apply.

Purpose and obligation of appointment

Almost every enterprise has a test period for those who are hired. It allows the company's management to take a closer look at the subordinate, and gives the latter time to adapt and show his best side. According to Art. 70 of the Labor Code of the Russian Federation, a probationary period is desirable to check the performer for compliance with the vacant position.

Essentially, this is the time required to make a decision on whether to extend the agreement drawn up. During this period, competent management conducts programs to quickly adapt newcomers:

seminars;
mentoring of experienced colleagues;
training in working with specialized software;
drawing up plans for quickly and effectively mastering the necessary information.

The goals of such events are:

Quick adaptation of the employee to existing conditions.
Reducing the number of mistakes that an employee can make after studying.
Achieving the required level of qualifications.
Reducing psychological stress as a result of discomfort in a new team.

At the same time as creating favorable working conditions, the company’s management is looking closely at the new employee:

evaluates the quality of performance of assigned tasks;
tests business skills;
looks at the discipline of newcomers.

It is important to know! When a young specialist does not pass the test or refuses to continue working, work is not required. There are also no compensation or severance pay.

Registration procedure

Many employers often wonder how to properly arrange a probationary period for new employees and whether it is necessary to indicate it in the work book. As for records, this is not necessary, since a person is accepted on a general basis and only the date on which he begins his duties is written.

However, the conditions of passage and the period must be specified in the contract. Usually the beginning and end of the term are marked. It can be expressed in specific numbers or in the number of months, but then the starting point is indicated. If there are special requirements that are not reflected in the job description, then they are indicated in separate clauses of the agreement or order for admission to the staff.

If, for example, a person gets a job in the sales department, then during the test he must achieve the following:

conclude several contracts with buyers;
sell goods for a certain amount;
undergo training as part of the company’s educational program;
learn to negotiate with clients.

https://youtu.be/LcdOiLHrsOo

In fact, there can be many such conditions. Any employer develops them individually for each individual position. Then people begin to work in accordance with their staffing schedule. At this stage, it is important to prove to management about your ability to perform your duties.

Prohibition on use

After signing an employment agreement, regardless of a probationary period or not, the person is subject to all provisions of legislative documents, legal acts, norms and rules. However, when concluding a contract, the verification period is not indicated for the following persons:

Minor citizens under eighteen years of age.
Pregnant women and people with children under the age of one and a half years.
People who have received an education and are employed according to their profile within one year.
Persons with a fixed-term contract of up to two months, for example, for seasonal work.
Employees transferred to a similar position from structural divisions or branches.
Specialists who, by agreement of the company management, were hired from another organization.

The list of people who are subject to such exceptions is specified in the Labor Code, federal laws and collective agreements of enterprises.

Maximum verification period

Sometimes employers, either out of reluctance to delve into the essence of regulatory documents, or out of ignorance, seek to extend the testing deadlines. They do this in order to be able to take advantage of the simplified dismissal procedure. The seventieth article of the Labor Code of the Russian Federation clearly states that this is impossible. Here are the dates for each category of employees:

Three months for those accepted on general grounds.
Six for management personnel, including chief accountants and their deputies.
From three to a year for municipal workers.
From two weeks for fixed-term contracts.

Probation periods are established for all categories of employees in accordance with federal laws.

Conditions for extending the period

The inspection period cannot exceed the maximum established by the Labor Code. Any extension is a violation. However, the law provides for moments when this is possible:

If the contract initially specifies dates that do not exceed the deadline. In this case, the employer and subordinate, by mutual agreement, extend it.
When an employee was absent during the test, for example, sick leave, child care. Using an additional agreement, the required number of days is added.

Employers have the right to make changes to the contract only in agreement with the workers.

Termination of the test before the specified date

A probationary period is given for employers to check the professionalism of employees. The reason for termination of the contract cannot be personal hostility or antipathy towards the employee. In turn, subordinates evaluate their prospects during this time. Any of the parties can act as the initiator of the termination of the employment relationship. During this period, a simplified dismissal procedure is in effect, which excludes compensation payments and working time.

It is quite easy to remove an unnecessary employee at this stage, but if he considers that his rights have been violated, he has the right to apply to the court. In such situations, employers have little protection, since the “themis of justice” often takes the side of the plaintiff. The employee will be reinstated with the same salary and original responsibilities.

Impact on wages

The law states that the contractor must not experience discrimination during the verification period. This applies to pay and working conditions. The employer is obliged to assign a salary to the employee that corresponds to the staffing table of the position. It is not uncommon for companies to want to save money on subordinates if they do not pass the test. They use completely legal schemes when they first enter into a contract with one salary, then terminate it and sign a new one with a real salary. This technique remains on the conscience of enterprise management, because it is not regulated at the legislative level in any way.

How is it processed?

To establish the test, the following procedure applies:

The process of passing the test can be established by a regulatory document of the organization, with which the employee must be familiarized before drawing up an employment contract with the obligatory affixing of a personal signature (Part 3 of Article 68 of the Labor Code).
The conditions of application and the duration of the trial period must be reflected in the employment contract (Part 1 of Article 70 of the Labor Code). If absent, the test is considered not to have been established.

A situation is allowed when an employee is allowed to work before signing an employment contract, but then the procedure for familiarizing him with the test (by signing a separate agreement) and indicating the conditions of the test subsequently in the contract must be followed. If the agreement has not been signed, then the employer does not have the right to indicate this clause in the contract.

Draw up an order for employment. Indicate the probationary period. The dates in the order must coincide with the dates under the employment agreement (part 1 of article 68, part 1 of article 70 of the Labor Code).

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.

Is payment taking place?

When hiring an employee, the employer is obliged to provide him with equal pay to other employees in similar positions. Discrimination in determining earnings is unacceptable (Articles 22 and 132 of the Labor Code), which means that during the probationary period, remuneration must be made in full. It is contrary to the law to establish a salary lower than that which will be applied in the event of successful completion of the test.

However, the employer has the opportunity to establish a bonus system based on the total length of service and work experience of employees (Articles 129 and 135 of the Labor Code), which allows the subject to limit the amount of the bonus.

Maximum duration

For ordinary employees, the probationary period cannot exceed 3 months. The longest probation period is provided for heads of various departments, company executives and civil servants. It can range from six months (Article 70 of the Labor Code of the Russian Federation) to one year.

Neglect of worker rights during and after the probationary period can result in a hefty fine and some administrative sanctions for the manager and the company.

End of term and dismissal

Upon completion of the test, one of the following decisions is made:

Passed satisfactorily and the employee continues to work at this workplace - in this case, no additional documents are drawn up, the employee continues to work in the team under the same conditions.
The employee is not satisfied with the job and resigns of his own free will - requires notification of the employer about his desire to resign three days before the date of dismissal (Part 4 of Article 71 of the Labor Code). Then an application is drawn up in free form, the contract is terminated at one’s own request (Clause 3, Part 1, Article 77 of the Labor Code) with payment of the due amounts of earnings, compensation for unused vacation for the actual number of days worked and severance pay, if provided for by local regulations.
The result is unsatisfactory, entailing termination of the employment relationship - upon completion of the probationary period with an unsatisfactory assessment, the employment contract is terminated at the request of the employer (Part 1 of Article 71 of the Labor Code). In this case, the following order should be observed:

check all documents drawn up upon hiring for the procedure for establishing the test;
obtain documentary evidence of professional unsuitability;
notify the employee in writing of your intention to terminate your employment relationship on the grounds of unsatisfactory completion of the test three days before the date of dismissal;
issue an order to terminate the employment agreement;
make an entry in the work book and T-2 card. Return the work book to the employee on the day of dismissal;
make a full settlement with the person being dismissed.

Dismissal during a probationary period of one's own free will

Documentation of successfully/unsuccessfully completed trial period

The decision on whether an employee passes the test successfully or not is made by the employer. If the decision is made that the candidate is successful for the position, no further action is taken. The person simply continues to perform his duties under the conditions specified in the employment contract; this is not formalized additionally. An employee is added to the staff automatically.

The situation will be somewhat different if the employer considers that the candidate failed the test. In this case, management has the legal right to dismiss the employee. But this decision must be supported by evidence and properly reasoned.

Evidence includes:

Characteristics of the employee, compiled by the head of the organization in writing. The document describes and lists the qualities of a person both as an individual and as an employee, and evaluates his knowledge of labor regulations. In the characterization, the manager makes a conclusion about the employee’s ability to perform professional activities. The employee must be familiarized with the characteristics, and he puts his signature under it.
Feedback on the newcomer's completion of the probationary period. The document is written by the immediate supervisor (he can be a foreman or foreman, head of a department or other management officials). The review lists observations of the candidate’s work, conclusions about the results of his work, comments and possible suggestions.
A disciplinary sanction imposed on an employee and confirmed by an appropriate order.
A report that states an inadequate level of performance, or complete failure to fulfill job duties.
A disciplinary offense confirmed by an act or a committed offense.
Explanatory notes, in which the employee sets out the reasons for the poor performance of his tasks and functions or their complete non-fulfillment.
Other protocols, notes and acts. They record violations by the employee of the terms of the employment contract, poor performance of work or complete failure to fulfill job duties.

An employee who fails the probationary period is dismissed according to a special procedure, which includes certain stages:

At the first step, according to part 1 of Art. 71 of the Labor Code, the employee is notified in writing of dismissal. The notification document is made in paper form, it indicates the grounds and reasons why the employee is dismissed from his position. Evidence of the employee's unsatisfactory performance is attached to the notice. Having received the notification, the employee is required to sign each copy, one of which remains with him, and the second is transferred to the organization. It is possible that an employee refuses to sign. In this case, an act is drawn up that records that the employer has fulfilled all legal requirements in relation to the employee.
In the second step, a dismissal order is issued. When a decision is made to remove an employee and documentary evidence of his professional inadequacy is collected, the company management issues an order according to which the employment contract is terminated. The order must be issued no more than 3 days before the expected date of dismissal.
Next comes the settlement with the employee. On the last day of the employment contract, the employee must make all due payments.
Issuance of a work book. On the last day, the person being dismissed is given a work book; this fact is recorded by the person’s signature in the account book.

Peculiarities

Hiring cannot be associated with the appointment of a test to the following persons named in Part 4 of Art. 70 TK:

a woman expecting a child or raising a child under one and a half years of age;
persons under 18 years of age;
elected to fill a competitive position;
elected to a paid elective position;
graduates of secondary educational institutions and universities entering work for the first time in the first year after graduation;
graduates of educational institutions who have entered into an employment contract with the employer where they studied;
executed under a short-term contract (for a period of up to 2 months);
employees who transferred from another organization by transfer, if the employers agreed on such a transfer;
citizens who entered the alternative civil service;
appointed to positions in the internal affairs department or civil service (in some cases).

What are the acceptable probationary conditions?

If a citizen is looking for a job in 2020, he is interested in what requirements the employer has the right to put forward when offering to pass the test. And first of all, the question arises of how long the probationary period can last.

The general rule is that an employee can be assessed for professional competence and suitability for a period of three months and no longer. But there are separate reservations for some positions. This includes:

heads and deputies of organizations;
chief accountants and their deputies;
management personnel of branches/representative offices.

How long can the test last for such categories? The law in 2019 allows that the probationary period for these positions can be up to six months. In any case, periods during which the specialist was ill or missed work for other important reasons are excluded from this time.

It is quite logical that the period for testing is limited even in the case when a fixed-term contract is signed. If the agreement is concluded for a period of up to six months, then the applicant’s competencies can be checked for no longer than two weeks. This is the maximum period that is acceptable for such a situation. The lower limit is not established by law: it can be appointed by the management of the enterprise.

Read also: Sample order to reduce staff numbers

It is important to understand that a probationary period can be valuable not only for the employer. Sometimes an employee, having got a job, feels that he really cannot handle the functions assigned to him. Then there is an opportunity to replay the situation without tolerating infringement of rights.

https://youtu.be/IX8YdZMntuw

Optimal period

Three months is the most optimal period of time for a probationary period. During this time, the candidate will demonstrate his abilities and character traits, and it will become clear to management whether the new employee will be able to fit well into the team and the work process.

More than 15% of personnel officers believe that a two-month period is sufficient to check an employee and make a decision on his enrollment in a vacant position.

The main thing for the employer is not to exceed the duration of the probationary period provided for by law (Article 70 of the Labor Code of the Russian Federation).

How long the test for a new employee will last is determined depending on the specifics of the vacant position. A welder or turner can instantly demonstrate their talents, but a manager or financier will be able to fully demonstrate their professional skills within a few months.

What is a probationary period according to the labor code?

In Russian legislation, all standards are spelled out in Article 70 of the Labor Code of the Russian Federation. There is also a definition of this term: this is a period of time that is set by the employer to assess the employee’s suitability for the position for which he is applying. At the same time, the terms and duration of the trial are specified in the employment contract itself.

Who should not be prescribed?

When drawing up an employment agreement with citizens, you need to know that the Labor Code of the Russian Federation prohibits assigning a probationary period of any duration to the following groups of individuals:

For persons who have passed a competition to fill vacant positions and have been selected based on their results. In this case, the competitive selection must comply with the procedure of the Labor Code of the Russian Federation.
For pregnant women and those females whose children are no more than 1.5 years old.
For minor citizens.
For persons who have graduated from primary, secondary and higher educational institutions with state subsidies and are hired for the first time in accordance with their existing specialization. A probationary period is prohibited provided that no more than a year has passed since the date of graduation.
For citizens elected to serve in elected positions.
For persons invited or transferred from one department or institution to another as agreed between managers.
For citizens with whom an employment contract will be concluded for a period of 2 months or less.

Before concluding a contract, be sure to make sure that the potential employee is not prohibited from scheduling a test.