How to write a notice of hiring a former civil servant

Procedure for hiring a former civil servant

When applying for a job, a former civil servant must notify the employer about his last place of service. The same information must be reflected in his work book. We are talking about employees who filled positions listed in Decree of the President of the Russian Federation dated May 18, 2009 No. 557 “On approval of the list of positions...”.

If more than 2 years have passed since the dismissal, then the employer hires such an employee in the usual manner provided for by the Labor Code of the Russian Federation. Otherwise, the employer is additionally obliged to send a notice of hiring a former civil servant to the address of his last place of service (Article 12 of Law No. 273-FZ; Article 64.1 of the Labor Code of the Russian Federation). Such a notification must be sent if an employee is hired for a part-time job, as well as when concluding a civil law agreement (CLA) with him. A notice of hiring a former civil servant under a GPC agreement should be sent when the amount of his monthly payment exceeds 100 thousand rubles.

It is necessary to notify the government agency – the employee’s former place of duty – within 10 days from the date of signing the contract. Such a short period of time can cause problems if you need to clarify information about an employee, because... inquiries regarding previous employment may take much longer.

If an employee is hired under a GPC contract with a salary of 100 thousand rubles or more, without informing about his previous place of work, then it is advisable for the employer to request a copy of his work record book to be sure that the law will not be violated.

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A citizen who previously held positions in the state or municipal service is obliged, within two years after dismissal from the relevant service, upon concluding an employment contract (civil contract for the performance of work (rendering services) worth more than 100,000 rubles per month; hereinafter - civil contract) legal contract) provide the employer with information about your last place of employment. This conclusion follows from the provisions of Part 2 of Art. 64.1 Labor Code of the Russian Federation, part 2, art. 12 of Federal Law No. 273-FZ of December 25, 2008 (hereinafter referred to as Law No. 273-FZ).

This obligation is imposed on those former employees whose positions, in accordance with the provisions of these norms, are included in special lists established by regulatory legal acts of the Russian Federation. They should be understood as lists published in pursuance of Law N 273-FZ.

Such lists, for example, include the List approved by Decree of the President of the Russian Federation dated May 18, 2009 N 557, lists provided for by departmental regulatory legal acts, in particular Order of the FSSP of Russia dated January 26, 2018 N 38. In addition, based on the provisions of paragraph 3 of the Decree President of the Russian Federation dated May 18, 2009 N 557, the corresponding lists of positions are established at the regional and municipal levels of government and management. The above is also confirmed, in particular, by the provisions of Decree of the President of the Russian Federation of July 21, 2010 N 925.

You can familiarize yourself with the lists in reference and legal systems, on the official website of the government agency or local government body in which the former employee served. In addition, information on the inclusion of a particular position in a specific list can be obtained upon request from the relevant government agency or local government body (clause 1, clause 51 of the Methodological Recommendations on compliance with restrictions imposed on a citizen holding a position in the state or municipal service, when concluding an employment or civil contract with an organization; hereinafter referred to as Methodological Recommendations).

The employer, when concluding an employment contract with the specified citizen who filled the relevant positions, within two years after his dismissal from state or municipal service, is obliged to inform the representative of the employer (employer) at the last place of service of this person about the conclusion of the contract within 10 days (Part 3 Article 64.1 of the Labor Code of the Russian Federation, Part 4 of Article 12 of Law No. 273-FZ). This obligation arises when concluding an employment contract both at the main place of work and part-time, regardless of the amount of wages (clauses 61 - 63 of the Methodological Recommendations, clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 28, 2017 N 46). At the same time, according to the position of the Supreme Court of the Russian Federation, it is necessary to inform about the conclusion of a part-time employment contract if, at the main place of work, the former employee works for another employer, i.e. part-time work is external. Internal part-time work may not be reported (clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 28, 2017 N 46).

It is also necessary to keep in mind that the above-mentioned obligation of the employer is subject to fulfillment within two years after the dismissal of a citizen from public service, regardless of the last place of work of the former civil servant and the number of employment contracts he concluded during this period (clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 28 .2017 N 46).

The two-year period specified in Part 4 of Art. 12 of Law N 273-FZ, can also begin from the moment of transfer from a position included in the list established by regulatory legal acts of the Russian Federation (Resolution of the Supreme Court of the Russian Federation dated 06.06.2018 N 46-AD18-8).

If a civil contract for the performance of work (provision of services) was concluded with a former state or municipal employee who filled the relevant positions, it is necessary to report this to his last place of service in the following cases (Part 1, 4 of Article 12 of Law No. 273- Federal Law, clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 28, 2017 N 46):

— the cost of the work performed (services provided) under the contract exceeds 100,000 rubles. per month;

— the contract was concluded for a period of less than a month, but the cost of the work performed (services provided) exceeds 100,000 rubles.

A notification about the conclusion of a civil contract must also be sent within 10 days (Part 4, Article 12 of Law No. 273-FZ).

The period for sending a message about concluding an employment (civil law) contract is calculated in calendar days. It is counted from the day following the day of conclusion of the contract or the actual admission of the former employee to work with the knowledge or on behalf of the employer (his authorized representative). If the last day of the period coincides with a non-working day, it is postponed to the next working day (clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 28, 2017 N 46).

The message must be sent in compliance with the Rules for notification by the employer about the conclusion of an employment or civil contract for the performance of work (provision of services) with a citizen who has held positions in the state or municipal service, the list of which is established by regulatory legal acts of the Russian Federation (approved by Decree of the Government of the Russian Federation of January 21. 2015 No. 29, hereinafter referred to as Rules No. 29) (part 4 of article 12 of Law No. 273-FZ, clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 28, 2017 No. 46).

Some examples of ambiguous interpretation of Art. 19.29 of the Code of Administrative Offenses of the Russian Federation and the provisions of Law N 273-FZ, the Supreme Court of the Russian Federation considered in the Review of judicial practice in cases of bringing to administrative liability under Art. 19.29 of the Code of the Russian Federation on Administrative Offenses (approved by the Presidium of the Supreme Court of the Russian Federation on November 30, 2016).

It should be noted that the procedure for notifying the conclusion of an employment (civil law) contract with former employees in the event that the body in which they filled positions in the state (municipal) service is abolished or reorganized is not regulated by law.

According to the position of the Supreme Court of the Russian Federation, if the relevant body is reorganized or abolished, the message must be sent to the state (municipal) body performing the functions of the reorganized (abolished) body (clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 28, 2017 N 46). A similar explanation regarding government agencies is given by the Russian Ministry of Labor (Letter dated July 1, 2016 N 18-2/B-421). If the functions of a reorganized (abolished) body are distributed among several bodies, then, in the opinion of the Supreme Court of the Russian Federation, a message can be sent to any of them (clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 28, 2017 N 46). In such cases, the Russian Ministry of Labor recommends sending information to the government agency to which the functions were transferred, the implementation of which was part of the civil servant’s previous official duties (Letter dated July 1, 2016 N 18-2/B-421).

The above should be taken into account when sending a message about the conclusion of an employment (civil law) contract with former state (municipal) employees if the body in which they filled positions was abolished or reorganized.

List of positions when hiring a former civil servant

The list of Decree No. 557 includes positions of the federal state civil service: deputy ministers, chiefs, heads of departments and their deputies of the Ministry of Internal Affairs, the Ministry of Emergency Situations, the Ministry of Defense of the Russian Federation, the Courier Service of the Russian Federation, the Foreign Intelligence Service of the Russian Federation, the FSB of the Russian Federation, the Russian National Guard, the Federal Security Service of the Russian Federation, the Federal Penitentiary Service of the Russian Federation , Special Projects Service, Customs Service, Russian Prosecutor's Office, Investigative Committee. You need to work with the list very carefully: some positions coincide with those specified in the Decree, and some are not listed verbatim, but are listed in the “others” paragraph, where several positions can be generalized at once.

If a former head of a department of one of the listed services is hired, then in this case everything is clear. It is more difficult with Section III of Decree No. 557, which talks about other positions associated with corruption risks without being assigned to specific government agencies. In this case, you should use the regulatory documents of the relevant departments adopted on the basis of Decree No. 557.

For example, a company hires a former employee of the city inspectorate of the Federal Tax Service, who held the position of “state tax inspector.” In this case, you need to refer to the order of the Federal Tax Service of the Russian Federation dated September 25, 2017 No. ММВ-7-4 / [email protected] , which approved the list of positions associated with corruption risks. Because If this position is included in the departmental list, then a notice of hiring such an employee must be sent.

But employees of extra-budgetary funds are not civil servants, although certain restrictions are imposed on them in accordance with Government Resolution No. 568 dated 07/05/2013. But this document says nothing about the employer’s obligation to inform about the hiring of such persons, therefore in this case the law No. 273-FZ does not apply.

Also, employees of educational institutions (including heads - school directors, rectors of universities, etc.) are not recognized as civil servants. The only exceptions are the heads of departmental educational institutions, whose positions are listed in Decree No. 557.

Since there are many departmental lists, it is often better for the employer to play it safe and inform about the employment of a former employee of any government agency, even if there is no clear requirement for such notification in the regulations.

Why is it necessary to notify?

After the dismissal of a Russian citizen from municipal or state service, the prosecutor's office monitors his future fate for two years. This is how law enforcement officers implement the Federal Law “On Combating Corruption” No. 280-FZ, dated December 25, 2008.

The following norms oblige the former municipal or civil servant to be notified of the employment:

Art. 12 of the mentioned law;
Art. 64.1 of the Labor Code of the Russian Federation.

Read about how to refuse to hire an applicant at the link https://otdelkadrov.online/3534-prichiny-pravila-otkaza-soiskatelyu-v-prieme-na-rabotu

According to regulations, the employer has the right not to notify about the hiring of a former employee who held a position before dismissal that is not included in the list:

civil servant positions, approved by presidential decree No. 557 dated May 18, 2009;
positions of municipal employees, approved by the law of the subject of the federation.

To protect yourself from penalties for violating the law, it is recommended to draw up a notice to the employer about hiring a civil servant and send it to the place of service, no matter what position he holds.

Important: the employer must meet the 10-day deadline from the date of signing the employment contract.

The citizen himself is obliged, when applying for a job, to notify the employer that he is a former civil servant and to inform him from what position he was fired. It is enough to declare this orally, since the necessary information is contained in the work book presented to the personnel department when applying for a job.

Ignoring by the employee of this requirement in accordance with Art. 84 of the Labor Code of the Russian Federation obliges the employer who finds out the truth to immediately terminate the employment relationship on the basis of clause 11, part 1 of Article 77 of the Labor Code (failure to comply with the rules for concluding an employment contract).

Watch a video that will tell you about the restrictions when hiring a former civil servant

Sample notice for hiring a former civil servant

According to Decree of the Government of the Russian Federation dated January 21, 2015 No. 29, the notification must contain the following mandatory information:

Employee personal data:

Full name (indicating all previous full names, if any),
date and place of birth in full;

Last position held in the civil service (in accordance with the entry in the work book, if any);
Full and short name of the legal entity or individual entrepreneur;
Full details of the order, instruction or other decision of the employer, according to which the employee began to perform duties;
Details of the employment contract and type of contract - fixed-term (indicating the validity period and conditions of conclusion) or unlimited;
Full name of the position for which the employee was hired and the name of the department;
The employee's job responsibilities that he will perform in accordance with the job description.

It is best to issue the notification on the organization’s letterhead, certified by the signature of the responsible person and seal. You need to send it with a description of the attachment and a notification of receipt - these minor postal costs will help in case of disputes to confirm the fact of sending the notification.

Specifics of reception

The procedure for employing a former employee is not much different from the procedure described in the Labor Code of the Russian Federation. However, there are a number of features that employers need to take into account in order not to violate the norms established by law.

Legal regulation

The procedure for hiring a civil servant is described in detail in the Labor Code of the Russian Federation (Article 64.1). The paragraphs of this document discuss a number of features that are relevant for this category of citizens. Among them:

Employment in organizations where a former employee must perform functions similar to previous duties is permitted only with the permission of a special commission.
When hiring a municipal employee, the employer is required to notify the former manager if the employee was fired less than 2 years ago.
A citizen is obliged to independently notify the new boss that he previously held a position in government agencies

It is important to know! These requirements apply only to those citizens who held positions from the established list. Therefore, first of all, you should make sure that the employee was engaged in activities from the list.

Notification to former management

If the new employee had a position from the list provided for by regulatory documents, the employer is obliged to notify representatives of the body where the citizen was in service about the appointment. This procedure must be completed within 10 days from the date of registration of the employment contract. This is done once and exclusively in writing. The described requirement applies only if the employee left the service less than 2 years before being hired for a new position.

https://youtu.be/U8h3vVlX4Cc

The notification is issued in free form or on the company’s letterhead. The document must contain the signature of the manager or other authorized person responsible for employment in the organization. The following data is indicated:

Full name of the employee;
Date of Birth;
Previously held position (before the immediate moment of dismissal);
Business name.

Below enter the date and number of the order that served as the basis for hiring the citizen. This applies to both employment contracts and GPAs. The notice also reflects the dates of conclusion of the agreement, the name of the position held by the employee, the duties and functions performed by him.

Attention! The document should be sent to the public service authority via mail. Along with the message, an inventory of the contents and a certificate confirming delivery are also attached.

Terms of the agreement

Drawing up an employment agreement is the main procedure associated with employing citizens. The employer is required to sign this document immediately upon hiring the employee. Main conditions:

The agreement is concluded in writing in 2 or 3 copies;
The agreement is drawn up on the basis of the citizen’s passport and work book;
The employee is required to provide a document confirming his qualifications;
Some positions require medical books and sanitary passports.

The employer may also require proof of health insurance. The employee has the right not to provide any other certificates. A citizen’s responsibilities include informing a new employer about a previously held position in a state or municipal body.

Attention! The contract must indicate a list of the employee’s job functions. The payment method is also indicated. The document is signed by both parties, after which it is recognized as valid.

Recruitment procedure

The hiring procedure may vary depending on the specifics of the enterprise. The process includes several mandatory steps, the implementation of which requires adherence to the principle of consistency. Hiring takes place in the following order:

The employee fills out an application for employment (optional);
Along with the application, additional documents are submitted to management (work book, diploma, TIN, passport);
The employer draws up an agreement, which is signed by both parties;
An internal order is issued, the necessary notes are made in the work book;
The new employee is provided with the regulatory documentation of the enterprise for review;
Within ten days, the employer sends a notice of employment of the former civil servant to his previous place.

In some cases, a new employee deliberately hides his work experience. To eliminate the risk of violations, before admission you should carefully read the entries in the work book for the last 2 years. If a citizen has not reported that he was previously in the service, this is the reason for terminating the employment contract with him.

Failure to report the hiring of a former civil servant

Failure to notify a former civil servant about hiring a former civil servant is an administrative offense and is punishable by a fine under Art. 19.29 Code of Administrative Offences. The amount of the fine ranges from 20 to 50 thousand rubles. for an official and from 100 tr. up to 500 tr. to a legal entity. If the violator is an individual entrepreneur, then he is liable as an official.

According to established judicial practice, if an organization admits its guilt, then a minimum fine is usually applied to it (as for an official). Larger fines are imposed if the guilty person attempts to unreasonably challenge the violation or additional aggravating circumstances are discovered (for example, forgery of documents).

Example 1
The director of LLC "X" S. hired K., a specialist from the Federal Tax Service of the Russian Federation. The notification was sent out of time. S. admitted his guilt and explained that the reason for the violation was his ignorance of the 10-day period. The Nizhnekamsk magistrate sentenced S. to a fine under Art. 19.29 of the Code of Administrative Offenses of the Russian Federation in the amount of 20 thousand rubles.

Avoiding punishment is quite difficult; the procedure has already been worked out and is quite simple. The prosecutor's office receives data on all those fired and resigned from government agencies, and monitors data on them from the Pension Fund and the Tax Inspectorate for 2 years. Any information is a reason for request and verification. Next, all that remains is to clarify whether the notification was sent within the 10-day period.

True, if certain conditions are met, you can still try to avoid a fine. If the employer proves that the employee did not provide a work book on time and did not report his previous place of work, which resulted in an offense, sanctions may be applied to the employee - he will be dismissed under Art. 84 Labor Code of the Russian Federation.

Example 2
The LLC entered into an employment contract with A., a former auditor of the territorial department of Rosfinnadzor, hiring her to the position of chief accountant. The corresponding notification was not sent within 10 days. However, during the trial, the court found out that A. did not inform the employer about her previous place of work and did not provide a work book due to its loss. Based on this, the proceedings against the LLC were terminated due to the lack of guilt (based on materials from the Penza Regional Court).

There are also quite frequent situations when the work book contains a record of the last place of service, but the position is not indicated. In this case, the employer is unable to comply with the requirements of the law. As a rule, the prosecutor's office requires the dismissal of the employee and the presentation of an order for his dismissal. But this absolutely does not prevent the employer from hiring the former civil servant again and fulfilling all the requirements of the law by sending a notice of employment.

Notification Features

When drawing up an employment agreement with a former worker who worked for government agencies less than 2 years ago, you must send a written notification to these authorities. It is sent exactly to the body in which the employee worked. The notice must be sent in such a way as to prevent claims from arising. In particular, government agencies should not be allowed to blame the employer for the lack of notification. To do this, you need to have documents confirming dispatch and delivery.

For example, this could be a registered letter with notification. It must be sent to the exact address of the government structure.

The notification must be sent. This is due to the fact that for 2 years government agencies have the right to monitor the activities of their former employees. This is stipulated in Article 12 of the Federal Law “On Combating Corruption” No. 280. A similar rule is contained in Article 64.1 of the Labor Code of the Russian Federation. However, the employer may not send notice if the employee was employed in positions not included in this list:

Contained in Decree No. 557.
Established by the law of the federal entity in which the civil servant worked.

If the employer has doubts about the need to send a notice, it is still recommended to send a message. This will prevent the application of penalties.

IMPORTANT! The notification must be sent within 10 days from the date of signing the employment agreement.

A former civil servant also has a number of responsibilities. In particular, he must notify the employer of his past work in government agencies. He must also tell what position he worked in. No written notice is required. A verbal warning is sufficient. This feature is due to the fact that all the required information is already contained in the work book.