Reduction of staff during the period of reorganization (Eremin V.S.)

What is this change?

Reorganization in the form of affiliation is a complex legal procedure that results in the merger of two or more organizations. In this process, some legal entities can be liquidated and new ones created.

At the same time, the subjects who receive certain rights and responsibilities change.

The legal successor receives all rights to property and monetary resources.

The reorganization is regulated by several legislative acts of the Russian Federation, including laws on LLCs, the Civil Code, and the Labor Code.

It is noteworthy that only firms with the same organizational and legal form can participate in the merger.

As a rule, reorganization inevitably affects the interests of the company's employees. Once this process is completed, their terms of employment and employment contract may change.

Where does the reduction occur during reorganization in the form of affiliation? In an acquired institution, often in a company that merges with another organization, there is a need to reduce the number or staff of employees.

This is not a rare practice when a newly created institution provides far fewer vacancies than there are workers themselves. Thus, part of the personnel of the acquired enterprise is subject to layoffs.

Important . No form of company reorganization is considered a valid reason for terminating employees. Dismissal is possible only on the personal initiative of an employee who is not satisfied with the new conditions. This norm is enshrined in Article 75 of the Labor Code of the Russian Federation.

If the employment relationship with the employee continues after the reorganization, he automatically becomes an employee of the new successor company - there is no need to dismiss such a person with documentation and then re-employ him.

Labor and civil law in case of layoffs during company reorganization in the form of merger

Making a decision on reorganization by the founder. If the founder is a sole founder, the document will be called a decision; if there is more than one founder, a general meeting of founders is convened, the decision is drawn up in the form of a protocol. The decision determines the procedure, timing, organizational measures and responsible officials.
Informing the registration authority about the ongoing reorganization in order to make a corresponding note in the Unified State Register of Legal Entities. This must be done within 3 working days from the moment the decision on reorganization is made. The form is available in the appendix to the Law on State Registration of Legal Entities or here https://www.nalog.ru/rn77/related_activities/registration_ip_yl/reg_yl/reorganization/.
Posting information about the reorganization in the relevant state journal on state registration on the website https://www.vestnik-gosreg.ru/.
For companies occupying more than 35% of the market, or if the amount of assets exceeds 7 billion rubles, it is necessary to obtain the consent of the antimonopoly service, details in Article 28 of the Law on Protection of Competition.
Sending notification letters to counterparties: creditors and debtors about the ongoing reorganization, indicating the deadline for submitting financial claims and information about the legal successor.
A written order from management approving reorganization measures with reference to the decisions of the founders, carried out by the legal department, accounting and human resources department. Special attention is paid to the development of reduction measures; details are in the second section of the article.
Drawing up a transfer deed in accordance with the Civil Code of the Russian Federation, the law on accounting and the relevant guidelines of the Ministry of Finance. Although upon merger, drawing up a transfer act is not required by law, since the assets and liabilities of the acquired organization are transferred to the legal successor in full, it makes sense for the latter to require its execution to prevent future disagreements.
Development and subsequent approval of an agreement on the merger of the reorganized enterprise with the legal successor.
Settlements with employees, creditors, budget, closing accounts.
Submitting an application to the registration authority with an agreement of adhesion.

In accordance with the Civil Code of the Russian Federation, reorganization has several forms: accession, merger, division, separation and transformation. This procedure is carried out at the initiative of the enterprise in accordance with the decision of the founders or executive body, in accordance with the constituent documents of the organization, or compulsorily in accordance with the decision of the court or other supervisory authorities, for example, the antimonopoly committee.

Reduction during reorganization in the form of merger

If a layoff is imminent, the employer must do the following:

Inform employees about the reorganization of the company at least 2 months in writing, indicating in the message all changes in the terms of the contract and work.
Warn the staff in writing about the layoff (in accordance with Article 180 of the Labor Code).
Report your actions to the employment service and the trade union - if there is a massive reduction, this must be done at least 3 months before the layoffs. In other cases - 2 months.
Offer employees who are subject to layoffs other available vacancies at the new enterprise, if any. These may be positions of lower salary and qualifications.
If the worker refuses the offered vacancies or there are no vacancies, the worker is dismissed at the moment when the reorganization occurs.
An appropriate dismissal order is drawn up.
On the day of dismissal, employees are issued a work book and a certificate of income for the last 2 years.
A full calculation and issuance of severance pay and other payments provided for by the Labor Code, including Article 178 of this code, is carried out.

Reduction during reorganization

Once the decision to reorganize has been made, provide notice to your employees. This is not mandatory, but it is necessary for employees to familiarize themselves with the new working conditions .

Those who do not agree with them are subject to dismissal; you will have time to make a corresponding entry in the work book for everyone.

After this, you need to write an order to reduce staff.

It provides a reference to the specific meeting of the board of directors or other governing body where the decision to reorganize was made.

After this, it is indicated which positions and in what quantity are subject to reduction. A person responsible for all this is appointed and a commission is assembled to monitor the progress of the reductions.

The head of the commission is obliged to draw up and send notices of layoffs to employees . Each notice must contain the employee’s first and last name, as well as a link to Article 81 of the Labor Code.

The notice also includes the date of dismissal and a short reminder about the employee’s right to register with the labor exchange or move to another position in the same company.

At the same time, it is necessary to provide employees with other employment options, even if they are less paid.

Notification of upcoming layoffs is sent to employees 2 months in advance . From the moment the employee signs the notice, he has the right to register with the state employment service.

Sample notice of layoff of employee during reorganization.

Also, from this moment on, he officially applies for benefits and subsidies provided by law.

Personnel changes recorded in the reduction order are reflected in the staffing table. This is not a mandatory document, but company owners create it for more transparent reporting. In this case, priority in legal force belongs to the employment contract.

Documents that are required to carry out a reduction in numbers or staff : an order, notifications (to employees and to the regional employment service), a certificate of income of the employee.

If the employee does not want to sign the notice of staff reduction during reorganization, you should find two witnesses to the delivery of the notice and draw up a special act stating that the employee was notified. The act is then attached to the reduction order.

List of documents for staff reduction during reorganization in the form of affiliation

Reduction in any case requires extensive and detailed documentation. If at least one of the necessary papers is missing, the employee can protest the dismissal at any time.

It is worth noting that in all documents that are drawn up in connection with a reduction in staff or headcount, the employer must indicate the date - it must accurately determine the day the reorganization begins.

It is necessary to prepare the following documents:

The decision on reorganization by merger, adopted at the general meeting of the directorate of the enterprise. This document indicates the reasons for the reorganization, terms, conditions, and names the persons responsible for the new company after the reorganization.
Reduction order. It must indicate the reasons, information about the positions or employees who will be laid off, and also indicate the persons responsible for carrying out the procedure.

Order on the creation of an appropriate commission.
It must consist of several employees - the list of persons is indicated in the document.
The main tasks of the commission are prescribed - first of all, it is control over the legality of the reduction.
New staffing table, taking into account the reduction. The schedule must be approved by an order to reduce staff or numbers.
Notification to each employee about the layoff in 2 copies with their mandatory signature - one copy of the notification remains with the employee, the other is stored in the personnel department. If the employee does not want to sign, an act is drawn up with the signature of at least 2 witnesses who will confirm that the person is familiar with the upcoming changes. The notice indicates the period that personnel have left to work at the enterprise.
The trade union body, if there is one at the company, is also A notice is issued with the relevant information. The head of the trade union body leaves his signature on the document.
A notification letter to the employment center indicating plans to reduce staff. This information must be in the institution 3 months before the layoff.
An act with a proposal to transfer to other vacancies that exist at the enterprise. Acts are drawn up several times from the moment of notification of layoffs. The first document is drawn up at the time of notification of the reduction. A month later, a similar act is created. On the penultimate working day, the employee is given the third document with vacancies.
An order to dismiss at the employee's own request. Issued if a person has not agreed to any of the proposed vacancies. The employee must confirm the resignation of positions in writing.
A protocol on the commission’s decision, which confirms that the employer’s actions to reduce the number of employees are lawful. Each member of the commission must leave his/her signature on the document.

Each of the listed documents is considered evidence of the legality of the employer’s actions. Their list is enshrined in the Labor Code and other legislative acts of the Russian Federation.

In the case of any government inspections and commissions, it is important that all necessary documentation is available at the enterprise.

How does staff reduction occur during enterprise reorganization?

22.05.2021

In the course of the activity of an enterprise or institution, the need may arise to carry out reorganization measures.

Article 75 of the Labor Code of the Russian Federation prohibits specifying the fact of reorganization as a basis for dismissal; however, when optimizing production or management, cases of reduction in numbers or staff are possible.

To reduce the number of employees during reorganization in the form of affiliation, it is necessary to comply with the notification procedure, as well as take into account the right of priority to preserve the workplace.

Order of reduction

Any form of reduction implies adherence to the norms of the Labor Code of the Russian Federation in terms of providing guarantees to employees. This also applies to cases of reorganization, which can take place in the form of a merger, by accession, or according to other procedures provided for by the Civil Code of the Russian Federation. The administration of the reorganized enterprise must take into account the following nuances:

an employment contract with employees cannot be terminated only due to reorganization measures - if the staff structure and number of personnel does not change, each employee will continue to work under the same conditions;
if the new organization has a significantly smaller number of personnel, or a number of positions are being reduced, management must determine who will be fired and who will retain their job - for this, the norms of Article 179 of the Labor Code of the Russian Federation are taken into account;
Each employee who is subject to layoffs must be notified in writing no later than 2 months before the date of termination of the employment contract.

The staffing structure for a new enterprise is approved by management or higher management bodies. For example, during a reorganization in a budget institution, a reduction may be caused by a decrease in funding, optimization of the structure, or other circumstances.

If there is an objective possibility, the employer must not only preserve jobs for each specialist, but also offer other employment options. To do this, they may offer jobs in other departments, other positions, including those with lower pay.

Refusal to provide other jobs is illegal and can be challenged by the employee through the labor inspectorate, the prosecutor's office, or in court.

If the employee agrees to the transfer, the employment contract is changed - for this, the parties draw up an additional agreement.

Preparation of documents and payments upon reduction

If maintaining a similar job or transferring to another job is impossible, the company must properly formalize the layoff procedure. In order for the reduction to be recognized as legal, the administration must perform the following actions:

no later than two months before the date of the proposed layoff, provide written notices to each employee. Example notification:

Sample notice of dismissal due to reorganization

in case of mass layoffs, a notification must be sent to the local employment department;
take into account the rights of preferential retention at work, as well as exclude pregnant women from the list of laid-off specialists (they can be dismissed only upon complete liquidation of the enterprise);
correctly calculate all payments guaranteed to laid-off employees - severance pay, full payment of wages and vacation pay, other types of compensation;
after two months, an order must be issued and its contents must be familiarized to each employee against signature;

Sample order of dismissal during reorganization

no later than the last day of work, you must issue a work book with a record of termination of the employment contract due to redundancy and make a full payment. Sample entry in the work book about dismissal during reorganization

When determining preferential rights to keep a job, it is necessary to take into account that the dismissal of pregnant employees is prohibited by law. To respect their rights, management is obliged to maintain their current job or offer another employment option at the enterprise. After leaving maternity leave, reduction is allowed according to the general rules, i.e. with two months notice.

The following categories of citizens have preferential rights to provide employment:

employees with higher qualifications and performance indicators;
citizens with family obligations, if they are dependent on two or more disabled children or other family members;
employees who have no other employed persons in their family;
citizens who received injury or illness during production activities at this enterprise;
disabled people of WWII or other combat operations;
specialists aimed at improving their qualifications on the job.

The company’s internal documents may also approve other categories of persons who have priority in maintaining employment. Refusal to exercise the pre-emptive right is illegal. An employee who has been refused to keep his job or be transferred to another place may file a complaint with the labor inspectorate, the prosecutor's office or the courts.

When documenting, it is necessary to issue an order in relation to each specialist being laid off. Each employee will become familiar with the contents of the order upon signature, and a possible refusal will be confirmed by a commission act. An entry is made in the work book according to clause.

2 hours 1 tbsp. 81 of the Labor Code of the Russian Federation, and also indicate the details of the order of dismissal due to reduction. The work book must be issued no later than the last day of work, and each dismissed citizen must sign that he has read all the entries in the specified document.

During the reduction process, each employee must receive full payment with severance pay.

To calculate severance pay, the employee’s average earnings are taken into account, and its amount can be increased by the employer’s decision.

When a structural unit or department is reduced with the transfer of specialists to another place of work, payments to employees do not include severance pay, since the employment contract is not terminated.

How does staff reduction occur during enterprise reorganization? Link to main publication

Source: https://u-volnenie.ru/posts/po-iniciative-rabotodatelya/sokrashhenie-pri-reorganizacii

Category of employees who cannot be fired

Whatever the circumstances at the company, the law of the Russian Federation provides for a list of employees who cannot be fired or made redundant. The list of such persons is enshrined in Article 261 of the Labor Code.

This includes workers who:

are on vacation;
are in the status of temporary disability;
pregnant women;
women on maternity leave;
women who are raising children under 3 years of age (or up to 6 years of age if a medical professional has confirmed that the child needs home care);
single mothers or fathers raising a child under 14 years of age;
parent of a disabled child under 18 years of age;
trade union members;
under 18 years of age - they cannot be dismissed without the consent of the local commission on minors.

What circumstances push management to reorganize the enterprise?

It must be remembered that reorganization is a complex process of creating or liquidating legal entities in order to optimize business activities. The algorithm of actions is selected individually by management and lawyers accompanying the procedure. Let us note the main reasons that lead to such changes:

Unprofitability and unprofitability of business activities;
The desire to optimize the enterprise tax deduction system;
Establishing mutually beneficial relationships with counterparties.

The decision to reorganize the enterprise must be made by management at a specially organized meeting.

Guarantees for employees

Article 179 of the Labor Code states that during a period of layoffs, employees with higher qualifications and labor productivity have a priority right to retain their jobs.

Personnel who are nevertheless included in the layoff list are entitled to payments from the employer:

salary for hours worked;
compensation for unused vacation;
bonuses based on the interest rate according to the employment agreement;
severance pay in the amount of one salary per month;
the employee retains the average salary for the duration of employment, but no more than 2 months from the date of dismissal;
other payments provided for in the contract.

Employer's liability for violation of Labor Code

If an employee’s labor rights are violated, he will be able to complain against his employer to the regulatory authorities at any time. This may be the prosecutor's office or the state labor inspectorate.

The hirer often faces administrative liability. This issue is regulated by Article 5 of the Labor Code of the Russian Federation.

The following types of punishment are provided:

fine from 1,000 to 50,000 rubles;
suspension of the enterprise for 90 days;
monetary compensation to the employee from the company in the amount of his lost wages.

So, reduction of personnel during the reorganization of a company in the form of an affiliation is a complex, legally sensitive procedure that requires great care from the employer. In order not to violate labor laws, you should carefully consider the choice of persons for dismissal and correctly prepare all documents.

Reorganization of two institutions in the form of affiliation

When reorganizing two institutions in the form of affiliation, there will be two chief accountants and two deputies for general issues. At the initial stage of the reorganization, the founder of the institutions did not issue an order to reduce duplicate positions in the joining organization by the time the reorganization was completed. Currently, the tax authority is carrying out the procedure for registering the reorganization of institutions in the form of merger. It is necessary to reduce duplicate positions in the acquired organization after the reorganization. Please give an answer about the preparation of the staffing table - or add two positions of chief accountant and two positions of deputy to the new staffing table of the acquired organization. And then issue an order to reduce duplicate positions and carry out the reduction and dismissal procedure. Or reflect one position in the staffing table and issue an order to reduce duplicate positions.

With regard to deputies, the issue is resolved by you independently - if both deputies perform the same functions, then it is more expedient to dismiss one of them (or transfer) until the end of the reorganization.