Is it possible to familiarize employees with the job description not on the day of hiring, but 2-3 days later? Is it possible to record the signatures of employees in the log of familiarization with local regulations, or is it necessary to put a signature in the job description?
Despite the fact that the Labor Code of the Russian Federation does not contain any mention of a job description, it is an important document, the content of which is not only the employee’s labor function, the range of job responsibilities, the limits of responsibility, but also qualification requirements requirements for the position. As noted in the letter of Rostrud dated October 31, 2007 N 4412-6, it can be developed in the form of a local regulatory act, or can act as an annex to an employment contract concluded with a specific employee. In the latter case this job description is valid only in relation to the specific employee with whom such agreement is concluded (see also letter of Rostrud dated November 30, 2009 N 3520-6-1).
Job description as a local regulatory act
The right to adopt local acts belongs to the employer (part one of Article 8 of the Labor Code of the Russian Federation). The procedure, timing for the development and approval of such a document, as well as the procedure for making changes to the local regulatory act labor legislation not settled.
The job description, as a local normative act, applies to all employees hired for the corresponding position. According to part three of Art. 68 of the Labor Code of the Russian Federation with local regulations directly related to the employee’s work activity, the employer is obliged to familiarize the employee with signature before signing the employment contract.
The Labor Code of the Russian Federation does not establish a time limit for familiarization of already working employees with local regulations adopted by the employer. In Art. 22 of the Labor Code of the Russian Federation only states that the employer is obliged to familiarize employees, upon signature, with the adopted local regulations directly related to their work activities. Consequently, familiarization of a newly hired employee with the job description approved by the employer after his hiring can be done 2-3 days after the date of conclusion of the employment contract.
If the job description is already in force at the time the employee is hired, familiarization with it should be carried out before signing the employment contract. Failure to comply with this requirement will constitute a violation of labor laws.
The procedure for familiarizing employees with local regulations of the employer of the Labor Code of the Russian Federation has not been established. The above norms only say that familiarization is carried out against signature. Consequently, the employer can choose any method in which he will have a paper medium (possibly including a journal) with the signature of the employee, indicating that the person signing is familiar with the text of the local regulatory act. It must be taken into account that if the signature is not placed on the instruction itself, but in the relevant journals, familiarization sheets, etc., they must fully indicate the details of this job description.
Job description as an annex to the employment contract
The Labor Code of the Russian Federation does not mention the preparation of annexes to an employment contract and does not regulate the status of these documents. We believe that a job description, if it is an appendix to an employment contract, is an integral part of the employment contract; therefore, the rules on the procedure for concluding and amending an employment contract fully apply to its appendices. According to Art. 67 of the Labor Code of the Russian Federation, an employment contract is concluded in writing, is drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is given to the employee, the other is kept by the employer. The employee’s receipt of a copy of the employment contract must be confirmed by the employee’s signature on the copy of the employment contract kept by the employer.
Thus, in the case when the parties to the employment contract indicate that the job description is an annex to the employment contract, we should not talk about familiarizing the employee with the job description, but about the signing by the employee and the employer of two copies of the job description, which are part of the employment contract, and handing over one of them to the employee, along with a copy of the employment contract.
Since the labor legislation does not mention appendices to the employment contract, we will not find any regulatory justification for the need to sign a job description in the form of an appendix to the employment contract on the day the employment contract is concluded. We believe that if the text of the employment contract contains a mention that the job description is an annex to the employment contract and is an integral part of it, such job description must be signed by both parties simultaneously with the employment contract.
However, in order to make the job description part of the employment contract after its conclusion, the parties must sign the corresponding additional agreement to the employment contract in the manner prescribed by Art. 72 Labor Code of the Russian Federation. The minimum and maximum terms for concluding such an additional agreement are not established by law.
Prepared answer:
Expert of the Legal Consulting Service GARANT
Inchin Denis
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Komarova Victoria
When officially signing papers when accepting a job, you must be fully competent in the provisions of the labor legislation of the Russian Federation. Then there will be no all sorts of misunderstandings in the workplace during the performance of direct duties, unwanted proceedings, conflict situations and an ambiguous state of affairs. To do this, it is recommended that you familiarize yourself in more detail with the basic provisions of the Labor Code and the generally accepted procedure for hiring new employees. Find out what the job description and employment contract are, officially signed by the applicant for a vacant position, when applying for a job.
Developed as a normative local act, the job description represents an important standard, where:
- Contains accurate information about the employee’s job functions;
- Job responsibilities and scope of coverage of employees of the organization and other departments in the structure of organized processes are described;
- A limit of liability is established for a specific official;
- Appropriate requirements for the designated level of qualification are presented;
- General provisions for the position held, restrictions and established rules at the workplace for an instructed employee of the organization.
The document under consideration is formed in the form of a normative act, which sets out in a standard form all the requirements that are presented to specialists in accordance with their position. If this is a job description - an appendix to an employment contract, the existing provisions apply only to the person specified in the signed agreement.
When is a job description an addition to an employment contract?
To fully familiarize yourself with the official powers, to immediately know General requirements and the state of affairs, you need to familiarize yourself in advance with the already approved instructions for the vacant position. This act is approved by the management of the organization in advance. And if the job description is an appendix to an employment contract, the future employee must be familiarized with it in advance in order to fully comply with the formalities for employment in the Russian Federation. The employee being hired is introduced to it by signature, even before the employment contract is signed.
For a local act, such a document applies to all employees who occupy an approved position. This follows from general position Labor Code of the Russian Federation (Part 3, Article 68). The instructions define general form activities of the hired employee. When a specialist is hired for a new position, and job powers and responsibilities are approved after signing an employment contract, the responsible person can familiarize the employee within the next 3 days from the date of conclusion of the employment agreement.
There are many nuances regarding the fact that the job description is an annex to the employment contract and you need to not only familiarize yourself with it and sign it. In the completed journal, where records of familiarization with such acts are kept, responsible persons must indicate on paper the full details normative document. The Labor Code does not indicate the status of the job description and, if the employment contract acts as an official document, then the normative act is tied to the management of a particular organization or its substructures.
What are the requirements for filling out annexes to an employment contract: job description and its adjustment
If additions are made to the employment agreement (contract), it is necessary to adhere to similar changes to the instructions for the position held. Being part of the employment agreement, this document is drawn up in full compliance with current norms and rules, and is filled out on a standard form. They develop a job description taking into account the provisions and requirements of the Labor Code of the Russian Federation, as well as in full compliance with the standards of the ECSD (Unified Qualification Directory of Positions).
If there is a discrepancy between the data in the annex to the employment contract and the job description, correct changes may be made to the sample regulatory act. The main provisions of the employment agreement will be considered. To avoid disagreements, in cases where instructions for a certain position were developed after the signing of the employment agreement, the contract remained in force, the law requires the signing of an appropriate addition to the agreed and adjusted document.
The existing procedure for drawing up additions to labor agreement in the Russian Federation it is prescribed in Art. 72 TK. There is no specific deadline for signing additional agreements to the employment contract. Constantly adhering legislative framework To avoid conflicts and controversial situations, it is suggested that you read the job description in advance. When signing it, agree on all the details with the standard form of the employment contract.
In accordance with Art. 57 of the Labor Code of the Russian Federation, the labor function must be indicated in the employment contract.
Is it necessary in an employee’s employment contract to duplicate job responsibilities from his job description, or is it sufficient to make a reference to the job description when indicating a job function (for example, “the employee undertakes to personally perform specified work in accordance with the terms of the job description")? Is the job description a mandatory document if the employee’s job function is specified in his employment contract?
Having considered the issue, we came to the following conclusion:
If the employment contract contains an indication that the employee’s job responsibilities are defined in the job description, then the content of the job description in terms of the range of job responsibilities is not required to be duplicated in the employment contract. When listing job responsibilities directly in an employment contract, it is not necessary to have a separate job description for the corresponding position.
(labor function) in the employment contract
Job responsibilities are a set of employee actions aimed at achieving the goals of the management system and mandatory for implementation. They are established by job descriptions, regulations or charters of organizations, internal rules labor regulations. Conditions containing the name of the labor function are mandatory for inclusion in the employment contract. Our article will talk about this.
The labor duty of employees is a measure of necessary behavior that is required by the employer from the employee. When concluding an employment contract, the employee undertakes to perform two types of duties, these are:
1. General labor duties relating to all employees, as defined in Article 21 Labor Code Russian Federation(hereinafter referred to as the Labor Code of the Russian Federation). We note that according to this article, the employee is obliged to:
– conscientiously fulfill his labor duties assigned to him by the employment contract;
– comply with internal labor regulations;
– maintain labor discipline;
- fulfill established standards labor;
– comply with labor protection and occupational safety requirements;
– treat with care the property of the employer (including the property of third parties located at the employer, if the employer is responsible for the safety of this property) and other employees;
– immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the employer’s property (including the property of third parties located at the employer, if the employer is responsible for the safety of this property).
By agreement of the parties, the employment contract may also include the rights and obligations of the employee and employer established by labor legislation and other regulatory legal acts containing standards labor law, local regulations, as well as the rights and obligations of the employee and employer arising from the terms of the collective agreement and agreements. Failure to include any of the specified rights and (or) obligations of the employee and employer in the employment contract cannot be considered as a refusal to exercise these rights or fulfill these obligations (Article 57 of the Labor Code of the Russian Federation).
Thus, the labor rights and obligations of the employee established by the current labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as those arising from the terms of the collective agreement, agreements are mandatory for execution by the employee, regardless of whether they are included in the text of the employment contract or not.
2. Specific job responsibilities of an employee to work in a certain position, specialty, profession for a given employer.
According to Article 57 of the Labor Code of the Russian Federation, mandatory for inclusion in an employment contract, among other things, is the name of the labor function (work according to the position in accordance with staffing table, profession, specialty indicating qualifications; specific type of work assigned to the employee).
If, in accordance with the Labor Code of the Russian Federation, other federal laws, the performance of work in certain positions, professions, specialties is associated with the provision of compensation and benefits or the presence of restrictions, then the names of these positions, professions or specialties and the qualification requirements for them must correspond to the names and requirements specified in qualification reference books approved in the manner established by Decree of the Government of the Russian Federation dated October 31, 2002 No. 787 “On the procedure for approving a single tariff qualification directory works and professions of workers, a unified qualification reference book for positions of managers, specialists and employees" or the relevant provisions of professional standards.
The procedure for applying the unified qualification directory for positions of managers, specialists and employees was approved by Resolution of the Ministry of Labor of Russia dated February 9, 2004 No. 9 “On approval of the procedure for applying the unified qualification directory for positions of managers, specialists and employees.
Note that the main legal act defining the specific job responsibilities of an employee is the job description.
Job descriptions can be developed both at the design stage of an organization, business, and in an already functioning business with established labor relations. In any case, the procedure for developing job descriptions presupposes a generally accepted algorithm of actions.
The process of developing job descriptions can be represented in the form of sequential stages:
1. Preparatory stage;
2. Development of a draft job description;
3. Coordination of the draft job description;
4. Approval of job description.
The development of job descriptions is preceded by the study of all regulatory documents regulating the procedure officials and rules for the development and storage of these organizational and legal documents.
The basis for developing the content of job descriptions are:
1. Qualification reference book for positions of managers, specialists and other employees, approved by Resolution of the Ministry of Labor of Russia dated August 21, 1998 No. 37 “On approval of the qualification directory for positions of managers, specialists and other employees.” This guide contains two sections. The first section provides qualification characteristics industry-wide positions of managers, specialists and other employees (technical performers), widespread in enterprises, institutions and organizations, primarily in production sectors of the economy, including those receiving budgetary funding. The second section contains the qualification characteristics of positions of employees employed in research institutions, design, technological, design and survey organizations, as well as editorial and publishing departments.
2. Issues of the Unified Tariff and Qualification Directory of Works and Professions of Workers (UTKS) for various sectors of the economy, approved by the Ministry of Labor of Russia (for example, Resolution of the Ministry of Labor of Russia dated March 5, 2004 No. 32 “On approval of the Unified Tariff and Qualification Directory of Works and Professions of Workers, issue 48, section "General professions in the production of food products"; Resolution of the Ministry of Labor of the Russian Federation dated July 3, 2002 No. 47 "On approval of the Unified Tariff and Qualification Directory of Work and Professions of Workers, issue 46, section" Clothing industry"). They contain tariff-qualifying characteristics that should be used when pricing work and assigning qualification categories workers in organizations, regardless of their form of ownership and organizational and legal forms. The tariff and qualification characteristics of each profession have two sections:
– the section “Characteristics of work” contains a description of the work that the worker must be able to perform.
– the section “Must know” contains the basic requirements for the worker in relation to special knowledge, as well as knowledge of regulations, instructions and other guidance materials, methods and means that the worker must use.
3. All-Russian classifier of occupations (OK 010-93), approved by Decree of the State Standard of the Russian Federation dated December 30, 1993 No. 298. This document is a systematic list of types labor activity. It accepts the following enlarged groups:
– Heads (representatives) of government and management bodies at all levels, including heads of institutions, organizations and enterprises.
– Specialists top level qualifications.
– Mid-level specialists.
– Employees involved in the preparation of information, documentation, accounting and maintenance.
– Workers in the service sector, housing and communal services, trade and related activities.
– Qualified workers in agriculture, forestry, hunting, fish farming and fishing.
– Skilled workers large and small industrial enterprises, arts and crafts, construction, transport, communications, geology and subsoil exploration.
– Operators, machine operators, installation and machine operators and assembly mechanics.
– Unskilled workers.
As signs for determining the commonality (similarity) of work and the grouping of occupations, the characteristics of occupations are taken: the content of functions (work performed), objects and tools of labor, the scale and complexity of management, the final results of labor activity, etc., which determine the qualifications and specialization of workers.
Please note that from July 1, 2015, this document loses force due to the publication of Rosstandart Order No. 2020-st dated December 12, 2014, which approved the new All-Russian Classification of Occupations OK 010-2014 (MSKZ-08).
4. Professional standards (for example, Order of the Ministry of Labor of Russia dated October 22, 2013 No. 571n “On approval of the professional standard “Specialist in social work", Order of the Ministry of Labor of Russia dated May 19, 2014 No. 315n "On approval of the professional standard "Radio Electronics Engineer"). They contain: a description of the labor functions included in professional standard(functional map of the form professional activity); characteristics of generalized labor functions.
Based on the practice of organizations, draft job descriptions can be developed by the following persons:
HR specialist or HR department specialist;
the head of the relevant structural unit;
by the employee himself together with his immediate supervisor.
The employer decides independently who to assign the responsibility for developing job descriptions - to a group of employees or to a specific employee.
The structure and content of a job description is currently not regulated in detail by regulations, which allows it to be created taking into account the specifics of the work organization of a particular employer.
An employee’s responsibilities for his position, specialty, or profession can also be specified in other documents, for example, in an employment contract. That is, any of the documents (employment contract, job description) can determine (clarify) the specifics of job responsibilities in relation to working conditions of this employee at a specific employer.
In order for job duties to become mandatory, the following conditions must be met:
1) the employee’s labor duties must be documented;
2) the employee must know about his labor functions, that is, he must be familiarized with them against signature. Moreover, according to Article 22 of the Labor Code of the Russian Federation, it is the employer who is obliged to familiarize employees, against signature, with the adopted local regulations directly related to their work activities.
Let us note that job responsibilities determine not only the scope and limits of practical performance of the functions and tasks assigned to the employee, according to his position, but also the limits of responsibility to the employer.
Let's consider the main types of liability that are provided for by law for non-fulfillment or improper execution employee of his official duties (job functions).
Responsibility for non-fulfillment
job responsibilities
Article 192 of the Labor Code of the Russian Federation establishes that for committing a disciplinary offense, that is, failure or improper fulfillment by an employee through his fault of the duties assigned to him labor responsibilities, the employer has the right to apply disciplinary sanctions. This article provides for the following disciplinary measures:
– remark;
– reprimand;
– dismissal for appropriate reasons.
Federal laws, charters and regulations on discipline (Part 5 of Article 189 of the Labor Code of the Russian Federation) may also provide for other disciplinary sanctions for certain categories of employees. For example, Federal law dated January 17, 1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation", namely Article 41.7, in addition to the general penalties applied to employees, additional penalties are provided, among other things, such as a warning about incomplete official compliance, a reduction in class rank.
According to Article 192 of the Labor Code of the Russian Federation to disciplinary sanctions, in particular, applies to the dismissal of an employee on the grounds provided for in paragraphs 5, 6, 9 or 10 of part one of Article 81, paragraph 1 of Article 336 or Article 348.11 of the Labor Code of the Russian Federation, as well as paragraph 7, 7.1 or 8 of part 1 of Article 81 of the Labor Code of the Russian Federation in cases when guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee at the place of work and in connection with the performance of his job duties.
Paragraph 35 of the Plenum resolution Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2) provides clarifications on what relates to failure to fulfill labor duties without good reasons.
Such violations, in particular, include:
a) the absence of an employee from work or the workplace without good reason.
It is necessary to keep in mind that if in the employment contract concluded with the employee, or local normative act employer (order, schedule, etc.) does not stipulate specific workplace this employee, then if a dispute arises over the issue of where the employee is obliged to be when performing his work duties, one should proceed from the fact that by virtue of Part 6 of Article 209 of the Labor Code of the Russian Federation, a workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;
b) refusal of an employee to perform job duties without good reason due to a change in in the prescribed manner labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to perform the labor function defined by this agreement, to comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation).
It should be borne in mind that refusal to continue work due to a change determined by the parties terms of the employment contract is not a violation labor discipline, but serves as the basis for termination of an employment contract under clause 7 of part 1 of Article 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Article 74 of the Labor Code of the Russian Federation.
c) refusal or avoidance without good reason from medical examination workers of certain professions, as well as the employee’s refusal to undergo work time special training and passing exams on labor protection, safety regulations and operating rules, if this is prerequisite permission to work.
According to paragraph 36 of the resolution of the Plenum of the Armed Forces of the Russian Federation No. 2, a violation of labor discipline should also be considered a refusal by an employee, without good reason, to conclude an agreement on full financial liability for the safety of material assets, if the performance of duties to maintain material assets constitutes the employee’s main job function. Such a refusal is recognized as a failure to fulfill labor duties if the employee, when hired, was informed by the employer about the main job function of servicing material assets and, in accordance with current legislation, an agreement on full financial liability can be concluded with him.
An employee may be subject to disciplinary liability for failure to perform or improper performance of any of his job duties - both those established by labor legislation and other regulatory legal acts containing labor law norms, as well as an employment contract and local regulations.
Moreover, if failure to perform or improper performance of official duties by an employee led to direct actual damage to the employer and a cause-and-effect relationship is established between the employee’s actions in the performance of his official duties and the damage caused, then the employee may also be held liable. Let us remind you that direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make expenses or unnecessary payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties. This is indicated by Article 238 of the Labor Code of the Russian Federation.
At the same time, the employer can bring the employee to disciplinary and financial liability independently.
It should be said that based on the nature of the failure to fulfill official duties and the consequences to which it led, the employee may be brought to administrative and criminal liability. In this case, the employer, for example, can initiate prosecution of the employee through the relevant law enforcement agencies.
In addition, financial sanctions may be applied to the employee, but only in case of unsatisfactory results of their work, which are provided for in Article 155 of the Labor Code of the Russian Federation, which establishes that in case of failure to comply with labor standards, failure to fulfill labor (official) duties due to the fault of the employee, payment of the standardized part wages is carried out in accordance with the volume of work performed.
Let us note that failure by an employee to fulfill official duties includes, in particular, violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, and orders of the manager.
It is in the job description that it is possible to establish in detail not only the employee’s job responsibilities, but also to specifically describe the concept of failure to fulfill official duties.
Please note that the list of duties prescribed in the job description must contain only those that are directly related to labor relations, and therefore cannot be considered a failure to fulfill official duties, for example, an employee’s refusal to carry out a public order or violation of public order at the place of work.