Peculiarities of labor regulation for workers who are foreign citizens. Peculiarities of labor regulation for foreign workers

Labor Code supplemented with a new chapter. 50.1. It is dedicated to the features labor relations on the territory Russian Federation With foreign citizens and stateless persons. In the article we will tell you what you now need to pay attention to when concluding employment contracts with this category of workers.

Amendments to the Labor Code were introduced by Federal Law dated December 1, 2014 N 409-FZ. It came into force on December 13, 2014.

Despite the fact that now labor relations on the territory of the Russian Federation with all categories of workers are regulated by a single normative act, in relation to foreign workers, certain features and restrictions have been established.

Minimum age of foreign worker

Foreign citizens have the right to enter into labor relations on the territory of the Russian Federation upon reaching 18 years of age (Part 3 of Article 327.1 of the Labor Code of the Russian Federation): documents giving the right to work in Russia (work permit and patent) are issued to foreigners if they already turned 18 years old (clause 4 of article 13 and clause 1 of article 13.3 Federal Law dated July 25, 2002 N 115-FZ, hereinafter referred to as Law N 115-FZ).

The right to give a job to a foreigner

Not all employers have the right to enter into employment contracts with foreign workers.

Employers who are expressly prohibited from doing so by law (part 4 of article 327.1 of the Labor Code of the Russian Federation) cannot hire foreigners. For example, an employer does not have the right to attract foreign workers as highly qualified specialists to provide sales services to customers in the retail trade of consumer goods (including pharmaceutical goods). An exception is provided only for employees who manage and coordinate activities related to trade (clause 1.3 of Article 13.2 of Law No. 115-FZ).

Documents for hiring

When applying for a job, a foreign worker must submit both general and specific documents for all categories of workers.

General list of documents

Like any employee, a foreigner must present to the employer the documents specified in Part 1 of Art. 65 Labor Code:

Passport or other identification document;

Work book (except for cases when an employment contract is concluded for the first time or an employee starts working on a part-time basis);

Insurance certificate of compulsory pension insurance of the Russian Federation (SNILS);

Document on education (qualifications or special knowledge), if required by the job;

A certificate confirming the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution on rehabilitative grounds, if required this type labor activity. For example, to pedagogical activity Persons who have or have had a criminal record or have been subject to criminal prosecution are not admitted.

Note. The form and procedure for issuing a certificate are provided for by the Administrative Regulations of the Ministry of Internal Affairs of Russia, approved by Order of the Ministry of Internal Affairs of Russia dated November 7, 2011 N 1121.

Upon conclusion employment contract for the first time work book and the insurance certificate of compulsory pension insurance for a foreign worker is issued by the employer (Part 4).

Specific documents from a foreigner

In addition to the documents listed above, when concluding an employment contract, a foreign worker must present to the employer the documents specified in Part 1 of Art. 327.3 of the Labor Code.

VHI contract or policy. A VHI agreement (policy) valid on the territory of the Russian Federation must be submitted when concluding an employment contract temporarily staying foreigner. A foreign employee may not submit such an agreement (policy) if the employer enters into an agreement with a medical organization, on the basis of which this employee will be provided with a minimum of:

Primary health care;

Emergency specialized medical care.

Work permit or patent. One of these documents must be submitted when concluding an employment contract temporarily staying foreigner.

Note. To control the migration status of a temporarily staying foreigner and the purpose of his visit to the Russian Federation for employment, the employer has the right to ask him to present a migration card.

Please note: a foreign worker has the right to present a work permit to the employer even after the parties have concluded an employment contract (Part 2 of Article 327.3 of the Labor Code of the Russian Federation).

For example, an employment contract, along with other documents, must be submitted by the employer to the Federal Migration Service of Russia in order to issue a work permit to a highly qualified specialist (clause 6 of Article 13.2 of Law No. 115-FZ). In this situation, the employment contract comes into force no earlier than the day the foreign citizen receives a work permit.

Information about the received work permit is entered into the employment contract in the manner prescribed by Part 3 of Art. 57 Labor Code.

Note. Work permit requiring a visa, and other categories of foreign citizens in cases provided for by Law No. 115-FZ, for temporary employment in the territory of Russia.

Patent - a document confirming the right of a foreign citizen who arrived in the Russian Federation in the manner visa-free(except individual categories foreign citizens in cases provided for by Law No. 115-FZ) for temporary employment on the territory of a constituent entity of the Russian Federation.

Constantly And temporary residents in the Russian Federation foreign citizens, refugees and persons who have received temporary shelter on the territory of the Russian Federation, as well as other categories of foreign citizens listed in paragraphs. 1 - 12 p. 4 tbsp. 13 of Law N 115-FZ, are not required to submit a work permit or patent. They do not require these documents to work in the Russian Federation.

Temporary residence permit in the Russian Federation must provide upon concluding an employment contract temporary resident a foreigner in Russia.

Position of Rostrud: the length of stay in Russia does not affect the term of the contract

From the Letter of Rostrud dated October 23, 2013 N PG/9509-6-1, it follows that the current legislation does not oblige the employer to enter into foreign worker namely, a fixed-term employment contract - for the duration of his work permit. An employment contract with a foreign worker temporarily staying in the Russian Federation can be concluded for an indefinite period. Now this point of view is enshrined in law.

Foreign citizens coming to our country have the right to employment if it is carried out in accordance with Russian legislation. In 2014, Chapter 50.1 was introduced into the Labor Code, regulating the labor of foreign workers.

Peculiarities of employment in the Russian Federation for citizens with foreign citizenship

The International Migrant Workers Convention was adopted back in 1949. It regulates the provision of employment by the state to a migrant on the same conditions as for its own citizens. At the same time, Russian employers, when hiring foreign citizens, correlate their actions with labor and administrative domestic legislation. There are also quotas for the entry of those migrants into Russia who are seeking to get a job in our country.

An employer may use the labor of foreign workers only with appropriate permission. Since 2013, changes have been made to the legislation. They say that those foreigners who have a temporary residence permit have the right to work without a special permit. At the same time, such a foreign employee is deprived of the right to work in another subject of the Russian Federation if he has a temporary residence permit in a certain territory.

An employment contract with a foreigner may be concluded on the terms of including the following information:

• temporary residence permit (applies to those foreigners who reside in Russia temporarily);
• residence permit (for those foreign citizens who have permission to permanent residence in the Russian Federation);
• patent, work permit (for persons with foreign citizenship temporarily staying in the Russian Federation).

A foreigner cannot obtain employment in Russia without having a voluntary health insurance agreement in hand. There are situations when a work permit is granted only after an employment contract has already been concluded with a foreigner - this practice also occurs.

Termination of an employment contract with a foreign employee

The employer has the right to terminate the employment contract concluded with a foreign worker. The reasons for this may be the cancellation of a work permit or patent, a temporary residence permit for a foreigner, or a residence permit. The basis for termination of the contract may be the completion of the VHI agreement, as well as the permitting document for the use of labor of foreign workers.

Many citizens who arrived from neighboring countries in search of good earnings work at Russian enterprises. They are subject to the standards of labor law in force in the country. Not long ago, amendments were introduced to it regarding the employment of foreign citizens.

General provisions

The legislator included in the Labor Code of the Russian Federation new chapter 50.1 “Features of labor regulation for workers who are foreign citizens and stateless persons.” It was introduced in accordance with the instructions of Federal Law No. 409-FZ, issued on December 1, 2014. It notes that changes should be made to the Labor Code and Federal Law No. 115-FZ regarding the conduct of labor activities of citizens arriving from other states.

About labor law of the Russian Federation

One of the dynamically developing branches of law in the Russian Federation is labor law. The regulation of the relationship between employer and employee is carried out by the standards of the Labor Code, which came into force on February 1, 2002. Amendments, additions and changes have been repeatedly introduced to it in order to improve the institution of labor.

These include standards regarding:

• labor relations;
• production working conditions;
• the procedure for concluding an employment contract, making changes to it and terminating it.

The current Labor Code allows for the regulation of working hours, work and rest schedules. It contains standards that allow differentiation of working conditions for workers of a special category.

These include labor:

• minor children;
• women;
• citizens who are legally married;
• persons working part-time.

The standards of the code guarantee the protection of the rights and freedoms of workers, regardless of the type of work they carry out. Controversial situations regarding refusal to hire, restoration of the workplace and transfer to another job, discrimination committed by the employer are resolved in court.

Work of foreign citizens under the Labor Code of the Russian Federation

The need to regulate, in accordance with labor law standards, the issue of legal relations arising between an employer and a foreign citizen has been long overdue. The phenomenon is caused by the specifics of employment and the production of labor activity. It can only be carried out on the basis of those suitable for the given case. permitting documents.

What are the innovations of Article 50.1?

The newly introduced standards supplemented Section No. 12 of the Labor Code of the Russian Federation, which sets out the characteristic features of coordinating the work of a separate contingent of workers. They allowed us to resolve a number of complex issues, directly related to labor relations with persons who are not Russian citizens. The legislator has established the specifics of hiring the above persons.

These include:

• conclusion of a written agreement establishing the rights and obligations of the employer and employee;
• implementing a temporary transfer when a production need arises to perform other work;
• removal from existing functional duties;
• termination of the employment contract concluded upon employment;
• compensation as severance pay;
• presentation of a certain package of documents upon employment.

About temporary transfer

The employer, in accordance with the standards of Article 327.4 of the Labor Code of the Russian Federation, can transfer a foreign worker to a job not specified in the permit or patent. It can be transferred once per calendar year while maintaining your job. In this case, it is not necessary to obtain the employee’s consent on the basis of the standards of Article 72.

About the employment contract

The employer has the right to hire citizens of other states, but he must draw up a written agreement that establishes mutual rights and obligations. It can be concluded for an indefinite period, taking into account the characteristics of hired labor of foreign nationals. As for a fixed-term employment contract, its execution is carried out taking into account the standards of Article 327.1 of the Labor Code of the Russian Federation.

These include:

• performance of temporary work lasting up to 2 months;
• hiring the head of the enterprise, his deputy, on the basis of an agreement drawn up in accordance with the standards provided for in Article 50 of the Labor Code of the Russian Federation.

Termination

If it is impossible for a foreign worker to return to his previous job after the expiration of the transfer period, the employment contract with him may be terminated in accordance with the standards of Article 76 of the Labor Code of the Russian Federation. In addition, it is terminated upon expiration of the documents allowing labor activity in the territory Russian state.

These include:

• employer's permission to hire and use a foreign worker;
• permission of a foreign worker to carry out labor activities;
• a patent that allows you to find employment not only with individuals, but also at Russian enterprises;
• a document confirming the provision of insurance confirming the right to receive high-quality medical care - a VHI policy;
• an official document certifying the issuance of a permit allowing you to live on the territory of the Russian Federation for some time;
• resident card.

The standard is provided by the legislator in Article 327.5, which explains the main issues of hiring foreign citizens.

About severance pay

The employer receives special permission to attract foreign nationals to work, as emphasized in the instructions of Article 13 of Federal Law No. 115-FZ. The standard applies to cases of hiring citizens who arrived in Russia on a visa.

As for foreign nationals permanently residing on its territory or who entered it without a visa, permission is not required for their employment.

If its validity period expires, it is suspended or cancelled, then the employment contract with an employee who is a citizen of another state is terminated in accordance with the standards of Article 327.6 of the Labor Code of the Russian Federation. The employer must pay them severance pay for 2 working weeks. Its size is calculated based on the average wages, as noted in the standards of Article 327.7 of the Labor Code of the Russian Federation.

Specifics of foreigners' work activities

The procedure for employing citizens arriving from neighboring countries is regulated by the instructions of the Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation,” issued on July 25, 2002 under number 115-FZ. In addition to it, regulation is carried out by Chapter 50.1 and separate standards of the Labor Code of the Russian Federation.

What documents are needed

In accordance with the current regulations, a foreign citizen must obtain a permit or a patent in order to find a job. The type of permit is determined by the method of entry into the country - on the basis of a visa or without it. As a rule, a visa-free foreign national must obtain a patent if he intends to find employment regardless of his workplace.

The list of documents required to be presented for employment is given in the instructions of Article 65 of the Labor Code of the Russian Federation.

It includes:

• a general passport allowing identification of the applicant or any other document of the same purpose;
• work book. If an applicant for a job is getting a job for the first time or intends to get a part-time job, then it is not presented;
• a document certifying the conclusion of an insurance contract provided for by the compulsory insurance system;
• a certificate of education, qualifications, and possession of special knowledge, if the position held requires special training and the ability to perform specific types of work;
• criminal record certificate. It is necessary when applying for a job to which persons who have committed a criminal act are not allowed.

If a person gets a job for the first time, the employer opens a work book and issues a certificate of compulsory insurance through the pension fund. A foreign citizen, in addition to the above list, must submit a number of documents, as noted in the newly introduced regulations of Article 327.3 of the Labor Code of the Russian Federation.

These include:

• document on the implementation of voluntary health insurance. If the employer has entered into an agreement with a medical institution to provide paid services to their employees, there is no need to present a VHI policy. The same applies to cases provided for by other federal legislative acts and international treaties;
• temporary residence permit, if a citizen of another state who is applying for a job temporarily resides on the territory of the Russian state;
• residence permit if the foreign national intends to continue to live permanently in Russia.

Prerequisites

A foreign national who entered without a visa must apply for a patent within one month. The period is counted from the day of crossing the border into the territory of the Russian state. His responsibilities include presenting a migration card, which is noted in the instructions of Federal Law No. 115-FZ.

A patent is issued on the basis of:

• a document that allows you to identify the authenticity of the identity of a foreign national. As a rule, it is required to present a general passport of the country from which he arrived in Russia;
• payment receipt confirming the advance payment for personal income tax. Its size is set by the legislator as a fixed fixed amount. The norm is provided for by the instructions of the above-mentioned act of the latest edition.

It is extended in general procedure up to one year, if issued for a shorter period. The advance payment is made for the renewal period, which is emphasized in the instructions of the above-mentioned act. Otherwise, the validity period of the labor patent will expire, so the foreign citizen will lose the opportunity to get a job.

Late application for a patent entails the application of sanctions as administrative liability. It provides for the imposition of a fine in the amount of 4,000-5,000 rubles in accordance with the instructions of Article 10.10 of the Code of Administrative Offenses.

It should be emphasized that the maximum validity period of a patent for employment is one year. After the specified time has expired, it is necessary to extend the validity of permits that allow you to engage in work activities. Failure to comply with this measure will result in deportation from the Russian state.

The most important international source regulating the labor of foreign workers is the ILO Migrant Workers Convention No. 97 (1949). The Convention obliges the State to provide, without discrimination on grounds of nationality, race, religion or sex, to immigrants lawfully present in its territory conditions no less favorable than those enjoyed by its own citizens in respect of wages, including family benefits, working hours; overtime work; paid holidays, etc. Unfortunately, the Russian Federation has not ratified this convention and many other documents in the field of labor for migrant workers.

When using a foreign labor force it is necessary to be guided not only by labor, but also by administrative legislation. The key source in accordance with which foreign workers are attracted is the Federal Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” (as amended on April 20, 2014). One should also take into account the Federal Law of July 18, 2006 No. 109-FZ “On Migration Registration of Foreign Citizens and Stateless Persons in the Russian Federation” (as amended on December 28, 2013); Ch. 18 of the Code of the Russian Federation on Administrative Offenses (Resolutions of the Constitutional Court of the Russian Federation dated February 25, 2014 No. 4-P, dated April 8, 2014 No. 10-P), Federal Law of the Russian Federation dated December 15, 2001 No. 167-FZ “On compulsory pension insurance in the Russian Federation” (as amended by Federal Law No. 33-FZ dated March 12, 2014), Part 2 of the Tax Code of the Russian Federation (clauses 12-13 of Article 333-28), Ch. 2 of the Treaty on the creation of the Union State of December 8, 1999 (ratified by Federal Law No. 25-FZ of January 2, 2000) and others.

It should be noted that in our country the labor of migrant workers is quite limited. This is expressed in quotas for entry into the territory of the Russian Federation for the purpose of carrying out work activities and obtaining work permits.

Hiring foreign citizens for work has its own characteristics. In the Federal Law of July 25, 2002 No. 115-FZ “On the legal status of foreign citizens in the Russian Federation” (as amended on April 20, 2014), paragraph 4 of Art. 13, it is provided that the employer and customer of work (services) have the right to attract and use foreign workers only if they have permission to attract and use foreign workers. It should be noted that as of January 1, 2013, changes to the federal law came into force, and for citizens with a temporary residence permit, a work permit is not required. Paragraph 5 of this article establishes that a foreign citizen temporarily residing in the Russian Federation does not have the right to carry out labor activities outside the boundaries of the subject of the Russian Federation in whose territory he is permitted temporary residence.

Foreign workers are prohibited or restricted in some areas professional activity related to state and municipal service or state security. In addition, the Government of the Russian Federation annually establishes the permissible shares of foreign workers in certain areas of labor activity, and in some cases the work of foreign workers is not allowed at all. So, in 2013 retail in tents and markets (as well as a number of other activities) were not allowed by foreign citizens.

The procedure for hiring foreign citizens directly depends on their legal status. Foreign citizens permanently residing on the territory of the Russian Federation (having a residence permit) can be accepted to perform work in organizations throughout the Russian Federation in the manner and under the conditions provided for Russian citizens.

Foreign citizens temporarily residing in the Russian Federation (having temporary registration for a period of three years) can be hired in the manner and under the conditions provided for Russian citizens, with one limitation: they can carry out labor activities only within the constituent entity of the Russian Federation in which territory of which they are allowed temporary residence.

According to Art. 13 of this law, the Government of the Russian Federation, taking into account the characteristics of regional economic ties may establish cases of labor activity for foreign citizens temporarily residing in the Russian Federation outside the boundaries of the subject of the Russian Federation in whose territory they were issued a work permit, and for foreign citizens temporarily residing in the Russian Federation - outside the boundaries of the subject of the Russian Federation in whose territory they are permitted temporary residence.

Thus, permission to attract and use foreign workers applies to foreign citizens temporarily staying in Russia (those who arrived in Russia in a manner requiring a visa; those who arrived in Russia in a manner that does not require a visa). Before concluding an employment contract with foreign citizens who arrived in Russia in a manner requiring a visa, the employer, and when concluding a civil law contract, the customer of work (services), is obliged to:

• - have permission from the migration service (federal internal affairs body or its territorial body) to attract and use foreign workers;
• - ensure that foreign citizens receive a work permit;
• - provide the documents necessary for registration of foreign citizens at the place of stay in the Russian Federation;
• - notify the tax authority at the place of your registration about the attraction and use of foreign workers.

Currently, the registration procedure related to the attraction and use of foreign workers temporarily staying in Russia has been simplified. The procedure for issuing work permits to foreign citizens who arrived in Russia in a manner that does not require a visa has also been simplified. A visa-free entry regime today applies to citizens of Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan on the basis of the Agreement of the Government of the Russian Federation and the governments of these countries dated November 30, 2000. A similar agreement (dated January 16, 1997, as amended on February 20, 2007) on visa-free travel regime exists between the Government of the Russian Federation and the Government of Ukraine.

It should be noted that due to the growing level of escalation between the governments of the Russian Federation and Ukraine due to what is happening in latest events a visa regime may be introduced. Representatives of the Kyiv authorities have repeatedly stated this. In the end, Ukraine’s own citizens will suffer from its actions. It is Ukrainians who cross the Russian border more often; millions of guest workers have found higher-paying jobs in Russia than in their homeland. In 2013 alone, 3.3 million Ukrainians visited Russia, of which 2.9 million worked. Labor migrants from Ukraine earned money in Russia for last year about 30 billion dollars. According to the Federal Migration Service, in 2014 there were about 1.6 million Ukrainians in Russia, and compared to 2013, the number of Ukrainians entering the Russian Federation without the intention of working has increased.

Special rules for recruitment to work have been established for citizens of Belarus. According to paragraph 5 of Art. 14 of the Treaty on the Establishment of the Union State dated December 8, 1999, concluded between the Russian Federation and the Republic of Belarus (ratified by Federal Law No. 25-FZ dated January 2, 2000), citizens of the Union State enjoy equal rights and have equal responsibilities on the territory of another participating state, unless otherwise not provided for by the legislative acts of the participating states or agreements between them. Thus, Belarusian citizens are equal in their own way legal status citizens of Russia, therefore, employers (customers) do not require permits to attract and employ citizens of Belarus in labor activities, and citizens of Belarus do not require work permits.

However, many employers violate established rules, hiring foreign workers without permission from the migration service to attract and use foreign labor or in the absence of foreign workers having a work permit. At the same time, the labor rights foreign illegal workers, whose working conditions deteriorate significantly compared to those established by the labor legislation of the Russian Federation, and the interests of the state, since state duties are not paid, taxes are not collected, etc. Art. 18.15 of the Code of Administrative Offenses of the Russian Federation provides for the administrative liability of the employer for the illegal attraction and use of foreign labor and (or) the lack of a foreign worker’s work permit in the form of a fine or administrative suspension of activities. The same article provides for administrative liability of the employer for failure to notify the relevant authorities executive branch on the involvement of a foreign citizen in labor activities in the Russian Federation, if such notification is required, in the form of a fine or administrative suspension of activities.

In practice, the question often arises related to the payment of insurance premiums for compulsory pension insurance for foreign citizens. In accordance with Art. 7 of the Federal Law of December 15, 2001 No. 167-FZ (as amended on March 12, 2014) “On Compulsory Pension Insurance in the Russian Federation” the insured persons include foreign citizens and stateless persons living in the territory of the Russian Federation.

Thus, insurers must pay insurance premiums for compulsory pension insurance in Pension fund on a general basis for foreign citizens permanently and temporarily residing in the territory of the Russian Federation. For foreign citizens who are not permanently or temporarily residing in the territory of the Russian Federation, i.e. temporarily staying in the territory of the Russian Federation, insurance contributions for compulsory pension insurance are not paid.