Irina Anyukhina

Irina Anyukhina

Partner
Irina Anyukhina

Chambers Europe

Irina is experienced, accurate and trustworthy professional, guided by broad experience, deep knowledge and attention to details.

Biography
Recent work
Publications and Insights
Rankings and awards

Irina Anyukhina is the ALRUD Law Firm partner heading Labour and Employment practice.

Irina is a recommended expert on Labour law, advising international and Russian companies on international and cross-border workplace issues, reductions and restructurings, senior executives and expatriate issues.

Irina operates at the interface of employment and corporate laws in cases involving mergers and acquisitions, implementation of incentive programmes, executive compensation and benefits, global and local employment policies, outsourcing, and employee privacy issues.

Irina is often involved in cross-border and internal investigations of employees’ misconduct. Irina represents clients in out-of-court settlements and disputes with employees.

Irina Anyukhina joined ALRUD in 2002 and became partner in 2007. Clients praise Irina for her business-oriented approach, outstanding communication skills, thoughtfulness and ability to clearly enunciate the core of the matter.

Irina graduated from the Moscow State University of International Affairs with Ministry of International Affairs of Russia, Public international law division of International law department.

Irina coordinates cooperation with Ius Laboris, the largest international alliance of Labour law professionals. She regularly speaks at international conferences, and is a member of International Bar Association (IBA) and American Bar Association (ABA).

Irina is also an active member of the Global Advertising Lawyers Alliance (GALA), a network of independent law firms, which provides a worldwide resource to individuals and corporations interested in answers to questions and solutions to problems involving the complex legal issues affecting advertisers and marketers.

Include advising:

Uber

in its major business merger deal with Yandex on a great number of employment and HR-related questions.

Akzo Nobel

with separation of its Specialty Chemicals business unit, development and implementation of employee restructuring plan.

Philip Plein

on the development of HR policies, including bonus policy for sales employees.

An internationally leading medical device company

with staff restructuring to ensure balanced shareholder control over business operations.

Olam

on the legal and tax implications of implementing the international employee share plan.

The major analytics company

with a complex internal investigation of alleged misconducts of two employees of the Russian subsidiary.

One of the leading Japanese manufacturer of commercial vehicles and diesel engines

with reviewing the evidences concerning incompliances of one of the top manager, and developed the strategy for protection of the Client’s and its CEO’s business reputation and interests.

The group of music companies

in 4 litigations with the conflict employee who had access to the financial resources of the Client.

Webinar: Anti-crisis workforce restructuring & outsourcing
On July 16 was held an webinar “Anti-crisis workforce restructuring & outsourcing in Eurasia” based on ALRUD Law Firm. ALRUD Labour practice together with partners from Ukraine (Vasil Kisil & Partners), Kazakhstan (AEQUITAS Law Firm) and Belarus (COBALT Belarus) spoke about workforce restructuring measures applicable in their countries, practical aspects to consider when optimizing personnel costs, including the specifics of outsourcing regulation. The experts shared their experience and practical advice on communication & interaction with employees in course of restructuring and answered questions from an international audience. The speakers: Irina Anyukhina, Partner and Head of Labour Practice, ALRUD, and Margarita Egiazarova, Senior Associate, ALRUD Valeria Savchuk, Counsel of Labor and Employment Practice, Vasil Kisil & Partners Larissa Yemelyanova, Senior Associate, AEQUITAS Law Firm Darya Zhuk, Managing Partner, COBALT Belarus The webinar presentation can be downloaded here.
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ALRUD experts prepared the chapter about Russia for The International Comparative Legal Guide
Leading law firms from 32 countries have provided reviews for ICLG: Corporate Immigration Laws and Regulations 2020. ALRUD Labour Law Practice representatives Irina Anyukhina, Partner, and Margarita Egiazarova, Senior Associate prepared the review on Russian legislation and practice. The chapter covers common issues in corporate immigration laws and regulations - including compliance, investment work permits and dependants. To read the chapter, please use the link. The International Comparative Legal Guides (ICLG) are the series of publications covering different practice areas, including legislative and practice review for the major countries of the world.
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Transfer to a digital register of work experience. Deadline – June 30th, 2020
Until June 30th, 2020, inclusive, companies shall notify employees in written form: on changes connected with setting out a digital register of employees’ work experience; on employees’ right to choose whether to continue keeping a labour book, in hard copy, until December 31st, 2020. In accordance with the current legislation, companies are obliged to notify the Russian Pension Fund: of employees’ hiring or dismissal – no later than 1 business day following the day when the respective order is issued; of employees’ transfer to another permanent job, or providing an application to continue keeping the labour book in hard copy, or to provide him/her with the digital records of work experience – no later than the 15th day of the month following the month when such transfer, or filing of an application, occurred. When the company provides the respective information to the Russian Pension Fund for the first time, the company shall also specify, in the respective form, all information on the employee’s labour activity with this particular employer, as of January 1st, 2020. In case the company fails to file the information with the Russian Pension Fund within the statutory period, or the company provides incomplete, or inaccurate, information, the company and its officials may be subject to administrative liability, e.g. fines. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practice: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
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Checklist: Reopening of business after lifting restrictions
ALRUD’s Labor experts have prepared the material that is useful for each employer in the current situation: Checklist: Reopening of business after lifting restrictions / Чек-лист: Возобновление деятельности компаний после снятия ограничений. The checklist includes the main steps that must be taken to return the company and employees usual work activities after lifting the restrictions. Most interesting for company managers, HR directors, Compliance officers, heads of legal departments. Download ENG Download RUS We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practice: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
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ALRUD experts hold leading positions in the Best Lawyers rating
Best Lawyers – one of the most authoritative international legal ratings – has published the results of the Russian legal market research 2021. The rating is based on the estimates of internationally recognized market players. This is not the first time that ALRUD has taken a leading position in key practices, and this year our experts have managed to expand their presence in the rating. Maxim Alekseyev, Senior Partner, is the winner of the Lawyer of the Year 2021 rating in the field of business administrative regulation. For the second year in a row, the labor practice team brings ALRUD the title of the Law Firm of the Year in Russia 2021. This year, Irina Anyukhina, Partner and Head of the Labor practice, becomes the winner of the Lawyer of the Year 2021 in the field of Labor law. Best Lawyers recommends ALRUD experts in the following fields of law: Arbitration and Mediation - Vassily Rudomino, Senior Partner, Magomed Gasanov and Sergey Petrachkov, Partners and Dmitry Kuptsov, Senior Associate Banking and Finance Law - Alexander Rymko, Partner Capital Markets Law - Vassily Rudomino, Senior Partner and Alexander Zharskiy, Partner Competition / Antitrust Law - Vassily Rudomino, Senior Partner, German Zakharov, Partner, Ruslana Karimova and Ksenia Tarkhova, Senior Associates, Roman Vedernikov, Associate Construction Law - Irina Anyukhina, Partner and Stanislav Veselov, Senior Associate Corporate Law - Maxim Alekseyev and Vassily Rudomino, Senior Partners, Alexander Zharskiy, Partner, Olga Pimanova and Oleg Ezhov, Of Counsels, Sergey Khanaev, Senior Associate, Dmitry Pashkov and Alexander Kleschev, Associates Corporate governance and Compliance - Alla Azmukhanova, Associate Criminal Defense - Alexander Mikhailov, Associate Information Technology Law - Irina Anyukhina, Maria Ostashenko and Anton Dzhuplin, Partners and Ksenia Erokhina, Senior Associate Insolvency and Reorganization Law - Vassily Rudomino, Senior Partner, Sergey Petrachkov and Alexander Zharskiy, Partners Intellectual Property Law - Irina Anyukhina and Maria Ostashenko, Partners and Ilya Khodakov, Associate Investment - Vassily Rudomino, Senior Partner Labor and Employment Law - Vassily Rudomino, Senior Partner, Irina Anyukhina, Partner, Olga Pimanova, Of Counsel, Margarita Egiazarova and Anastasia Petrova, Senior Associates Litigation - Vassily Rudomino, Senior Partner, Magomed Gasanov and Sergey Petrachkov, Partners, Boris Ostroukhov, Senior Associate, Denis Bekker, Associate Media Law - Irina Anyukhina and Maria Ostashenko, Partners Mergers and Acquisitions Law - Vassily Rudomino and Maxim Alekseyev, Senior Partners, Alexander Zharskiy and Andrey Zharskiy, Partners, Timur Akhundov, Senior Associate Privacy and Data Security Law - Irina Anyukhina, Partner Real Estate Law - Irina Anyukhina and Alexander Zharskiy, Partners and Aleksey Kalinkin, Associate Regulatory Practice - Maxim Alekseyev, Senior Partner and Dina Kravchenko, Associate Tax Law - Maxim Alekseyev, Senior Partner, Elena Novikova, Of Counsel, Sergey Artemiev, Associate Technology Law - Anton Dzhuplin, Partner Telecommunications Law - Irina Anyukhina and Maria Ostashenko, Partners Trusts and Estates - Kira Egorova, Of Counsel, Ekaterina Vasina, Senior Associate
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Digest of key judgments concerning employment relations 2019/2020
Please find, herein, the latest up-to-date digest of the most significant court decisions concerning the legal regulation in the field of labour and employment. Here are the key decisions of the Higher Courts of the Russian Federation, as well as precedents of regional judicial authorities, from the end of 2019 to May 2020. Staff redundancy and dismissal due to liquidation <>1. The Supreme Court of the Russian Federation reaffirmed that, in case of staff redundancy, employers are obliged to offer all vacant job roles available in the area, including those in branches The employee was dismissed, due to staff redundancy, in the branch of a company. The employee considered the dismissal illegal and filed a claim in court. The employee insisted that the employer did not offer him vacant job roles, in all branches of the company. The first and second court levels supported the employer, who claimed that there were no vacant positions in the branch, where the employee was dismissed. The Supreme Court of the Russian Federation did not agree with this approach and ordered a retrial, highlighting that, in the case of staff redundancy, the employer should offer all vacant job roles, in the area where the redundancy takes place, including in all branches. The court emphasized that a branch is a subdivision of the company; therefore, the obligation to offer vacancies applies to the whole company. Source: Decision of the Supreme Court of the Russian Federation, dated January 20th, 2020 No. 5-KG19-217 2. The Moscow City Court confirmed the formal approach: a redundant employee is eligible to a third-month severance payment, even if this employee is the founder of another company The company dismissed the employee due to staff redundancy and, following the requirements of the law, upon the employee’s request, paid him a severance payment for the third month of unemployment. Subsequently, the employer discovered that the employee was a founder of another legal entity and considered that the payment of the third severance payment was unlawful. The company filed a lawsuit to recover unjust enrichment from the former employee. The first court level supported the employer, deciding that the co-founder of a company cannot be considered unemployed, which means that he is not entitled to severance payments. The Moscow City Court did not endorse this view, referring to the fact that the employee submitted all the documents required for receiving the severance payment, including the decision of the employment center confirming the employee’s unemployment and his right to receive the additional severance payment, which had not been challenged and not canceled. Given these documents, the employer was obliged to make payments. Source: Appeal ruling of the Moscow City Court, dated March 12th, 2020 No. 2-4518/2018 3. The Moscow City Court explained that, if the company continues operating, the dismissal of employees due to liquidation is illegal The company was declared bankrupt and some employees were dismissed, due to the liquidation of the company. Employees considered their dismissal unlawful and applied to the court. They enhanced their claims with the fact that the bankruptcy proceedings were extended, and the company actually hired other individuals for their positions. The Moscow City Court supported the employees, indicating that the company had not been expelled from the Unified State Register of Legal Entities and was continuing its activities. These facts meant that it did not have the right to dismiss employees due to the liquidation. Source: Appeal ruling of the Moscow City Court, dated February 26th, 2020 No. 33-7837/2020<> Truancy <>1. The Supreme Court of the Russian Federation specified that problems with transport can be a good reason for an employee not appearing at work The employee could not come to work, because the road to the office was blocked. The company did not consider the reason for the failure to appear justifiable and dismissed the employee for truancy. It considered that he could travel to the workplace in another way. The employee filed a lawsuit for reinstatement. The first and second court levels supported the company and the employee was not reinstated. The Supreme Court did not agree with this approach and sent the case back for a new trial. The court indicated that, when deciding on the dismissal, the employer should have taken into account the employee’s previous disciplinary record, the fact that the employee was trying to travel to the office, had warned the management about the encountered problems, and did not know an alternative route. Source: Decision of the Supreme Court of the Russian Federation, dated March 16th, 2020No. 26-KG19-13 2. The time of absence of an employee, before and after lunch, should not be aggregated, the Khabarovsk Regional Court determined The employee was absent from the workplace one and a half hours before lunch and four hours after lunch. The company dismissed him due to truancy, based on the aggregate of time of absence. The court found the dismissal unlawful, indicating that, during the lunch break, the employee was lawfully absent from work. Thus, excluding lunchtime, the employee was not absent from the workplace for more than four consecutive hours, which means he did not commit truancy. Please note that earlier the courts considered similar situations differently. Source: Appeal ruling of the Khabarovsk Regional Court, dated April 24th ,2020 in the case No. 33-2181/2020 3. The Moscow City Court once again affirmed that dismissing a pregnant employee, for absence from work, is illegal The company dismissed an employee for truancy. Subsequently, the employee informed that she was pregnant and applied to the court for reinstatement at work. The employer insisted that, on the date of dismissal, the company did not have information that the employee was pregnant. The Moscow City Court supported the employee and reaffirmed that the ban, on the dismissal of a pregnant woman on the initiative of the employer, is valid in any case. Source: Appeal ruling of the Moscow City Court of November 26th, 2019 in case No. 33-48834/2019 4. The Supreme Court of the Russian Federation did not confirm that the remote employee committed truancy De-facto, the employee worked at his residence (remotely) for a long time. At the same time, his employment contract provided for an office-working regime. The company did not formalize the employee’s transfer to remote employment. The company terminated the employment relations with the employee for gross misconduct – truancy, as the employee did not appear in the office. The employee challenged the dismissal, but the first and second court levels supported the company: formally, the employment contract did not provide for a remote-working regime. The place of work was specified to be at the address of the company: the employee did not submit any documents evidencing the transfer to remote work. The Supreme Court rejected the judgment of the lower courts and ordered a retrial. It highlighted the importance of indirect evidence (for example, remote access to the work system, etc.) which showed that the company violated the law as it had not formalized the actual remote employment. Moreover, the employee actually worked according to the new conditions (remotely) with the knowledge, or on behalf, of the employer, which meant that the parties had, de facto, agreed to amend the employment contract. Source: Decision of the Supreme Court of the Russian Federation, dated September 16th, 2019 No. 5-KG19-106<> Fixed-term employment contracts <>1. The Constitutional Court of the Russian Federation explained the connection between the services agreement with the customer and the term of the employment contract A fixed-term employment contract was annually renewed, based on the duration of the services agreement with the company’s customer. The employee considered this unlawful and filed a claim with the court. The lower courts supported the company and did not reclassify the fixed-term employment contract as being open-ended. The employee filed a complaint with the Constitutional Court of the Russian Federation. The Constitutional Court examined the complaint. It pointed out that a fixed-term of the employment contract cannot be determined by the execution of the agreement with third parties for the provision of services that comprise the main registered type of activity of the company. This rule applies even if the employee’s activities are required only for the period of the specific civil contract with the counterparty of the company. In addition, the court also emphasized that prolongation of a fixed-term employment contract, with the same employee, for the same job position, several times, actually shows the absence of obstacles to entering into an open-ended employment contract. Source: Resolution of the Constitutional Court of the Russian Federation, dated May 19th, 2020 No. 25-P 2. The duration of a fixed-term employment contract is not always limited to five years, the Kemerovo Regional Court explained An employee was hired to carry out defined work for a client of the company. A fixed-term employment contract was concluded with him, with an uncertain end date, since the term of the employment contract directly depended on the period of cooperation with the client. Relations with the client terminated after six years and the employee was dismissed due to the expiration of the company’s service contract. The employee considered the dismissal unlawful, because, in his opinion, after five years, according to the law, his employment contract had become open-ended. The court confirmed that the company's actions were legal. The end date of the employment contract was not determined and was tied to when the provision of services to the client ended. In this case, the duration of the employment contract may not be limited to five years. Source: Appeal ruling of the Kemerovo Regional Court, dated October 31st, 2019 in case No. 33-10856/2019 3. The Saratov Regional Court did not recognize a relationship as concluded for an indefinite term, although an employment contract was renewed seven times The Deputy General Director worked for a long time on the basis of renegotiable fixed-term employment contracts. When the company decided not to enter into another employment contract for a new term, the employee applied to court. At the first court level, the court upheld the employee’s case and ruled that the multiple renewals of an employment contract, with the employee, to perform the same function indicated the indefinite nature of the relationship. The Court of Appeal overturned the decision, referring to the fact that a fixed-term employment contract was concluded by the mutual consent of the parties. This is expressly provided for by the Labour Code of the Russian Federation for employees of similar positions. The court directed that the parties might conclude a fixed-term employment contract, by their mutual consent, several times (where possible, in accordance with the provisions of the Labour Code of the Russian Federation). Thus, by signing such an employment contract, the employee agreed to all its conditions, including the fixed term. Source: Appeal ruling of the Saratov Regional Court, dated October 17th, 2019 in case No. 33-8580/2019<> Probationary period and liability <>1. The Moscow City Court approved the dismissal for not passing the probationary period, which was not included in the employment contract The company dismissed the employee for failure to pass the probationary period. At the same time, there were no probationary provisions in the employment contract. The employee decided to challenge the dismissal and applied to the court. The first court level reinstated the employee at work. However, the Moscow City Court overturned the decision. The Court of Appeal decided to overturn the decision, of the first court level, based on the fact that the employee had agreed to undergo a review, as indicated in the hiring application. In addition, the employee was acquainted with the individual plan, and the hiring order, in which the condition for the probation was indicated. The employer also proved that the lack of a probation-period condition, in the employment contract, was a technical error. Source: Appeal ruling of the Moscow City Court in case No. 33-8165 / 2020 2. The Supreme Court of the Russian Federation confirmed – it is impossible to recover unjust enrichment from an employee The company discovered that the employee had secretly transferred corporate money to a personal bankcard. It filed a claim with the court to recover unjust enrichment. The first court level rejected the company’s lawsuit. The Court of Appeal reversed the decision, but the Supreme Court of the Russian Federation returned the case for further consideration. It specifed that it is impossible to apply the provisions of the Civil Code of the Russian Federation, on the return of unjust enrichment, to labour relations. An employer may only recover direct actual damages from an employee, in accordance with labour law. Source: Decision of the Supreme Court of the Russian Federation, dated February 17th, 2020 No. 85-KG19-12 3. The court highlighted that it is important to invoke the violated obligations in the order on disciplinary sanction The employee was disciplined, in the form of a reprimand, for refusing to perform employment duties. The employee did not agree with the sanction and applied to court. The court upheld the employee’s claim, citing that the order, to bring the employee to disciplinary liability, did not contain a clear statement of his guilt. In addition, it did not indicate which misconduct was committed, nor which employment duties were violated. Separately, the court noted that the order did not contain references to specific points of the job description, violated by the employee. Source: Appeal ruling of the Nizhny Novgorod Regional Court, dated March 3rd, 2020 No. 33-2262/2020 4. The St. Petersburg City Court confirmed that holding an employee liable for failure to fulfill company plans is illegal The employee was a regional sales manager. Due to the facts that the employee failed to discharge his objectives regarding bringing new clients, nor did he meet sales targets, he was brought to disciplinary proceedings several times. The employment relationship with the employee was terminated, for repeated failure to perform employment duties. The employee considered the dismissal illegal and applied to court. Given that the employee was acquainted with the individual goals plan, but did not fulfill it, the court of the first court level supported the company. However, in the appeal court, the decision was reversed. The court cited, in particular, that the employee was required to achieve a certain result, which is typical for civil-law relations, but not labour relations. In addition, none of the company's employees could achieve the goals’ plan. The court also emphasized that the implementation of the employee’s plan depended on the will of third parties, the financial situation in general, pricing, and other reasons not directly related to the employee and his labour discipline. Please note that the approaches of the courts on this issue vary. Source: Appeal ruling of the St. Petersburg City Court, dated February 13th, 2020 in the case No. 2-3991/2019 5. The Supreme Court of the Russian Federation explained that dismissal, resulting from a disability hidden by an employee, may be discriminatory A company, with fewer than 100 employees, entered into an employment contract with an employee who, a few days after the hiring, informed the employer about his disability. Three years later, the company decided to terminate the employment relationship with the employee, due to the fact that he violated the rules for concluding an employment contract. Namely, the company specified that the employee did not inform it about his disability, when applying for a job. The employee decided to challenge the dismissal and applied to court. The first and second court levels did not see violations in the company's actions and rejected the employee claim. The Supreme Court of the Russian Federation did not support the lower courts and ordered a retrial, indicating that the employer's actions showed signs of discrimination. The employer had reliable information about the state of health of the employee during three years of his employment, and, during that time, the company did not express complaints about employee’s professional, business, and moral qualities. In addition, the Supreme Court drew attention to the fact that, as a general rule, a disability certificate, and an individual rehabilitation program, are not included in the list of required documents for employment. The court also emphasized that, although a company, with an average number of employees not exceeding 100 people, is not obliged to create jobs for people with disabilities, in relation to employees already hired, the employer is obliged to organize working conditions suitable for them, due to their health conditions. Source: Decision of the Supreme Court of the Russian Federation, dated December 9th, 2019 No. 78-KG19-46 6. A fine cannot be included in the confidentiality agreement concluded with an employee, the St. Petersburg City Court explained The company concluded a confidentiality agreement with the employee. The agreement contained the employee’s obligation not to work with clients of the company, after the end of employment in the company. The agreement also provided for a fine, applicable to the employee, in case of breach of this clause. The employee violated the agreement, but refused to pay the fine. The company applied to court. The court rejected the employer's arguments and did not enforce the claim. The decision was justified by the fact that the agreement was concluded within the framework of labour relations. In this regard, the fine clause is not applicable. Only direct actual damages can be recovered from the employee, the evidence of which the employer had not provided. Source: Appeal ruling of the St. Petersburg City Court, dated September 12th, 2019 No. 33-19819/2019 in the case No. 2-4012/2019<> Overtime work <>1. The Constitutional Court of the Russian Federation indicated that the employer must pay all overtime hours, even if they exceed 120 hours per year The Constitutional Court of the Russian Federation, having examined the employee’s complaint, confirmed that, even though the maximum number of overtime hours cannot exceed 120 hours per year, this does not mean that the employer is not required to pay for overtime hours actually worked, above this maximum. Source: Decision of the Constitutional Court of the Russian Federation, dated December 19th, 2019 No. 3363-O 2. If the employee decides to work on vacation in his sole discretion, the company is not required to pay, determined the St. Petersburg City Court After the dismissal, the employee filed a lawsuit to recover payment of days worked during his vacation. The employee substantiated the claim by the fact that the employer did not notify him of the vacation, nor did it issue an order. The company claimed that the employee went on vacation, according to the vacation schedule, with which he was acquainted, received vacation pay on time, and no one recalled him from vacation. The court upheld the company’s legal position. Source: Appeal ruling of the St. Petersburg City Court, dated March 18th, 2020 in case No.2-5036/2019<> Foreign nationals <>1. The Constitutional Court of the Russian Federation confirmed that the employer is not obliged to notify the Ministry of Internal Affairs, when changing the working conditions of a foreign national employee The company hired a foreign national employee and notified the Ministry of Internal Affairs, as prescribed by the law. In fact, the employee was allowed to work in another employer’s location. At the same time, the company did not amend the employment contract with the employee, and therefore did not notify the Ministry of Internal Affairs about this change. However, the company was fined for not reporting on the changed working conditions of a foreign employee. The company tried to challenge the fine, but the courts dismissed the claim, highlighting the fact that any employer is obliged to notify the Ministry of Internal Affairs about each time it engages a foreign national at work. The case came to the Constitutional Court of the Russian Federation. It confirmed that a foreign national employee can be engaged at work not provided for by the employment contract, when it is possible to formalize relevant changes, by amending the employment contract. In this regard, it is not required to send notifications to the Ministry of Internal Affairs about events such as the transfer of a foreign employee, a combination of positions, nor other changes in working conditions. Source: Resolution of the Constitutional Court of the Russian Federation, dated February 4th, 2020 No. 7-P 2. The Supreme Court of the Russian Federation indicated that, if a foreigner changes his place of residence in the Russian Federation, by his own decision, his employer will not be held liable The company was held liable, because a foreign national employee actually resided at a different address than the one that was registered with the migration authorities. The company decided to challenge the fine in court, providing evidence of the fulfillment of its obligations to provide housing. The Supreme Court concluded that the fact of foreign national's refusal to reside in the premises, provided by the company, does not indicate the presence of an offense in the actions of the inviting party. Source: Decision of the Supreme Court of the Russian Federation, dated January 27th, 2020 No. 303-ES19-25973<> Labour litigation <>1. The Supreme Court of the Russian Federation reaffirmed the standard approach: an employee’s appeal to a state body is a good reason for missing the limitation period Earlier, the Supreme Court of the Russian Federation had already expressed that, due to a combination of circumstances, an employee’s appeal, for the protection of the labour rights, to State Labour Inspectorate, can be considered a justifiable reason for being late and missing the limitation period. In this particular case, a similar conclusion was made in connection with the appeal of the employee, for the protection of labour rights, to the prosecution authorities. Based on the results of the consideration of employee’s applications for illegal dismissal, the prosecutor brought a protest to the employer about the cancellation of the dismissal orders. The employer had not fulfilled the requirements. The prosecutor, in the interests of the employee, applied to court. The employer stated that the limitation period had been missed. The lower courts upheld the employer and did not restore the term. The Supreme Court sent the case for a new trial. The court considered that, by applying to the prosecutor’s office, employees had legitimate expectations that their rights would be restored without necessity to go to the court. Source: Decision of the Judicial Chamber on Civil Cases of the Supreme Court of the Russian Federation, dated January 20th , 2020 No. 20-KG19-11 in case No. 2-329/2018 2. The Supreme Court of the Russian Federation clarified: filing a claim on unlawful dismissal, and/or other violation of rights, may become a good reason for missing the limitation period for applying to the court, for reinstatement at work The employee filed a claim to challenge the order on the staff redundancy and notification of forthcoming dismissal. The notice period had expired and the employee was dismissed, during the consideration of this case in court. By a court decision, the employee’s claim was dismissed. Further – the employee filed another claim to the employer demanding reinstatement at work, however, with a missed limitation period. The lower courts refused to consider the case on procedural grounds (they did not restore the term). The Supreme Court did not agree with lower courts, referring to the fact that the employee, hoping for the restoration of violated labour rights, without re-applying to the court, initially challenged the documents that served as the basis for dismissal. As a result, the Supreme Court of the Russian Federation restored the missed limitation period and sent the case back for consideration on its merits, at the lower court level. In another similar case, the Supreme Court of the Russian Federation admitted that if an employee, after filing a claim to recognize the dismissal as unlawful, applies to the court with a statement of claim for reinstatement at work, the reason for missing the limitation period, for applying to court, is good. The employee filed a claim to challenge the dismissal order. After the court upheld his claim, the employee filed another claim, requesting reinstatement at work. The lower courts indicated that the employee filed such a claim, but after the limitation period, and did not restore the term. The Supreme Court of the Russian Federation did not agree with this position and ordered a retrial, highlighting that the employee had initially applied to the court within the period prescribed by law, while he rightfully expected that his labour rights would be restored in full. Source: Decision of the Supreme Court of the Russian Federation dated March16, 2020 No. 25-KG19-15, Decision of the Judicial Chamber on Civil Cases of the Supreme Court of the Russian Federation, dated October 7th, 2019 No. 49-KG19-33<> We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practice: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
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Irina Anyukhina wrote a chapter for The Employment Law Review
The Employment Law Review, 11th edition by Law Business Research was released in late April. Annual guide is one of the most respected world reference in the world: it focuses on the characteristics of labour law in different jurisdictions. Leading law firms from 44 countries participate in preparing the publication. ALRUD law firm represents Russia. Irina Anyukhina, ALRUD Law Firm partner, Head of Labour and Employment practice, has prepared an overview of the most significant amendments to the labour legislation and related areas over the past year. The chapter speaks about foreign workers and new obligations for parties inviting foreign citizens to Russia, as well as on simplified rules for obtaining Russian citizenship. Special attention was paid to data protection. In addition, the article also touches important precedents in Russian practice.
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Update on the regulation and advertising of medicines in Russia
We would like to provide you with an update on some changes in the legal regulation of medicines in Russia made due to dynamic spread of the coronavirus (COVID-19). On April 3rd, 2020, there was enacted a federal law, according to which, licensed pharmacy organizations are permitted to sell remotely (online): Over-the-counter medicines (under the respective procedure to be set by the Russian Government) and Prescribed medicines (only within the emergency, as a temporary measure to be introduced by the Russian Government (if required) until December 31st, 2020). This new regulation provides for new business opportunities for pharmacy organizations and medicine manufacturers. At the same time, the Russian Federal Antimonopoly Service (FAS) scrutinizes the advertising of medicines where it is used a reference to therapeutic efficacy against COVID-19. In particular, in January 2020, an advertisement of the medicine Arbidol, which was released on the radio, stated that the medicine has therapeutic efficacy against 2019-nCoV (COVID-19). In March 2020, FAS found this advertisement illegal, since the medicine’s package leaflet did not contain the information on such therapeutic efficacy. Therefore, FAS issued an order to the advertiser to stop the violation. Besides, in February 2020, the similar advertisement of the medicine Remantadin at pharmacies was qualified by the regional subdivision of FAS as containing signs of violation due to the same reason. The advertiser removed the advertisement promptly and voluntarily. Under the Russian law, an advertisement of a medicine is allowed only within the limits of the information contained in a duly approved package leaflet of the medicine. Otherwise, such an advertisement will be deemed illegal and will lead to an administrative fine up to RUB 500,000 (approx. USD 6,556) for legal entities. Summarizing the above, we would like to emphasize the following: Although the permission for pharmacy organization to sell medicines remotely (online) is an obvious and expected step towards liberalization, it cannot be actually applied until the respective regulations are adopted by the Government. We recommend monitoring closely the regulations in this area. Taking into account the scrutiny of FAS, pharmaceutical companies should be more careful while advertising medicines, particularly, as a treatment of COVID-19. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practice: Intellectual Property Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1587589200000
COVID-19: Suspension of terms and other temporary migration rules in Russia
On April 18th 2020, the Russian President signed a Decree establishing a temporary procedure for hiring foreign nationals in Russia and suspension of migration terms. Temporary rules apply from March 15th until June 15th, 2020. The following rules apply during the named period: the validity period of migration documents for all foreign nationals, legally residing in Russia, is automatically extended (if such a period expires in the specified period); the period of temporary stay, temporary or permanent residence, migration registration, or registration at the place of residence, as well as voluntary departure in case of a decision on administrative expulsion, on deportation or transfer to a foreign state due to readmission, is temporary suspended for all foreign nationals of visa and visa-free countries; employers who observe the necessary sanitary and epidemiological measures will be able to hire both foreign nationals who arrived in Russia on a visa, but not having work permits, and foreign nationals who arrived in Russia from visa-free countries, and not having migration patents. Employers hiring foreigners from visa countries shall have permission to attract and employ foreign nationals; the maximum term of staying outside Russia is extended for foreign nationals having residence permits, temporary residence permits or certificates of a participant in the State program. Migration documents stated herein include: visas; residence permits; temporary residence permits; migration cards; work permits; patents; permissions to attract and employ foreign nationals, etc. Moreover, until June 15th, 2020 the following migration decisions are suspended: on the undesirability of stay; on administrative expulsion; on deportation; on cancellation of visas, work permits, patents, temporary residence permits, residence permits, etc. We draw your attention to the fact that, in the absence of special regulations, notifications on the conclusion/termination of an employment contract with a foreign national, as well as on compliance with the requirements for the payment of salary to highly-qualified specialists, shall be submitted within the deadlines established by law. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practice: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1587416400000
COVID-19: New limitations and digital pass system in Moscow and Moscow Region
In accordance with Decrees of the Moscow Mayor No. 42-UM dated April 10th, 2020 and No. 43-UM dated April 11th, 2020, visiting of most organizations is temporarily suspended and pass control is introduced, within the territory of Moscow. Resolutions of the Moscow Region Governor No. 176-PG dated April 10th, 2020 and No. 177-PG dated April 11th, 2020 introduced similar measures within Moscow Region. From April 13th to April 19th, 2020, in Moscow and Moscow Region, visiting of several territories and organizations is suspended. The full list of such territories/organizations is stated in the Appendix to the Decree of the Mayor No. 42-UM and the Appendix to the Resolution of the Governor No. 176-PG, respectively. An exception is stipulated only for persons who: provide protection and maintenance of facilities; support continuous processes, in accordance with technological features; provide calculation and payment of salaries. In Moscow and Moscow Region, the activity is suspended in the following areas: automotive industry; provision of food and drinks (except for takeaway services and delivery); operations involving real estate; professional, scientific and technical activities; law and accounting, management consulting; architecture and engineering design; advertising and market research; rental and leasing, including car rental (car-sharing services, taxi services); employment, staff recruitment; tourism; education; sports, recreation and entertainment; provision of personal services; production of clothing and furniture; construction; manufacture of finished products, etc. The restrictions do not apply to: organizations providing: goods, works and services for medical use, personal protective equipment, disinfectants; food essentials; construction (repair) of medical facilities, metro and railway facilities. organizations providing passenger transportation services, and having permission to carry out these activities within the territory of Moscow and/or Moscow Region. Subject to the coordination of the work regime with the Ministry of Industry and Trade of the Russian Federation and the Moscow Government, exceptions also include: organizations of the defense sector, aircraft industry; subsidiaries of Roskosmos and Rosatom corporations; organizations performing the state defense order; IT organizations ensuring activities of the abovementioned organizations. Organizations, that continue working, shall minimize the presence of persons ensuring the implementation of relevant activities, in accordance with technological features. Also, in accordance with the Decree of the Mayor No. 43-YM and the Decree of the Governor No. 177-PG, from April 15th, 2020, a digital pass system for movement by personal and public transport in Moscow and Moscow Region will start to operate. Citizens may apply for a pass starting on April 13th, 2020. From April 15th, movement by personal and public transport is possible only with a digital pass, or official identification card (e.g., a military identification card, a personal security card, etc.). Digital passes can be either for one day (e.g., for visiting medical organizations), or without restrictions, on the number of rides, for performing employment duties, or providing services (performing works) under civil law contracts. Employers must consider that: for movement, using any type of transport, employees shall obtain digital passes; an employee may obtain the pass in Moscow by applying to mos.ru, by calling the help desk +7 (495) 777-77-77, or by sending a message to 7377; in the Moscow Region - by applying on the website uslugi.mosreg.ru, by calling the help desk 8-800-550-50-30, or by sending a message to 0250; employees’ passes are valid until April 30th, 2020, with no restrictions on the number of rides and the route of movement. The digital pass issued in Moscow is also valid in Moscow Region. Accordingly, the pass issued in Moscow Region may be used for travelling on routes involving a visit to Moscow. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practice: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1586725200000
COVID-19: What employers need to know?
We would like to inform you on the new requirements for employers in Russia given the impact of COVID-19. Non-working week According to the Decree of the Russian President dated March 25, 2020, the period from March 30th is a nationwide paid week-off in order to minimize the consequences of COVID-19 in Russia. This measure should help ensure a regime of self-isolation of Russian citizens. In addition, we draw your attention to the fact that the home self-isolation regime is introduced from March 30, 2020 for all residents in Moscow and Moscow region, regardless of age, which shall significantly restrict traffic in the city. Who will continue to work? List of companies that continue working during the non-working week: continuously operating organizations (see tips below); medical and pharmacy organizations; organizations providing the citizens with food and essential goods (these also include those organizations that provide warehousing services, transport and logistics services in order to provide the population with food and essential goods and trade organizations); organizations performing emergency work in emergency situations, endangering the life or normal living conditions of the population (these include, in particular, organizations that produce personal protective equipment, disinfectants, medicines, medical devices, heat and television registrars, non-contact thermometers and air disinfection plants; enterprises producing materials, raw materials and components necessary for their production; organizations whose activities are related to the protection of public health and the prevention of the spread of coronavirus infection; organizations in the field of production and consumption waste management; organizations that provide housing and communal services to the population; organizations of petroleum products supply systems; organizations that provide financial services in terms of emergency functions); organizations engaged in emergency repair and urgent loading/uploading works and carry out transport services for the population; Russian Pension Fund and its regional authorities; Social Insurance Fund and its regional authorities; Compulsory Medical Insurance Fund and its regional funds; Public officers and municipal officers as well as media employees shall work upon the employer’s decision. Which organizations are continuously operating? The continuously operating organizations are those organizations whose suspension is impossible due to technical reasons. The organization itself determines whether it relates to continuously operating or not. Evidence that the company cannot stop its production cycle is: shift work schedule, as well as actually continuous activity on any non-working days (holidays and weekends), which is confirmed by the timesheet for the previous period. According to the recommendations of Rostrud (Russian employment authority), continuously operating organizations are organizations in which the suspension of activities on technical reasons is impossible, e.g., the organizations in the field of IT and telecom services, road industry, energy, heat supply, water treatment and sanitation; operating hazardous production facilities and in respect of which there is a permanent state control (supervision) regime in the field of industrial safety; organizations operating hydraulic structures; nuclear industry organizations; construction organizations, the suspension of which will endanger the safety, health and life of people; agricultural organizations engaged in spring field work. Can the employer oblige employees to work during the non-working week? How to formalize the work during the non-working regime? Employees of continuously operating organizations, as well as organizations listed in the previous paragraphs, automatically continue working during the non-working week in ordinary regime. The company shall formalize its decision to continue the operations in the internal order and provide employees who continue working in the ordinary regime with the written statements that they are allowed to continue working in the ordinary regime. Employees of organizations that are not related to organizations that automatically continue working during the non-working regime cannot be obliged to work during the non-working week, however they can work remotely upon mutual consent. The employee’s transfer to the remote work during the non-working week shall be formalized by additional (amending) agreement to the existing employment contract. Transfer to the remote work also implies amending the system of control over performance of job duties by employees who work remotely (e.g., amending the requirements for the reporting system, staying online, being accessible, monitoring at workplaces). Particular attention shall be given to the introduction of measures to ensure protection of commercial secrets and confidential information, which requires formalization by the local policies (local normative acts), internal corporate procedures, and in the additional agreements with employees. In view of Russian data protection laws, including in cases when employees may use personal equipment for remote work (e.g., computers, cell phones), it is important to introduce respective amendments to existing internal policy on processing of personal data, policies on employees’ monitoring at workplaces, obtain new consents. According to Rostrud, in view of electronic communications with remote employees, the electronic workflow with such employees shall be formalized by exchanging electronic images of documents, if necessary, followed by their execution in the manner stipulated by the Russian law. Can the employer engage to work the employees of organizations not related to continuously operating organizations with double payment of salary in accordance with the law? No, Russian labour laws do not regulate engagement to work during such rest periods as “non-working days”. As noted earlier, the non-working week regime was announced specifically for the purpose of self-isolation of citizens. That means that the engagement of employees of organizations that are not continuously operating and who do not work remotely to the work during the non-working week can be qualified as a violation of the Decree of the President of the Russian Federation and Decrees of the Moscow government. This violation may lead to liability for the company and its officials. Should you have any questions, do not hesitate to get in touch. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1585688400000
COVID-19: What should employers take into account during the non-working week and general self-isolation regime?
The Ministry of Labour and Social Protection of the Russian Federation published, on its website, Recommendations (and Additions to them) for employees and employers, in connection with the decree of the President of the Russian Federation of 25.03.2020 No. 206 “On declaring non-working days in the Russian Federation”. In addition, from March 30th, 2020, a general self-isolation regime has been introduced for all residents of the city of Moscow and the Moscow Region, regardless of age. The end date of the general isolation regime is still unknown. Employers should take into account the following innovations: Who will continue working? The Decree and Recommendations provide an extensive list of exceptions to the general rule on declaring non-working days. At the same time, employees of bodies (organizations) – exceptions (paragraphs 2-5 of the Decree) who continue to carry out labour (official) activities, under an agreement with the employer, can work distantly, if their official duties, organizational and technical conditions of work allow it. Non-working days do not apply to employees who ensure the continuity of the production and technological cycle in the industries listed in the paragraph 4 of the Recommendations. Employers have the right to determine, with the consent of employees, the need for a particular employee to participate in the continuous-production process. Who can work distantly? Employees who work distantly, in agreement with the employer, have the right to continue this regime of work during the period of validity of the Decree, following mandatory compliance with the requirements of prevention of new coronavirus infection. The transition to a remote-operation regime, during the period of validity of the Decree, can be made by exchanging electronic documents, if necessary, followed by their registration, in accordance with the established procedure. Salary A non-working day does not apply to weekends or holidays, so payment must be made in the usual amount. Vacation If the employee is on vacation, the non-working days from March 30th to April 3rd, 2020 are not included in the number of vacation days and the vacation for these days is not extended. Home self-isolation mode Leaving the apartment is allowed in the case of: - travel to and from the place of activity, including work that is not suspended, in accordance with the Decree of the Mayor of Moscow / Resolution of the Governor of the Moscow Region, - performing activities related to movement within the territory of Moscow, if such movement is directly related to the implementation of activities that are not suspended, in accordance with the Decree of the Mayor of Moscow / Resolution of the Governor of the Moscow Region, including the provision of transport and delivery services. Social distancing Authorities, organizations and individual entrepreneurs, as well as other persons whose activities are related to the joint stay of citizens, are required to ensure the social distance, apply special markings and establish a regime of admission and stay in buildings and on the surrounding territory. Employers who have decided to work distantly for a period of days off, or a general regime of self-isolation, should comply with the following rules: Any changes in the working conditions of employees must be formalized, by signing an additional agreement to the employment contract (in the case of a change in the place of work for remote work from home), or formalization of distant work. The ability to work distantly is recommended to be regulated in the internal labor regulations. When employees are transferring to work from home, it must be remembered that the employer continues to be responsible for ensuring safe working conditions. Therefore it is necessary to regulate this issue at the local level (to amend local regulations) and to fix the relevant rights and obligations of the parties, in employment contracts with employees. Particular attention should be paid to protecting trade secrets and confidential information. To ensure this regime, it is recommended to update/adapt/create the necessary system of documents, establishing the corresponding regime and responsibility for its violation. ALRUD Law Firm offers a number of integrated solutions for the development of local regulations and other company documents to ensure the implementation of measures to transfer workers to work from home, as well as an online training program for employers and employees. We will be happy to support you. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1585645200000
COVID-19: Temporary procedure for the extension of migration terms for foreign citizens
On March 19th 2020, The Russian Ministry of Internal Affairs (“Ministry”) announced that foreign citizens, present in the territory of Russia, may apply for an extension of their migration term. Foreigners shall submit an application to the nearest territorial department of the Ministry. Upon the application: visas of foreign citizens will be extended (even if their terms have expired); the term of temporary stay will be extended for foreign citizens, with a visa-free regime of entry (even if the term has expired at the time of the application); residence permits and temporary residence permits will be extended in case of expiration. The Ministry will also issue permits to engage foreign employees and work permits for foreign citizens present in the territory of Russia. In addition, foreign citizens may apply for new patents, without leaving Russia. Foreigners, who missed the deadline for prolongation of the patent, will not incur administrative liability. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1584910800000
COVID-19: Russian Government established entry ban for foreign nationals
On 16th March 2020, the Russian Government ordered the temporary restriction of entry into the country by foreign nationals and stateless persons, including foreigners entering the Russian Federation through Belarus, as well as applying to Belarusian nationals. According to the current regulation, the restriction is valid from 00:00 March 18th, 2020 until 00:00 May 1st, 2020. As of March 18th, 2020, the migration authorities will stop accepting applications for work permits and work visa invitations, as well as student visa invitations, for all foreign nationals. As of March 18th, 2020, issuance of all types of work permits, including HQS work permits, will also be temporarily suspended. As of March 18th, 2020, Russian consular offices abroad will stop issuing all visas for foreign nationals, with the exception of diplomatic, official service, ordinary business visas to the persons specified below, as well as for ordinary private visas to foreign nationals traveling to the Russian Federation in connection with the death of a close relative. Issuing of electronic visas is also suspended. The following categories of individuals are exempted from the entry restriction: persons permanently residing in the Russian Federation; persons traveling in transit through the standard air transit routes and interchanges; diplomats and their families; professional car drivers of international automobile traffic; aircraft crew members; crew members of sea and river vessels; train and locomotive crews of international rail services; members of official delegations; persons having diplomatic, official, ordinary private visas issued in connection with the death of a close relative. These measures are temporary, we are following closely the situation and will inform you about any further development. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1584392400000
New terms of storage for HR documents
As of February 18th, 2020, the law established new terms of storage for HR documents. The following storage terms are extended as follows: vacation schedules - 3 years (instead of 1 year), record books, registers, record cards, vacation databases - 5 years (instead of 3 years). At the same time, some other storage terms are reduced as follows: documents relating to disciplinary actions – 3 years (instead of 5 years); applications for the need of foreign employees - 1 year (instead of 5 years); documents on working conditions and measures to improve working conditions and Health & Safety of the organization - 5 years (instead of permanent storage); record books, registers, industrial accident databases, accident records - 45 years (instead of permanent storage). The term of storage of certain documents (e.g., employment contracts, documents relating to employment and dismissal) will depend on the moment of the paperwork finalization: if it was finished by January 1, 2003, then such documents shall be preserved for 75 years; if later than that date: for 50 years. Additionally, the storage terms have been also set for the following new types of documents: notifications, warnings given to employees – 3 years; applications of employees for the issuance of employment documents – 1 year; record books, registers of instructions on Health & Safety – 45 years. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1582059600000
ALRUD Law Firm experts held a seminar on electronic document management in labor relations
On February 18th, ALRUD held a seminar on the topic “Paper-to-Digital” on the use of electronic document management in labor relations, taking into account the adopted and planned legislative changes. Irina Anyukhina, Partner and Head of Labour and Employment practice, opened the seminar. Anastasia Petrova and Margarita Egiazarova, ALRUD Senior Consultants as well as Dmitry Simbirtsev, ALRUD Senior Attorney and Roman Ramodin, ALRUD Attorney contributed as our event speakers. Our experts detailed current court decisions, trends and the most recent amendments in judicial practice, explained the position of state bodies and key features of electronic document management systems in personnel records. Our speakers paid special attention to the topic of personal data protection, talked about the use and regulation of automated systems for HR purposes, as well as the localization of personal data. Our seminar was held in an interactive format – an active conversation between the audience and speakers. The guests of our seminar had an opportunity to share their experience, and receive answers to questions of interest, in terms of their specific requirements. Due to the large number of people wanting to take part in the in-person event, an online broadcast was launched. This approach allowed us to increase significantly the number of participants.
1581973200000
Irina Anyukhina provided an article for the European Employment Law Update 2020
Annual European Employment Law Update is released by leading labor law experts from 34 jurisdictions. The editors publish the most important legislative changes in labor law in European countries, focusing on those that are likely to affect businesses in 2020. Irina Anyukhina, ALRUD Law Firm partner, heading its Labour and Employment practice, prepared a review of legal developments relating to the Russian labour law, in keeping with the interests of international and Russian readers. This year is marked by the rapprochement of the Russian and international communities. Digital HR, increased transparency, and regulation of self-employed professionals are coming to the fore. Separately, the article refers to the visa-free entrance to Russia for the UEFA 2020 European Football Championship Fan ID owners.
1580677200000
Reporting to Russian Pension Fund: new rules, now digital
As of 2020, legislation establishes certain procedure to set out a digital register of employees' work experience. Along with starting digital recording of employees' work experience, the law also prescribes a notification obligation to companies (employers): The information about employees’ work experience should be included in a specific unified form SZV-TD. This form may be completed by hand (in case there are less than 25 employees) or through HR application 1C or similar. During the transition period (i.e. in 2020), the company shall file form SZV-TD regarding each employee (in the event of any HR related events – hiring, transfer, dismissal, etc.) no later than the 15th day of the following month. The first report shall be provided to the Russian Pension Fund no later than February 17, 2020. The report shall be filed if one of the above specified events (i.e. an employee’s employment, transfer or dismissal)occurred in January 2020. Starting from 2021, companies will be obliged to file the form containing information on an employee’s hiring and dismissal no later than on the next business day, following the day of the event. As concerns employee’s transfer, in 2021 companies will be obliged to file such a form no later than the 15th day of the following month. In case the company provides the information (e.g. on employee’s transfer to another job position) for the first time, the company shall also include all information regarding employee’s work experience with a company (i.e. all information related to this employer, which is specified in the hard copy of the employee’s labour book). In any case, the company is obliged to complete the digital register of employees' work experience by February 15, 2021 for all employees. Failure to comply with the above-specified obligations may lead to an administrative liability of the company. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1580677200000
New rules of recording labour activities of employees
The Federal Law “On Amendments to the Labour Code of the Russian Federation with regard to the regulation of recording labour activities in electronic form” (hereinafter - “Law”) has been signed by the President of the Russian Federation. It comes into force on January 1st, 2020. The Law proposes that employers must record all information, about labour activities of their employees, in electronic form and submit such information to the information system of the Pension Fund of the Russian Federation (hereinafter - “PFR”). At the same time, hardcopy labour books will be maintained after December 31st, 2020 only upon employees’ applications. Employees shall be notified about amendments and the application requirement by June 30th, 2020. However, even in the absence of the respective requests, the employer shall continue keeping the hardcopy labour book of the employee. The Law establishes that for all employees, who will be employed for the first time after December 31st, 2020, labour books will only be maintained in electronic form. However, the employees, who requested the record in written form, will enjoy their right, even after a subsequent change in employment. Employers shall submit monthly reports of the labour activity of all employees to the PFR, no later than 15th day of the following month. If there were no changes during the month, then for the current month, it is not necessary to submit information to the PFR. Additionally, article 5.27 of the Code of Administrative Offenses of the Russian Federation will be supplemented by a new part, establishing sanctions for failure to perform obligations, to submit reports, or for the presenting of distorted data by employers. All data in the Pension Fund system will be open only to governmental bodies. Therefore, it will be possible to find out about labour experience of individuals only from an employee who can provide a personal account statement from the Pension Fund database, or the respective information from a previous employer. Thus, employers will be obliged to provide their employees with a certificate of labour experience at the termination date. The upcoming changes will mitigate the risks of potential disputes with dismissed employees, about the non-provision, or untimely provision, of a labour book and simplify the document flow of the companies. Source: https://sozd.duma.gov.ru/bill/748684-7 We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1577221200000
Compensation for fatal accidents at work - expansion of the recipient list
As of December 2019, the list of persons entitled to monetary compensation, in the event of the death of an employee in an industrial accident has been extended. Respective amendments were introduced into the Federal Law “On compulsory social insurance against accidents at work and occupational diseases” and covered both those who are entitled to receive a lump-sum insurance payment and persons who receive monthly insurance payments. The parents of the deceased employee are now listed among the recipients of a lump-sum insurance payment. Previously, they could receive compensation only under certain conditions (e.g. if they did not work and took care of those family members, who were dependents of the deceased employee). The amount of the lump-sum insurance payment is 1 million rubles, and if the deceased employee had a wife, children, and parents, then this amount should be proportionally divided between them. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1576098000000
Forced recovery of unpaid salaries - amendments to the Labour Code
On 21st November 2019, concluding its third reading, the State Duma of the Russian Federation adopted the Draft Law that grants state labour inspectors the out-of-court authority to collect, from employers, accrued but not paid salaries. The Draft Law establishes the following procedure for recovery of unpaid salaries: based on results of an audit, the inspector issues an order to eliminate violations related to remuneration; in the case of failure to fulfill the instructions stated in the order, the inspector makes a decision on compulsory enforcement of the order and provides the employer with such a decision, within 3 working days from the day of its adoption; the employer is entitled to challenge the respective decision in court, within 10 days from the date of its receipt; if the decision is not executed and the term for its appeal has expired, an electronic copy of that decision is submitted to bailiffs; bailiffs initiate enforcement proceedings and recover outstanding amounts from the company’s accounts. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1574802000000
New rules of regulation of agency work
The Ministry of Economic Development of Russia has published two Draft Laws regulating the agency work requirements: Draft of Federal Law “On Amendments to the Labour Code of the Russian Federation, with regard to the regulation of labor of employees temporaril assigned by an employer, who is not a private employment agency, to other legal entities, under an agreement on the provision of the labour of employees (personnel)”; Draft of Federal Law “On amendments to Article 18.1 of the Law of the Russian Federation “On Employment in the Russian Federation”. The first Draft Law establishes the regulation of the relations, arising due to the conclusion of the agreement on the provision of the labour of employees, by the legal entities not being private employment agencies. Legal entities, not being private employment agencies, which are allowed to perform the activities on provision of the labour of employees, in accordance with the Employment Law of Russian Federation, will be able to send their employees to other legal entities. The Draft Law requires that the sending party and the host party should enter into the agreement covering the provision of the employees. Further, the employer (the sending party) must enter into an additional agreement to the employment contract with the respective employee, which shall include the following mandatory provisions: Information about the host party, including the name of the legal entity; Place and date of conclusion of the agreement on provision of employees, its number and validity term; Terms and conditions of the employee’s performance of labour function; Term of the provision; Place of work; Details of the work and rest time; Remuneration conditions for the term of work, at the host party's entity. The Draft Law requires obtaining the consent of the directed employee and prohibits including, in the additional agreement to the employment, contract terms that may worsen the employee's position, as compared to that required by the labour legislation. The Draft Law also sets out that the sending party shall check whether the employees perform their labour function, indicated in the employment contracts, with them and verify the compliance with the Russian labour legislation. The Draft Law was posted on the Federal Portal of the draft regulatory legal acts on May 24, 2019 and is currently at the stage of public discussion and anti-corruption review. Amendments proposed by the second Draft Law to the Employment law, posted on the Federal Portal of the draft regulatory legal acts on August 26, 2019, allows to provide the personnel to the companies - parties to the shareholders’ agreement concluded with the sending party, or its affiliate, as well as the legal entity in respect of which the sending party, or its affiliate, has concluded the shareholders agreement. In addition, companies (or their affiliates) who entered into a joint operation agreement and on its ground created an association (which is not a legal entity), which is a party to the production sharing agreement, may send personnel to other participants of such association (or affiliates thereof). Besides, there are some restrictions, which will be applied to the parties not being private employment agencies: such companies shall not have any salary arrears; they shall not be subject to the simplified taxation system. Source: https://regulation.gov.ru/p/91596; https://regulation.gov.ru/p/94277 We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1573592400000
Visa-free entrance to Russia for 2020 UEFA European Football Championship Fan ID owners
We would like to remind you that due to the 2020 UEFA European Football Championship (“Euro 2020”) in Russia in summer 2020, foreign nationals who have Fan ID will have an opportunity of visa-free entrance to Russia. Fan ID is a document that allowed entrance to Russia and its stadiums during the 2020 UEFA European Football Championship. Under the Law, foreign nationals holding a Fan ID, who visited Russia during Euro 2020, have free entrance to Russia from May 30, 2020 to July 3, 2020. In addition, the Law establishes the right of free exit from Russia until July 13, 2020 for foreign nationals holding a Fan ID, who visited Russia from May 30, 2020 to July 3, 2020. Such foreign nationals are not required to obtain a visa in order to visit Russia for tourist purposes during the period established by law. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1571259600000
Irina Anyukhina was interviewed by Best Lawyers
Irina Anyukhina, ALRUD Partner and the head of Labor and Employment practice, was interviewed by Phillip Greer, CEO of Best Lawyers. During the interview, Irina discussed key changes to the Russian labor legislation. One of important topics of the discussion was the issue about the effect of international trends on law enforcement practice in Russia. In particular, Irina commented on the issue of equal pay for work of equal value in Russia. In addition, other issues of international trends were explored during the conversation: such as the effect of the #MeToo campaign in Russia. Follow the link to learn more.
1571086800000
New rules for notification of the Employment Center
We inform you that from September 1, 2019, the Moscow Employment Center recommends providing information on dismissal of employees through the Interactive Portal of Moscow Employment Center. In order to gain access to the Interactive Portal, it is necessary to register the “Personal Account” in the relevant territorial department of the Employment Center. Through the Interactive Portal, companies will be able to complete forms to provide the necessary information on each employee subject to dismissal. The submission of information in electronic form is considered the fulfillment of the obligations of the employer to provide the specified information. We remind you that non-notification, incomplete or untimely notification of the Employment Center may lead to administrative liability of the company. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1568926800000
Digest of key judgments of the Higher Courts of the Russian Federation 2018/2019
1. Maternity leave and childcare leave, as well as pregnancy, may be recognized as justified reasons for failure to file a claim with the court on time In 2019, the Supreme Court of the Russian Federation repeatedly pointed out that the pregnancy of a worker, as well as the fact of being on maternity leave and childcare leave, are justifiable reasons for failure to file a claim with the court on time. The key argument of the Court, in such cases, is that the priority duties for the employee, during these periods, are to protect her health during pregnancy, protect the interests of her young children and take care of them. In one case, an employee filed a claim to the court with the requirement to provide bonus payment for past periods of work. The company pointed out that the employee failed to file a claim with the court to resolve an individual labour dispute, as provided for in article 392 of the Labour Code of the Russian Federation. In turn, the employee asked the court to recognize the reason, for failure to file a claim, as justifiable and restore it, indicating that she has three children and, during the disputed period, she was on maternity leave as well as on childcare leave. In another case, the employee did not agree with the dismissal, but she could only go to court a few months after the termination of the contract. One of the reasons for failure to file a claim, with the court on time, was that she was on maternity leave and went to court only after the birth of the child. The Supreme Court of the Russian Federation decided that, in both cases, lower courts that refused to recognize the reasons for failure to file a claim, with the court on time, as justified reasons did not take into account the set of circumstances, due to which the employee could not file a claim with the court. In particular, such circumstances, which are provided by the Constitution of the Russian Federation benefits of women’s rights on maternity, rights to care and upbringing of children, as well as legislative provisions, allow women, combining labour activity with family responsibilities, to have equal rights to realize themselves in labour activity. In both cases, the Supreme Court of the Russian Federation recognized the reasons of employee’s failure to file a claim, with the court on time, as justified reasons and sent the cases for new consideration. Source: Decision of the Judicial Chamber on Civil Cases of the Supreme Court of the Russian Federation dated January 28, 2019 No. 78-KG18-74; Decision of the Judicial Chamber on Civil Cases of the Supreme Court of the Russian Federation dated August 5, 2019 No. 16-KG19-21 2. The Supreme Court of the Russian Federation recognizes the fact of the employee’s appeal to State Labour Inspectorate as a justified reason for failure to file a claim with the court on time The time limit for going to court to resolve an individual labour dispute can be prolonged by the court, on the basis of all the circumstances that did not allow a person to file a claim with the court on time, for the protection of the violated labour law. The Supreme Court of the Russian Federation accepts the fact of the employee’s appeal, for the protection of labour rights, to the State Labour Inspectorate, as one of such circumstances. Upon dismissal, an employee filed a claim to the State Labour Inspectorate, where he was informed about the necessity to file a claim to the court. The employee failed to file a claim with the court on time. The first and second instances supported the employer and the former employee’s rights were not restored. The Supreme Court of the Russian Federation sent the case for the new consideration. According to the Court, the former employee conscientiously expected that he would be able to restore his rights through the State Labour Inspectorate. The reason for failure to file a claim, with the court on time, was recognized as a justified reason. Source: Clause 10 of the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2019) (approved by the Presidium of the Supreme Court of the Russian Federation dated July 17, 2019) 3. The State Labour Inspectorate is not authorized to charge an employer with administrative liability, in the form of fine, for violation of the procedure of imposition of disciplinary sanction The Supreme Court of the Russian Federation declared out that The State Labour Inspectorate is not authorized to charge an employer with administrative liability, in the form of fine, for violation of the procedure of imposition of disciplinary sanction. This conclusion is based on the fact that the State Labour Inspectorate is not entitled to consider labour disputes. In this case, The State Labour Inspectorate charged an employer with administrative liability, in a form of fine for the fact that, according to the official of the labour inspectorate, the employee was unlawfully prosecuted, due to non-compliance by the employer with the requirements of the disciplinary procedure. The company appealed the decision of the State Labour Inspectorate, the Court allowed the appeal. Source: Resolution of the Supreme Court of the Russian Federation dated January 18, 2019 No. 19-AD18-32 4. The Supreme Court of the Russian Federation clarified the procedure of reimbursement of damages from an employee The Supreme Court of the Russian Federation confirmed that the obligation of an employee, including a former employee, to compensate for the damage caused to the company, including cases of the conclusion of an agreement between the parties on voluntary compensation for material damage. Hence, the requirements of the Labour Code, regulating the material liability of the parties, are implied for such relations. In this case, a former employee, found to have stolen funds from the cash desk and the company, concluded an agreement on the reimbursement of these funds. Upon the employee’s refusal to refund part of the amount, the company filed a claim with the court. The employer demanded recovery of the rest of the debt and a penalty for delay in payment, according to the rules of the Civil Code of the Russian Federation. The Supreme Court did not support this approach. It was necessary to charge the former employee with material liability and conclude an agreement with him on damages, according to the rules of the Labour Code of the Russian Federation. The case was sent for the new consideration. Source: Decision of the Judicial Chamber on Civil Cases of the Supreme Court of the Russian Federation of 06.06.2019 No. 9-KG19-5 5. The Russian Constitutional Court specified legal options for providing employees, dismissed due to liquidation, with payments The Constitutional Court of the Russian Federation recognized the legislative provision, which deprives an employee of the opportunity to receive severance payment when the company is already liquidated, as unconstitutional. In this regard, before the Russian legislator amends the provisions of the Russian legislation, it is recommended that employers comply with one of the following options: increase the amounts of the severance payment for employees dismissed due to liquidation (e.g., by stipulating the respective amount in the employment contract, or collective bargaining agreement); or use civil law mechanisms, which are in compliance with the Russian legislation. In this case, an employee was dismissed due to a company’s liquidation. The employee was not able to find a new job within two months following the date of dismissal. In addition, the employee could not file an application, to his former employer, to provide the severance payment for the period of employment, since the liquidation procedure of the company had been completed. The employee claimed that the record of the company’s liquidation was illegal, as specified in the Unified State Register of Legal Entities, due to the company’s outstanding debts to creditors. However, the employee’s claim was denied, since the liquidation procedure of the company was in full compliance. Source: Resolution of the Constitutional Court of the Russian Federation dated December 19, 2018 No. 45-P 6. The Supreme Court of the Russian Federation defined the difference between a service contract and an employment contract The Supreme Court of the Russian Federation identified the differences between a service contract and an employment contract. Under a service contract, the contractor shall: maintain the position of an independent economic entity; work at his, or her, own risk. Under an employment contract, the employee shall: be obliged to perform work required to perform a certain labour function; be included in the company’s staff; comply with the established working regime; work under the control and guidance of the employer; not bear the risks connected with performance of the employee’s work. A plaintiff filed a claim to the court on recognition of a service contract as an employment contract. The Supreme Court of the Russian Federation determined that the contract between the plaintiff and the company contained the provisions which are typical for employment contracts (e.g. workplace, obligation to comply with the internal labour regulations). The Supreme Court of the Russian Federation pointed out in its Resolution that the crucial issue is to clarify whether there were any features of employment relations between the parties, rather than how relations between the parties were formalized. Source: Resolution of the Supreme Court of the Russian Federation dated January 14, 2019 No. 5-KG18-259 7. The company must adhere to the selected salary-indexation mechanism The Supreme Court of the Russian Federation confirmed its clarification that indexation is not the only way to increase the level of salary. Commercial organizations, without state participation, have the right to independently choose a way to increase the real level of salaries of their employees. However, after selecting a specific mechanism, it should be followed. In that case, according to the policy on indexation, the salary indexation was recognised as a method of increasing an employee's salary. In a dispute with an employee, the company pointed out that the employee was provided with bonus payment, so the company complied with requirements of Russian law related to salary indexation. The Supreme Court of the Russian Federation did not agree with this position and sent the case for a new consideration, as the employer violated the selected salary-indexation mechanism. Source: Decision of the Judicial Chamber on Civil Cases of the Supreme Court of the Russian Federation of 08.04.2019 No. 89-KG18-14 8. The company may be fined for non-compliance with the procedure of dismissal of a foreign employee The Supreme Court of the Russian Federation determined that violation of the notification procedures indicates a company’s failure to fulfill its obligations, which may lead to administrative liability. The company timely submitted, to the Ministry of Internal Affairs, information, about the termination of the employment contract, with a foreign employee. However, the notification contained several errors, for which the company was subject to administrative liability, in the form of a fine. The reason for holding the employer liable was that the notice submitted did not comply with the form, established by law. The company referred to the insignificance of the offense. However, the Supreme Court of the Russian Federation agreed to charge the organization with administrative responsibility and declared that there were no grounds for declaring the offense insignificant and, as a result, relieving the organization from administrative responsibility. Source: Resolution of the Supreme Court of the Russian Federation of December 27, 2018 in case No. 127-AD18-6 9. It is not possible to recover court fees from an employee, even if the court did not satisfy the employee’s claim The Supreme Court of the Russian Federation recognised that the Labour Code stipulates that employees are exempted from duties and court fees. This rule is established for providing individuals with additional benefits, while filing a claim. In one case, the services of a forensic handwriting expert were contracted as part of the labour dispute between an employee and a company. The company paid compensation for provision of this expertise. When the company won a court case, it tried to recover compensation for the expertise from the employee. In another case, a company tried to reimburse the costs of legal services from an individual, who had lost a dispute on recognition of relations as employment relations. In both cases, the Supreme Court of the Russian Federation recognised that the Russian legislation does not allow recovery of any court fees, from a plaintiff who has filed a claim in relation to an issue, which has arisen from employment relations, even if a company managed to win its court case. Source: Decision of the Supreme Court of the Russian Federation dated December 17, 2018 No. 3-KG18-15; Decision of the Judicial Chamber on Civil Cases of the Supreme Court of the Russian Federation dated July 15, 2019 No. 75-KG19-3 10. Courts shall determine the existence of grounds of repeated non-performance by an employee of his/her job duties, without justified reasons The Supreme Court of the Russian Federation Court had identified the necessity to identify grounds of repeated non-performance by an employee of his/her job duties, without justified reasons. In one case, the company dismissed an employee for repeated non-performance of its internal rules, in part of the work schedule. The reason for dismissal was the fact that the employee was absent from the workplace for a short time (less than 2 hours during each day) for 3 different business days. The employee pointed out that the employer failed to familiarize her with local practice, establishing the working hours. At the same time, the employer stated that the working regime was published in an electronic journal and employee was obliged to become familiarized with such journal at least twice a day, and in addition, the working regime was discussed at meetings with employees. The Supreme Court of the Russian Federation did not accept, as evidence, the electronic familiarization with the working hours. In addition, the Supreme Court of the Russian Federation decided that the employer’s actions on preparation and issuance of several disciplinary acts, regarding to the absence of an employee from the workplace, several orders for conducting an internal investigation, several orders for imposing disciplinary sanctions and an order to terminate an employment contract could be considered to be the employer’s intentional actions, aimed to dismiss an employee. In another case, an employee violated labour discipline. He was reprimanded, and then he was dismissed for a disciplinary offense committed by him earlier. The courts of first and second instance supported the employer, but the Supreme Court of the Russian Federation did not agree with them. According to the Supreme Court of the Russian Federation, in the period between reprimand and dismissal, the employee did not violate labour discipline - that means that the repeatability criterion was not met. Source: Decision of the Supreme Court of the Russian Federation dated March 25, 2019 No. 5-KG18-305; Decision of the Supreme Court of the Russian Federation dated April 08, 2019 No. 18-KG18-270 11. Charging an employer with liability for violation of traffic rules committed by an employee The Constitutional Court of the Russian Federation determined that there is a presumption that the owner of the vehicle is at in the vehicle while an administrative offence is committed. The fact that the driver used the vehicle, without the permission of his employer, does not relieve the owner of this vehicle (i.e., the employer) from administrative responsibility. According to the Constitutional Court of the Russian Federation, the employer must bear the risks and consequences of not providing proper control over his employee. Source: Resolution of the Constitutional Court of the Russian Federation dated January 18, 2019 No. 5-P 12. The size of "Golden parachute" may not be arbitrary, nor violate the legal interests of the company The Supreme Court confirmed that the size of "Golden parachute" (severance benefit) of the head of the organization should correspond to the remuneration system of the company and may not be arbitrarily large. In this case, the parties provided that, in case of early dismissal by decision of the shareholders, the General Director shall receive a salary for the period remaining until the expiration of the term. Despite the fact that the employment relationship, with the Director, was terminated nine months before the expiration of his term, the company paid him only the standard severance benefit, equal to three times average monthly earnings. The General Director filed a claim to the court. The company argued that the shareholders did not consent to the increased compensation, and the Chairman of the General meeting, when signing the employment contract, abused his/her authority. The Supreme Court upheld the company’s claim, indicating that the increased compensation was not set out either in the Charter, or in local regulations, or in the resolution of the General meeting on appointment of the General Director. Source: Definition of Judicial Chamber on Civil Cases of the Supreme Court of the Russian Federation of 08.04.2019 No. 81-KG18-27 We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1568322000000
New forms of migration reports and applications
We inform you that from September 9, 2019, new forms of the migration reports and applications to be submitted by the companies employing foreign nationals will come to force. The new forms were approved by the Order of the Ministry of Internal Affairs of the Russian Federation¹. The following obligatory reporting forms are being changed, namely: Quarterly notification on salary payment to the foreign highly qualified foreign specialist; Notification of the conclusion / termination of employment contract/service contract with a foreign national. All reports submitted after September 9 should be prepared in a new form. Violation of the established form of the notifications may entail an administrative fine of up to RUB 1,000,000 or administrative suspension of the company’s activity for up to 90 days. A new form is also being introduced for application on engagement of a highly qualified foreign specialist. At the same time, notifications and applications submitted before September 9 in the old form will be valid. Repeated submission of such forms is not required. We also remind you that the Supreme Court of the Russian Federation² confirmed that the timely submission of notifications in a non-established form is a violation of the requirements of the law and entails administrative liability. ¹ Order of the Ministry of Internal Affairs of the Russian Federation dated 04.06.2019 No. 363 'On approval of the application form of a foreign citizen (stateless person) for attracting him as a highly qualified specialist and the procedure for filling it out, as well as the forms and procedures for notifying the Ministry of the Interior of the Russian Federation or its territorial body on the implementation by foreign citizens (stateless persons) of labor activity in the territory of the Russian Federation' ² Resolution of the Supreme Court of the Russian Federation dated December 27, 2018 with regard to the case No. 127-AD18-6 We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1567717200000
1Q 2019: key developments in Russian migration legislation
In this digest, we review key developments in the Russian migration legislation for the first quarter of 2019. 1. The Russian Government updated the list of documents required for the migration registration of foreign nationals Starting from March 20 of 2019,the Ministry of Internal Affairs extended the list of documents required for the migration registration of foreign nationals. Now, a copy of the document confirming the right to use residential premises and other premises provided for actual residence of a foreign national is required in addition to the notice of arrival of a foreign national, copies of all pages of his/her passport containinga stamp confirming crossing the Russian border,and a migration card. In case a foreign nationalisregistered at their employer’s address, in addition to the standard set of documents, it is necessary to provide the Ministry of Internal Affairs with copies of the employment contract or civil service agreement confirming that the foreign national performs work or another activity for the company. Furthermore, some cases will require submission ofan official letter from the company’s head. For the migration registration of foreign nationals from the Eurasian Economic Unionand their family members, it is necessary to provide a copy of the employment contract or civil service agreement with copies of the documents confirming family relations of such foreign national and his/her family members. The new version of the migration registration rules confirmed the possibility of submitting documents required for the migration registration of foreigners directly to the Ministry of Internal Affairs, through the multifunctional center or the Russian Post. 2. Checklists to be used during migration inspections Starting from March 11 of 2019, the Ministry of Internal Affairs of the Russian Federation started to use special checklists while conductingaudits of Russian migration legislation compliance by companies. There are 10 questions in the checklist for employers who hire foreign nationals. In particular, the checklist contains questionsregarding the type of a contract concluded with a foreign national, the company’s compliance with obligations related to different types of notifications tobe submitted to the Ministry of Internal Affairs, theexistence of grounds for a foreign national to perform work in Russia without a migration permit, etc. A specialchecklist is devisedfor companiesinviting or hostingparties of foreign nationals coming to Russia for different reasons. 3. The new rules of the simplified obtainment ofRussian citizenshipcome into force Starting from March 29 of 2019, the new procedure of simplified obtainment ofRussian citizenship came into forcefor selectcategories of foreign nationals. According to the amendments, onhumanitarian groundsthe Russian President can determine categories of foreign nationals who may obtaincitizenshipstatus throughthe simplified procedure. The amendments also provide for a simplified procedure for foreigners who participate in the State program for facilitating the voluntary resettlement in the Russian Federation of ethnic Russians living abroad. These persons have the right to apply for Russian citizenship under the simplified procedure; in particular, if they have a temporary residence permit or permanent residence permit, they are registered at the place of residence or at the place of stay in aRussian region included inthe State program. 4. The Ministry of Internal Affairs finalized the draft Decree of the Government of the Russian Federation on the obligations of the inviting party As we informed earlier, starting from January 16 of 2019, the company inviting foreign nationals toRussia shall undertake certain measures to ensure that the invited foreign national complies with the purpose of his/her entry into Russia, as well as timely departure from Russia, etc. According to the results of the draft’s review, the Ministry of Internal Affairs provided a number of changes thereto. In particular, the Ministry of Internal Affairs clarified that it wouldbe possible to communicate with a foreign national by telephone, correspondence, including email exchangeorpersonal meetings. Additionally, the company will be able to determine the frequency of contacts with an invited foreign nationalat its sole discretion, depending on the length of stay of such foreigner in the Russian Federation. The Ministry extended the list of means for notifying a foreigner of the need to leave the Russian Federation, which must be done no later than 10 days before the expiration of theirvisa. Namely, the draft indicates that the inviting party will be able to notify a foreign national personally against signature, by e-mail with notification of receipt, or by the Russian Post with notification of receipt. Currently, the draft is still pending. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
1554670800000
2019: key developments in Russian labour and migration legistation
Pension reform 1. New retirement age in Russia Starting from January 1, 2019, the retirement age willincrease by one year during each year of the transition period, until the retirement age reaches 65 for men and 60 for women. The Law stipulates that men who reached 60 years old and have had 42 years of work experience, and women aged 55 years old and have had 37 years of work experience are entitled to retire earlier — 24 months prior to reaching standardretirement age. The Law lists some categories of employees who are entitled to early retirements, such as: Women aged 56, having at least 15 years of working experience, if women gave birth to 4 children and raised them until they reached 8 years old; Women aged 57, having at least 15 years of working experience, if women gave birth to 3 children and raised them until they reached 8 years old. 2. New criminal liability for employers Starting from October 14, 2018, there is a criminal liability for unjustified denial in hiring a person due to his/her pre-retirement age and unlawful dismissal of a person who has reached pre-retirement age. Starting from January 1, 2019, pre-retirement age means 5 years prior to reaching the retirement age. The penalties could be a fine up to 200 000 RUB (approx. 2 597 EUR); or fine in the amountof up to 18 months’ salaries of the convicted person, or in a form of obligatory works for up to 360 hours. Criminal liability can be imposed on authorized officers of the legal entity (e.g., General Manager, HR Manager, etc.). Labour law 3. Scheduled audits of companies for labour law compliance The Federal Labour & Employment Service published the list of companies which are subject to scheduled audits by the State Labour Inspectorate in 2019. The audit comprises a labour documentation audit of companies in relation to their compliance with the Russian labour legislation. 4. Deadline for conducting special evaluation of working conditions By December 31, 2018, all companies had to complete a special evaluation of working conditions, which finally replaced the procedure for certification of workplaces. As of January 1, 2019, lack of the documents confirming completion of the special evaluation of working conditions, at the workplace,may incuradministrative liability. Each company shall publish a summary of the results of the special evaluation on the company’s website. Starting from 2020, based on the data from the information system that records results of a special evaluation of working conditions, the Federal Labour & Employment Service willbe able to automatically holdthe companies, which failed to conduct a special evaluation of working conditions at the workplace, administratively liable. 5. Introduction of a tax for self-employed persons Starting from January 1, 2019, an experiment on the taxation of “self-employed” individuals (individuals who are self-employed, who do not have an employer and do not attract employees under labor contracts) commencedin Moscow, Moscow Region, Kaluga Region, and Tatarstan. The Federal Tax Service has already warned employers against re-hiring individuals as self-employed, in order to optimize taxes and social contributions. In case the Federal Tax Service reveals the fact of unlawful re-hiring of individuals as self-employed persons, the company mayface additional taxes/fees and may be held administratively liable. 6. Extra days off for employees undergoing standard medical examination From January 1, 2019, employees undergoing medical examination have the right to be released from work for one working day (once every three years), while preserving their place of work (position) and average earnings. According to the changes, certain categories of employeesare entitled to be released from work for two working days (once a year) while preserving their place of work (position) and average earnings. These categories of employees include persons of pre-retirement age, as well as working pensioners. In order to be eligible to additional days off in order to undergo a medical examination, the employee must file a written application to the employer. Migration law 7. New criminal liability for sham migration registration Starting from November 23,2018, the law introducing amendments to criminal liability for sham migration registration of foreign nationals and stateless persons, came into force. In accordance with the law, the following cases are considered as sham migration registration of foreign nationals, such as: migration registration at a place of residing, without intention of a foreign national/stateless person to live there, as well as without host party’s intention to provide such place of residing for a foreign national/stateless person; migration registration at the company’s address, where a foreign national/stateless person does not perform labour activities in fact. Sham migration registration may entail the criminal liability in accordance with the Russian Criminal Code. The penalties could be a fine up to 500 000 RUB (approx. 6 490 EUR); or fine in the amount up to 3-years’ salary of the convicted person; or in a form of obligatory works for up to 3 years, with suspension of the right to hold certain positions, or perform certain activities for up to 3 years; or imprisonment for up to 3 years with suspension of the right to hold certain positions or perform certain activities for up to 3 years. 8. New obligations of parties inviting foreign nationals in Russia Effective as of January 16, 2019, amendments to the migration legislation impose new obligations for the companies inviting foreign nationals in Russia. The changes concern both the invited foreign employees and business partners. Namely, the companies which obtain/issue the invitation letters for work, or business, visas shall now track the compliance of the purposes of arrival/period of stay in Russia of these foreign nationals, as well as ensure their timely departure from Russia. The list of specific measures, that companies must take,will be approved by the Russian Government Decree, which has not yet been adopted. However, the liability of non-compliance is already in force. The law establishes a new administrative liability for inviting parties who do not comply with the above obligations. The following fines apply: for individuals — from RUB 2000 (approx. EUR 26) to RUB 4000 (approximately EUR 52); for officials of legal entities (e.g. company directors) — from RUB 45000 (approximately EUR 584) to RUB 50 000 RUB (approximately EUR 649); for legal entities — from RUB 400000 (approximately EUR 5 195) to RUB 500000 (approx. EUR 6 490). Civil procedure 9. Amendments to procedural legislation In 2019, amendments to procedural legislation will come into effect, which will directly affect the procedure for handling labour disputes. In accordance with the new rules, only lawyers and other persons with higher legal education, or a degree in law, can be representatives in court. At the same time, new requirements will not apply to legal representatives (for example, to the general director of the company). The changes establish a new cassation appeal rules. The cassation appeal will need to be submitted to the cassation court of general jurisdiction, through the court of the first instance (previously, the complaint could be submitted directly to the cassation court). In addition, the complaint will need to be filed within three months from the date of the entry into force of the contested judicial act (a six-month period was previously set). The law provides that if a claim is filed with an arbitration court, instead of a court of general jurisdiction (provided that the court of general jurisdiction must consider such a case), the case will be referred to a court of general jurisdiction on jurisdiction. The law also provides additional requirements for the content of the claim. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
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New category of employees in Russia from 2019 – persons of pre-retirement age
Starting January 1, 2019, the amended pension legislation comes into force in Russia. As per the new rules “pre-retirement-age” employees¹ are defined as individuals who will reach in five years the pension age² making them eligible to the old-age pension including an early-retirement pension. Specific dates of commencement and expiry of the pre-retirement age should be determined by an employer taking into account the date, month and year of the employee’s birth³. The key changes to legislation are the following: As of October 14, 2018, the Criminal Code of the Russian Federation was supplemented by Art. 144.1 which establishes the criminal liability for unjustified refusal to hire or unjustified dismissal of a person of the pre-retirement age. This kind of liability may apply to CEOs of companies or any other officer who is authorized to hire and dismiss employees. The named persons may be subject to a fine in the amount up to 200 000 rubles or in the amount of the wages (other income) of the convicted person for a period up to 18 months4. At the same time, the law does not provide for any criteria for “unjustified dismissal”. Starting 2019, companies will have to grant the employees of pre-retirement age two working days once a year for a health checkup with retention of salary and place of work for the period of absence. Currently, employers who have employees of pre-retirement age also have to submit a quarterly report to the regional employment center at the request of the Federal Service for Labour and Employment (Rostrud)5. Rostrud collects information only about men born in 1959 and women born in 1964, both working and dismissed in the reporting period. ¹ p. 3 Art. 1, Art. 11 Federal Law No. 350-FZ of October 3, 2018. ² From 2019, women will retire from the age of 60 y.o., men – from the age of 65 y.o. ³ E.g. if a female employee was born on April 14th, 1966 then her pre-retirement age would begin on April 14th, 2019 and finish on April 13th, 2024. 4 Federal Law No. 352-FZ of October 3, 2018 on the amendment to the Criminal code of the Russian Federation 5 Letter of the Federal Service for Labour and Employment No. 858-PR of July 25, 2018. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
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Key developments in Russian labour and migration legislation 2018
1. Representatives of employees will be admitted to meetings of corporate boards Since August 14, 2018 representatives of employees have been entitled to participate in the meetings of a corporate board of the company in which they work. The actual implementation of this right depends on whether it is established: (i) by a federal law, (ii) by a constituent document of the company, (iii) by a local statutory act of the company, (iv) by a collective bargaining agreement. The employees will not be able to directly influence the decision of the corporate board of the company, since they have only an advisory voice. A trade union or another employees’ representative body, may appoint the employee who will participate in such meetings. In case the employees, who participate in the meeting, disclose any sensitive information constituting a secret protected by law, which has become known to them in connection with participation in a meeting of corporate board, such employees can be held liable. 2. Disciplinary action for failure to comply with anticorruption legislation The Law, establishing changes to the Russian Labour Code, came into force on August 14, 2018. The Law provides for that corruption breaches constitute a specific type of disciplinary offence, in relation to which there is an extended term of imposition disciplinary actions - three years. Under the Russian Labour Code, corruption breaches is failure to comply with restrictions and prohibitions and non-fulfillment obligations, established by Russian anticorruption legislation. 3. New requirements in relation to migration registration of foreign citizens in Russia The Law, which sets out amendments to procedure of migration registration of foreign nationals in Russia, came into force on July 08, 2018. The Law requires that foreign citizen shall be registered at the address where the foreign citizen actually resides/lives in Russia. In particular, foreign citizens can be registered at the address of: Residual property (apartment, etc.) where he//she actually lives; Hotel, camping, resort spa, etc. as well as medical institutions where foreign national actually resides. Under the Law a foreign national can be registered at the address of his/her employing entity (or at the address of premises owned by the employing entity) only if such foreign national actually resides/lives there. The Law does not have retrospective effect. It means that there is no need to re-register under new rules foreign nationals already registered at the address of the employers (even if they do not actually reside/live there) as long as their migration registration is effective. 4. Visa-free entrance to Russia for World Cup Fan ID owners The Law, allowing visa-free entrance to Russia for foreign nationals who have Fan ID, came into force on August 03, 2018. Fan ID is a document that allowed entrance to Russia and its stadiums during the 2018 FIFA World Cup. Under the Law, foreign national who visited the country during the 2018 FIFA World Cup have free entrance to and exit from Russia until the end of 2018, i.e. such foreign nationals are not required to get visa in order to visit Russia in 2018 for tourist purpose. 5. New obligations of parties inviting foreign citizens in Russia The Law, introducing new types of obligations for so-called “inviting parties” of foreign national was adopted and will come into force on January 16, 2019. The Law introduces new obligations for inviting parties aimed at preventing violation of Russian immigration laws by foreign citizens. Inviting party shall take measures to ensure timely departure of an invited individual from Russia upon expiry of his/her stay (as per issued visa). Moreover, according to the Law inviting party shall also take measures to ensure that the invited person complies with the declared purpose of his/her entry into Russia (e.g. , a person entered into Russia based on business visa cannot be involved in employment activities in Russia). The Law establishes new administrative liability of inviting parties for non-compliance with the above obligations in a form of fine: For individuals — from 2 000 RUB (approx. EUR 25) up to 4 000 (approx. EUR 50); For officials of legal entities (e.g. General Director) — from 45 000 (approx. EUR 562,5) up to 50 000 RUB (approx. EUR 625); For legal entities — from 450 000 (approx. EUR 5 625) up to 500 000 RUB (approx. EUR 6 250). 6. New grounds for unscheduled checks by State Labour Inspectorate The Law, which establishes new grounds for unscheduled checks by State Labour Inspectorate, came into force on January 11, 2018. Under the Law, State Labour Inspectorate may conduct unscheduled checks of the employers in several cases. The grounds for such checks are: (1) intentional evasion from entering into an employment contract with an employee; (2) conclusion of an employment contract with an employee in the improper form; (3) entering into a civil law contract (services, consulting, etc.), which in fact regulates employment relations between an employer and employee. Crucial novelty is that the employer will not be notified in advance about check initiated on the above grounds. The check initiated on the above grounds may be carried out without prior approval of the Prosecution Office (as normally required for the State Labour Inspectorate to rich out an entity with the inspection). We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
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Procedure of imposing disciplinary action for anti-corruption violations
We would like to inform you that changes to Article 193 of the Russian Labour Code¹, which provide for the procedure of imposing disciplinary action for anti-corruption violations, came into force on August 14, 2018. According to the changes, anti-corruption violations constitute a separate type of disciplinary offence, with an extended timeframe for imposing disciplinary action: three years. Under the Labour Code, an anti-corruption violation is a failure to comply with restrictions and prohibitions and non-fulfillment of obligations, established by Russian anti-corruption legislation. The regular procedure of bringing employees to disciplinary liability still applies to anti-corruption violations, except for the specified extended term of imposing disciplinary actions. In this regard, it is recommended that all employers ensure that their local policies contain anti-corruption provisions, corresponding to Russian anti-corruption legislation. ¹ Federal Law dated August 3, 2018 No. 304-FZ “On amendments to the Article 193 of the Labour Code of the Russian Federation”. We hope that the information provided herein will be useful for you. If you or any of your colleagues would like to receive our newsletters via e-mail, please fill in the 'Subscribe' form at the bottom of the page. Practices: Labour and Employment Note: Please be aware that all information provided in this letter was taken from open sources. Neither ALRUD Law Firm, nor the author of this letter bear any liability for consequences of any decisions made in reliance upon this information.
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