The Supreme Court has published two regular reviews of practice, this time one of them is devoted to disputes over conflicts of interest and other relationships between business and officials, and the second - to the employment of former civil servants. We bring to your attention a brief overview of the conclusions made by the judges.

The Supreme Court summarized the practice in cases of unlawful prosecution of labor activity state or municipal employee, conflict of interest and other violations of the requirements of anti-corruption legislation. The first review included the most interesting and important decisions of courts of all instances in cases of bringing employers to administrative responsibility for the period from 2014 to 2016, and in the second document for the same period, the RF Armed Forces drew conclusions regarding what is considered a conflict of interest. The main attention of the judges was paid to the issues of administrative responsibility, both of the officials themselves and businessmen-employers.

Employment of officials

The Supreme Court recalled that there are restrictions on the employment of state or municipal employees of certain categories, as well as persons who previously held the above positions. When hiring them, organizations must comply with certain conditions, for non-compliance with which administrative liability is provided. AT Article 19.29 of the Code of Administrative Offenses of the Russian Federation, in particular, an administrative offense includes involvement in labor activity in commercial organization on terms employment contract or to the performance of work or the provision of services under the terms of a civil law contract, an acting state or municipal employee who holds a position included in the list established by regulatory legal acts. Similar liability is provided for in the employment of a former official, if it occurred in violation of the requirements provided for by the Federal Law "On Combating Corruption".

These requirements include the obligatory informing of the former employer of the official, when concluding an employment contract with him, regardless of the size of the wages or a civil law contract with a cost of work performed in excess of 100 thousand rubles per month. As pointed out by the Supreme Court of the Russian Federation, if the employer does not report the conclusion of an employment contract (service contract) with a former state (municipal) employee within 10 days to the representative of his employer (employer) at his last place of service, then the objective side of the offense arises, liability for which is provided for by the norms of Article 19.29 of the Code of Administrative Offenses of the Russian Federation. At the same time, the representative of the employer (employer) does not have such an obligation if the former official carries out his labor activity in a state (municipal) body or a state (municipal) treasury institution.

The subject of an administrative offense under Article 19.29 of the Code of Administrative Offenses of the Russian Federation is not any executive organization, but only one that is entrusted with the obligation to comply with the requirements of paragraph 4 of Article 12 federal law"On Combating Corruption". As a rule, this is the head of the organization or a personnel employee.

Conflict of interest

The Supreme Court analyzed the use of anti-corruption legislation by the courts in resolving disputes related to bringing officials to disciplinary responsibility for trying to conceal a possible conflict of interest to which they were a party. In this category of cases, the courts "in some cases" make mistakes, as noted in the document of the Supreme Court of the Russian Federation, so the judges considered it necessary to express their legal position. In their opinion, the generalization of practice, together with the conclusions drawn, will ensure a uniform approach to resolving such disputes. The Court recalled that:

According to article 591 Federal Law of July 27, 2004 No. 79-FZ"On the state civil service Russian Federation» for non-compliance by a public civil servant (hereinafter also referred to as a civil servant) of restrictions and prohibitions, requirements for the prevention or settlement of conflicts of interest and 2 failure to fulfill the obligations established in order to combat corruption by this federal law, Federal Law of December 25, 2008 No. 273-FZ "On Combating Corruption" and other federal laws, the following penalties are imposed: a remark, a reprimand, a warning about incomplete official compliance.

One of the cases cited in the review concerns a situation where a possible conflict of interest involving an official holding a high position in the city administration was declared by the prosecutor. According to him, in a two-year period, based on the results of open auctions and requests for quotations, this official concluded more than 30 contracts for the repair of municipal housing stock with just one organization. At the same time, among the founders of this organization was the husband sister official. The sister herself was also in the civil service and, by virtue of her official position, knew about the conditions for holding competitions and about the funds allocated from the budget. The prosecutor saw a personal interest in the actions of the official, which could affect the results of the auctions. Three courts established the existence of a conflict of interest and indicated that the official did not take measures to prevent it, and also did not notify the employer in writing.

But the collegium for civil cases of the Armed Forces of the Russian Federation made a different conclusion on this score. The judges pointed out that when applying to the court with a statement on the establishment of a conflict of interest, to which a municipal employee is a party, the prosecutor's office employee indicated that his personal interest could affect the objective performance of the duties of the first deputy head of administration. and that the official did not attempt to avoid conflict by alerting his superiors. These actions are an offense that entails dismissal from the municipal service, the board of the Armed Forces noted, but noted that this is not a dispute about a conflict of interest. Since the prosecutor's statement is connected with the subsequent resolution of the dispute on the right to further service by the official, as well as with contesting the results of the auctions. The text of the document says:

The courts may accept applications for the establishment of facts and consider them in the order of special proceedings, if the establishment of the fact is not connected with the subsequent resolution of the dispute on the law within the jurisdiction of the court.

The next conclusion of the Supreme Court was that the official, for proper, objective and impartial execution official duties which is affected or may be affected by the possibility of obtaining income for a person who is closely related to him, or a person associated with a state, municipal employee by property, corporate, or other close relations, is a party to a conflict of interest. In this case, he must acknowledge this and inform his employer. Moreover, as noted in one of the examples of judicial practice given in the review, in this case the fact that such a related person wins an auction or tender does not even matter, since a conflict of interest is a situation in which the personal interest of a municipal employee not only directly affects but may also affect the proper and impartial performance of his duties.

Another violation that is often the subject of litigation is the form of reporting a conflict of interest. The Supreme Court noted that this must be done strictly in writing. Otherwise, it will turn out, as in the situation under consideration, when a civil servant filed a lawsuit against her former employer, in which she asked to recognize her dismissal due to loss of confidence and reinstate her in the position of bailiff. It turned out that in the framework of one of the enforcement proceedings, the former bailiff orally informed her boss about her relationship with the debtor, who was her father. The official decided that she had thus recused herself and fulfilled the requirements of the law on the prevention of conflicts of interest. However, in the course of the initiated enforcement proceedings on the basis of a court order, the bailiff did not take the necessary enforcement measures and the debtor managed to sell his property, which excluded the possibility of imposing a penalty on him. Thus, a conflict of interest still arose. The court pointed out that the bailiff had to inform the chief of a personal interest that could lead to a conflict of interest, and declare self-withdrawal in writing before the commencement of enforcement actions.

First of all, let's understand what we are talking about.

When we talk about a conflict of interest, we mean circumstances in which considerations of a person's private benefit influence his decisions, which often harm the interests of the employer as a result.

Conflict of interest can be classified by type of subjects:

1. Organizational - happens when organizations are the subjects of a conflict of interest various kinds property, public or private.
2. Personal - typical for situations where the private interests of a person (employee of the company) conflict with the interests of the employing organization and are associated with the performance of the employee's official duties.

From point of view personnel specialist It is worth considering the second type of conflict of interest.

In what situations is a conflict of interest possible?

• Purchasing activities.

This includes situations where relatives act as buyers and suppliers.

As an illustration of this paragraph, we can cite the situation with the procurement of goods for the needs of the organization, when the representatives of the customer and supplier are relatives, for example, father and son. The customer organization is interested in acquiring the goods it needs at the lowest price, and its purchaser, together with his relative - the representative of the supplier, is interested in obtaining personal profit through unjust enrichment, by significantly overestimating the purchase price.

• Participation of the employee in decision-making that can bring any benefit to persons associated with him.

For example, issuing a loan to a relative or friend by a bank employee.

• Work of relatives in direct subordination.

As an example, one can cite the establishment of an unreasonably high salary for a subordinate relative or the improper performance of control functions in relation to a subordinate relative.

• Work in competing organizations.

The work of related persons in competing organizations has the potential to provoke the abuse of office of one person in favor of the company where another person is employed. For example, in the form of transferring information related to a trade secret.

• Other use official position in selfish interests.

FOR EXAMPLE

A few years ago, Mr. Ivanov, the owner of the Andron company, turned to personnel security specialists (in order to maintain confidentiality, all company names and the names of people mentioned in this article have been changed) with a request to deal with a problem that worries him. The main activity of the company was the wholesale of auto components directly from manufacturers.

According to him, over the past six months, the company's revenue has sharply and significantly decreased, while maintaining the same volume of sales of goods. This fact led Ivanov to think about the presence of abuses on the part of the company's hired personnel.

In the course of carrying out activities to study the current situation, it was possible to find out the following. With the direct participation of Mr. Petrov, the director of the Andron company, and one of his relatives, in whose name the company with the same type of activity was registered, an illegal scheme was implemented to withdraw funds from the Andron company.

Using an opaque scheme of discounts and bonuses for clients, Petrov "sold" goods to his relative's companies at almost the purchase price, and they, in turn, sold them, already at market prices, to clients of the same Andron, thus depriving Ivanov's company a significant share of the profits.

In this example, we see a classic version of a conflict of interest, when the personal selfish interest of the director of the company runs counter to the interests of the company itself and its founder.

What action can the HR take?

At the stage of employment:

• collection of information about the family ties of the candidate for vacant position, including about the places of work of relatives (at the stage of filling out the applicant's questionnaire and interview);
• collecting information about the candidate's friendships by studying social networks- for example, about the presence of employees of competing organizations among the candidate's acquaintances;
• verification of the candidate for the presence of registered in his name legal entities or IP. Particular attention should be paid to cases where the type of activity of such a company is the same or close to yours. Verification can be done by accessing online services to provide information from the Unified State Register of Legal Entities, for example - using the Integrum service;

2. During the period of work of the employee:

• regular checking of employees for the appearance of legal entities or individual entrepreneurs registered in their name. In the same way as at the stage of employment;
• identification of the facts of employment of persons related to employees in the company-contractors of your employer. Perhaps by studying the profiles of these individuals in social networks.

In conclusion, I would like to say that at present the issue of a conflict of interest in the employment of a candidate and in the process of his further work in Russian companies not enough attention is given. As a result Russian business continues to suffer financial losses that could easily be minimized.

Is it possible to accept a civil servant part-time in a commercial organization.

Answer

E.Yu. answered the questions. Zabramnaya, lawyer, Ph.D. n.

Dealing with external collaborators

The editorial office receives many questions related to the hiring and dismissal of external part-time workers, as well as providing them with various guarantees, such as annual paid leave, maternity leave, etc.

We offer readers answers to the most interesting questions.

Co-working cannot be banned

E.N. Novikov, Ulyanovsk

We don't want our new employee, whom we take on the position of head of the financial department, worked somewhere else part-time. Can we directly write in the employment contract that he is forbidden to work part-time?

: Not. Employees can work part-time in your free time with an unlimited number of employers th Art. 60.1, Art. 282 of the Labor Code of the Russian Federation. The employer has no right to control what the employee does in non-working time. There are categories of employees who need to obtain the consent of the main employer to work part-time - these are the heads of organizations, athletes and a coach s Art. 276, art. 348.7 of the Labor Code of the Russian Federation. But as you can see from the question, this is not your case.

We warn the head

legal ways prohibit essential workers from working part-time no.

Even if you write this condition in the employee’s employment contract, it will still not work. b Art. 9 of the Labor Code of the Russian Federation, art. 57 of the Labor Code of the Russian Federation. But if a labor inspector finds an employment contract with such a condition during the inspection, then you will be obliged to bring this contract into line with the law, and possibly even fined for violating labor laws a Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

A part-time worker can earn more than the main worker

Z.P. Sidorenko, Rostov-on-Don

We are hiring a part-time programmer. The director wants to give him the same salary as another full-time programmer. Is it possible to do so?

: Certainly. But provided that the employee you take part-time is more qualified and will perform more complex work at Art. 132 of the Labor Code of the Russian Federation.

To justify the salary differences between two programmers, break them down into categories. For example, assign the category "lead programmer" to a more qualified one, and simply "programmer" to a less qualified one. Set the salary for the position of the lead programmer to be twice as much as for the position of the programmer. And then your lead part-time programmer will receive the same amount for a part-time job as a full-time programmer. at Art. 285 of the Labor Code of the Russian Federation.

Obtaining consent for a part-time manager is the problem of the leader himself

HER. Zaitsev, Moscow

We are hiring a person CEO concurrently. Can we take him without a written permission for a part-time job from the main place of work?

: You can. Moreover, among the documents submitted when applying for a job, permissions from the main job for the head are not t Art. 283 of the Labor Code of the Russian Federation. Therefore, in principle, you cannot demand this document. Yes, you don't need it. Such permission is necessary only for the employee himself, if he also manages the organization at the main place of work th Art. 276 of the Labor Code of the Russian Federation.

A part-time worker can work for an unlimited number of employers

F.G. Guliyeva, Ufa

Our holding consists of several companies. In one of them there is a main employee, whom we want to register as a part-time worker in two more companies of our holding, in each for 0.5 rates. Tell me, please, is it possible to do this or should these 0.5 rates be shared between both employers?

: Can. The number of employers with whom you can conclude employment contracts for part-time work is not limited about Art. 282 of the Labor Code of the Russian Federation. Only the working time of a part-time job is limited - no more than 4 hours a day and no more than half of the monthly norm of working hours (or half of the norm of working hours for another accounting period )Art. 284 of the Labor Code of the Russian Federation. This restriction is set for each part-time employer separately. After all, each employer maintains its own record of working hours. and Art. 91 Labor Code of the Russian Federation and is not obliged to know how much his employee works for another employer.

How to indicate the position occupied by a part-time job in the staffing table

IN. Yushkin, St. Petersburg

We have one manager's rate divided between two employees: the main one, who works at 0.75 of the rate, and part-time, working at 0.25 of the rate. Our legal adviser says that a part-time job in staffing must be indicated not as a whole unit, but as the corresponding part of the full unit, in this case 0.25. Is it so?

: Not. In your case, one staff unit should be indicated in the staff list for the position of manager, since you have a whole rate for this position. It's just that it is divided between two employees - the main and part-time. After all, the staff list does not indicate the number of employees and not how the rates are distributed among them, but the number of staff units available in the organization.

But if in your company, according to the position occupied by a part-time job, only 0.25 rates were provided, then 0.25 rates would have to be indicated in the staffing table and Instructions for the application and filling out forms of primary accounting documentation for accounting for labor and its payment, approved. Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.

Sometimes a part-time worker can work full time

O.P. Grishina, Tomsk

Our part-time worker works at 0.5 rates for 4 hours a day. Now he says that he does not have a job at the main place due to downtime and therefore he wants to work for us every day for 8 hours with the corresponding payment. We are also interested in this, can we do it?

: No you can not. Of course, if on some days the part-time worker is free at his main job, then on these days he can work part-time full-time b Art. 284 of the Labor Code of the Russian Federation. But even in such a situation, the total number of hours of part-time work for a month (another accounting period) cannot exceed half of the monthly norm of working time (or half of the norm of working hours for another accounting period). Therefore, if on some days your part-time worker works for you full time instead of half, then you are obliged to compensate for this processing with a defect on other days of the month so that in a month he does not work for you more than half the monthly norm. This restriction does not apply in only two cases X Art. 284 of the Labor Code of the Russian Federation:

• <или>the part-time worker suspended work at the main employer due to the fact that he was not paid there for more than 15 days th Art. 142 Labor Code of the Russian Federation;
• <или>he was suspended from work for medical reasons m Art. 73 Labor Code of the Russian Federation.

We warn the head

Even part-time worker on some days free at the main job and wants to work more part-time, then on other days he will have to work less or not work at all. Indeed, in general, in a month he cannot work out more than half of the monthly norm of working time.

As you can see, downtime at the main job does not apply to these cases.

Despite this, it can still be beneficial for an employee to work full-time part-time on some days in order to get more days off later, as well as save on travel costs to work at your company.

And if you still involve him in full-time work on downtime days at your main job, then ask him to bring proof of downtime from there, for example, a copy of the downtime order. Otherwise, the labor inspectorate may find fault with you in the event of an inspection and say that your part-time worker is working more than expected.

From a part-time job, you can require a certificate of vacation from the main job

L.S. Arkhangelsk, Kemerovo

We recently got a part-time partner. He worked for a couple of months and is already asking for leave. He says that he is starting a vacation at his main job and we are also obliged to give him a vacation. We read the law and made sure that he really has such a right. Can we demand that he bring a document from his main job confirming that he is not deceiving us and that he really starts a vacation at his main job?

: Basically, Labor Code does not directly establish the obligation of a part-time job to bring such a document to work part-time. But at the same time, the inability of the employer to request it can lead to abuse by the part-time worker.

Therefore, we turned to the Ministry of Health and Social Development with the question of whether the employer of an external part-time job can ask him for a certificate or a copy of the order from the main place of work on the vacation period.

From reputable sources

Deputy Director of the Department of wages, labor protection and social partnership Ministry of Health and Social Development of Russia

“If an external part-time job requires him to be granted leave at part-time work, while assuring that he is starting a vacation at his main job, then the employer at part-time work has the right to request from him a document from his main job about the time he was granted leave.”

Vacation for a part-time job - always at the same time as vacation at the main job, even at your own expense

G.P. Kravchuk, Saratov

Our external part-time worker has already taken a vacation for the current working year. And now he wants to let him go again. He says that he is starting a vacation at his main job and we are obliged to give him one more vacation. Are we obliged to give him leave for the next working year, which he has not even started yet?

: There is no consensus on this matter.

So, according to Rostrud, an employer at a part-time job is obliged in such a situation to provide the employee with annual paid leave, even though he has already taken leave for the current working year.

From reputable sources

Head of Legal Department Federal Service for work and employment

“Giving vacation to a part-time worker simultaneously with leave from the main job is a guarantee norm established in the interests of the employee, and is aimed at releasing the part-time worker from work when he goes on vacation from the main place of work.

Therefore, in the situation under consideration, the employer does not have sufficient legal grounds to refuse an employee working part-time in providing annual paid leave simultaneously with annual paid leave at the main place of work. In such a situation, since the employee has already spent his vacation at part-time work, in fact, he will be granted a second vacation for the working year that has not yet come.

Note that the Labor Code does not contain an imperative norm prohibiting granting leave for a working year that has not yet begun, although in practice, of course, leave is granted in the coming working year.

At the same time, this point of view is not indisputable. After all, the advance provision of vacations (that is, before the start of the working year for which the vacation is granted) will lead to the fact that, having worked the next working year, the employee will not have the right to another vacation, as already walked him in advance. However, since the part-time worker is granted leave at work part-time at the same time as leave at the main job, and this rule is aimed at providing the employee with the opportunity to fully relax, we recommend that in this situation the employee be provided with at least a vacation at his own expense.

A part-time worker may be granted a standard personal income tax deduction

P.M. Nenasheva, Moscow

Are standard tax deductions external collaborator?

: Yes, if he applied to you with a deductible t paragraph 3 of Art. 218 Tax Code of the Russian Federation.

We tell the employee

External part-time worker can receive standard personal income tax deductions with only one employer. To do this, the employee must apply for the deduction to the selected employer.

It is not necessary to require a part-time job certificate from the main place of work that he does not receive a deduction there.

But be sure to warn the employee that if he receives deductions from several employers, then at the end of the year the tax authorities will force him to pay additional tax and may be fined for incomplete payment of tax a paragraph 3 of Art. 122 of the Tax Code of the Russian Federation; Letter of the Federal Tax Service of Russia dated May 10, 2007 No. 04-2-02 / [email protected] .

Entries in the work book about part-time work are made at the main job

D.P. Kirillov, Voronezh

An employee who is registered with us as the main one quits an external part-time job and asks to make an entry about this in his work book. The entry for a part-time job was made by the previous main employer. Do we have to make a record of dismissal from a part-time job? After all, he is not leaving us. And should we put a seal after this entry?

: A record of dismissal from part-time work must be entered in the work book of the employee by you, as his current main employer. Such an entry is made at the request of the employee and only if his work book already has a record of hiring part-time. And it does not matter who made it - you or the previous main employer of this employee.

To make an entry in the work book, the employee must bring to the main job a copy of the order for dismissal from part-time work at Art. 66 of the Labor Code of the Russian Federation; clause 20 of the Rules for the maintenance and storage of work books, the production of work book forms and the provision of employers with them, approved. Decree of the Government of the Russian Federation of April 16, 2003 No. 225.

The seal of the main employer after the record of dismissal from part-time work is not necessary. After all, the employee continues to work at the main place of work. And the seal of the main employer is put when all records are “closed” with this employer, that is, upon dismissal from the main place of work s Clause 35 of the Rules ... approved. Decree of the Government of the Russian Federation of April 16, 2003 No. 225.

You can go on maternity leave at the main job and at the “part-time” job at different times

U.Yu. Zhdanov, Kireevsk, Tula region

I was approached by our employee - an external part-time worker, who will soon go on maternity leave. She is interested in whether she must go on maternity leave both at her main job and part-time at the same time?

A: No, not necessarily. Your employee will need to receive two sick leave certificates at the antenatal clinic: one for the main job, and the second for part-time work at Part 2 Art. 13, part 5 of Art. 13 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood”. At the same time, she is not obliged to go on maternity leave from the day on which the sick leave is opened.

We warn the employee

For clearance maternity leave part-time worker needs take two sick leaves (for the main job and for part-time work).

At both places of work, in addition to submitting a sick leave, she will need to write an application for maternity leave m Art. 255 of the Labor Code of the Russian Federation. At her main job, she can ask for leave from the day the sick leave opens, and at part-time work - from a later date. As a result, at part-time work, she simply uses not 140 days of vacation, but less, and, accordingly, the allowance will be paid to her for fewer days (up to and including the closing day of the sick leave). And for those days that she works at a part-time job, she will receive a salary instead of benefits.

The part-time worker gives two weeks notice of dismissal

L.D. Efimova, Klintsy, Bryansk region

Our partner is leaving. Should he work for two weeks?

: Yes, because the procedure for dismissal of part-time workers on own will the same as the main workers in Art. 80 of the Labor Code of the Russian Federation. And if you agree to fire him earlier, then you have every right to do so. b Art. 80 of the Labor Code of the Russian Federation.

You can dismiss a part-time worker in connection with the reception of the main employee

L.I. Fedoseeva, St. Petersburg

We opened new vacancy and, since at first there was not much work there, they took on a part-time external part-time job on an indefinite employment contract. Now there is more work for this position, and we need a full-time person for it. The part-time worker does not want to work for us full-time. Can we fire him to take on another person?

: Yes, you can. The Labor Code allows terminating an employment contract with a part-time worker concluded for an indefinite period in case of hiring a person for whom this work will be the main th Art. 288 of the Labor Code of the Russian Federation. But do not forget to notify your part-time partner of the dismissal in writing no later than two weeks and Art. 288 of the Labor Code of the Russian Federation.

After dismissal from the main place, "part-time" work does not automatically become the main one

E.D. Astrakhan, Suzdal

We have an external co-worker. Now he said that he quit his main job, and demands that we re-register him from a part-time job to the main employee. Can we refuse him?

: Yes, you can. When dismissed from the main place of work, part-time work does not automatically become the main job. Part-time employment is a condition of an employment contract that can only be changed by agreement of the parties. n Art. 282 of the Labor Code of the Russian Federation.