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Published: 04/03/2020
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— Got a job with a probationary period of one month. After passing it, I was hired. But I received a salary less than a permanent one. Is my employer right?
— Indeed, employers, in order to make sure that the hired employee suits them, introduce a special trial period, during which the employee is assigned the full scope of job responsibilities, but in case of failure, the employment contract is terminated according to a simpler mechanism. What about wages during this period? Does the employer have the right to reduce the wages of his employee during the probationary period compared to the established value in the staffing table or wage scale?
- What the law says
- Remuneration during the probationary period and its registration in employment contracts
What is a probationary period?
According to the Labor Code of the Russian Federation, a probationary period is a period during which the company's management must understand how well the candidate fits the position. Its period is strictly regulated by the provisions of the Labor Code of the Russian Federation.
| Situation | Test duration |
| 2 weeks | |
| Employment on a general basis | 3 months |
| Management positions and chief accountants | 6 months |
If an employee is on sick leave, undergoing training, or does not perform his professional duties for other reasons, the testing period is automatically extended.
It is required to indicate in the employment contract that the employee is hired by passing a test, based on the results of which management will decide on the advisability of continuing cooperation.
It is necessary to specify the working conditions at the initial stage, as well as the employee’s responsibilities. If there is no information about the probationary period, it is considered that the employee was hired without it. The Labor Code allows you to extend the duration of the test if necessary.
But for this it is necessary to conclude an additional agreement where all the conditions will be specified. If management illegally provides a contract with a trial period for signing, the employee can accept it and then go to the State Labor Inspectorate or the court to have it amended.
It is not always allowed to establish a probationary period, according to the provisions of the Labor Code of the Russian Federation; it is not allowed in relation to:
- pregnant women;
- pensioners;
- minors;
- disabled people;
- passed the competition;
- persons who are getting a job for the first time;
- citizens who received positions as a result of direct or indirect elections;
- employees whose fixed-term contract lasts less than two months;
- employees transferred from other organizations.
Thus, the employer must take these nuances into account when hiring an employee. Some categories of persons have a number of privileges that are enshrined in the Labor Code of the Russian Federation, so it will be more difficult to fire them. To avoid problems with staff, most employers try not to hire beneficiaries.
ConsultantPlus: Forums
So the fact of the matter is that I do not have the opportunity to defend my rights and talk about any discrimination there, because... There is no article in the Labor Code of the Russian Federation that for the probationary period the salary is set in accordance with the staffing table and that the level of this salary for the probationary period will be less than the salary according to the staffing table, because
the employer is looking at the employee, the employee is looking at the employer, etc. Accordingly, when you are hired, a certain salary level is agreed upon. Is this level already according to the staffing schedule or not? I can’t check, I’m a new person. No one will let me see!
And then there is what seems to be unspoken, that after the successful completion of the probationary period, your salary will be raised as it should be! But I can’t download the right, because... no one showed me this staffing table, there is no article about all this in the Labor Code of the Russian Federation. In general, hello. And what kind of discrimination can we talk about if the Labor Code of the Russian Federation does not help me in this matter!
Are salaries paid?
Some employees believe that at the initial stage the company does not pay salaries. This statement is partly true. From time to time, firms enter into a verbal agreement about the intention to hire a person, but first he needs to undergo training.
This period can range from several days to two months. In this case, the candidate does not receive a salary, since he is not employed.
Moreover, the employee bears financial costs for the following:
- travel to and from the place of training;
- purchasing various materials (this is often practiced).
After completing the training you are required to pass a test. Those individuals who successfully pass it are automatically enrolled in the organization. If they are asked to undergo several more tests (for example, to do a test task), then a probationary period according to the Labor Code of the Russian Federation is not allowed.
What other tricks do employers resort to?
Probation period: what lengths employers go to in order not to pay
Managers often decide how to “cut” salaries for employees by dividing them into two parts. One is considered a salary, and the other serves as a bonus.
In this case, the salary has a strictly defined amount, officially fixed in the contract. Prizes are issued only if there are grounds for this.
Employers simply do not recognize, or do not themselves provide, the reasons for which the right to bonuses arises. This is done to save money. In this situation, many employees turn to representatives of the labor inspectorate.
Another common violation is the fixation of two types of salaries in employment agreements. One of them relates to the testing period, and the other is established after hiring.
This often results in salaries being lower during trials than in mainstream positions. Such violations must also not be tolerated.
There are other ways management can save money:
- internship, during which they may refuse remuneration altogether;
- drawing up only an oral contract (in essence, the two parties simply agree to perform the work for free);
- consent only to compensation for additional expenses, and no wages are paid at all.
What does the Labor Code say?
The question of how much to pay an employee during the test is decided individually in a particular case. Since a beginner cannot work quickly and efficiently (he needs to understand the specifics of the work process), the employer can set a lower wage.
This is not prohibited by the provisions of the Labor Code, so management often uses it. Practice shows that the salary for the probationary period is reduced to 30%.
In companies where there is a minimum wage, and everything else is a bonus for effective work, employees receive the minimum payment if they do not show good results right away. However, this is difficult to do due to the lack of a customer base.
All employees employed in the same position have equal opportunities for career growth. They use identical salary calculation conditions, so the amount of payments directly depends on the newcomer himself.
Minimum level
Current legislation stipulates that an employee cannot receive less than the minimum wage. Thus, during the probationary period, the employer can set this salary amount.
You must understand that each region has its own minimum salary, which is regulated by regional legal acts. And an employee who is allowed to perform his official duties after the test is considered hired on a permanent basis.
At the same time, his salary should increase if at the initial stage it was reduced.
Expert opinion
Irina Vasilyeva
Civil law expert
It is possible to conclude a part-time contract. Then the minimum wage will be ½ of the minimum wage.
Less than indicated in the staffing table
Article 135 of the Labor Code of the Russian Federation states that the remuneration system should be established by internal orders of a particular organization. The employment contract must indicate the terms of salary payment with the amount of salary and bonus parts (Article 57 of the Labor Code of the Russian Federation).
It is worth understanding that the salary is the minimum payment that is guaranteed to the employee. It does not depend on the effectiveness of his work and is paid based on the provisions of the Labor Code of the Russian Federation. Salaries must be paid twice a month, but the dates are set by the company.
If the position has various additional incentive payments, then they may not be paid during the probationary period. However, this is only allowed if the candidate does not meet certain requirements.
For example, lack of experience or failure to meet quantitative and qualitative indicators. In other cases, it is necessary to pay the full salary, taking into account the incentive portion.
If an employer violates these provisions of the Labor Code of the Russian Federation, he is given a fine of up to 50,000 rubles on the basis of Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. Thus, paying less than indicated in the staffing table is allowed only if there are compelling reasons.
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Rights and responsibilities of an employee during probation
By applying for a specific position, an applicant undergoing a probationary period becomes the owner of the same rights and responsibilities as an employee who occupies it permanently.
Responsibilities will include:
- actions determined by job authority and professional requirements (all of which are reflected in the job description);
- compliance with labor discipline in terms of general regulations and safety related to the requirements of fire safety and technical briefings;
- compliance with all conditions that are specified in the contract and local regulations of the company, if they do not contradict the legislation of the Russian Federation.
By passing the compliance check, the employee retains all general civil rights, and also acquires those rights that are guaranteed to him by the Labor Code.
The latter include:
- decent working conditions that guarantee the employee’s life and health;
- receiving wages and incentive payments (for example, bonuses, additional payments for work outside working hours, etc.);
- insurance payments that the employer is obliged to pay for the employee;
- the opportunity to go on sick leave and compensation for certificates of incapacity for work;
- the opportunity to go on leave without pay, receive an unpaid day off or take paid leave, if the employee belongs to the category of persons who have the right to this (Article 122 of the Labor Code);
- the opportunity to resign from work if desired, and the employee has the right to do this during any period of testing, having complied with the norms of the Labor Code in terms of notifying management and working out.
Article 122. Procedure for granting annual paid leave
It is important to note that the employer can set a probationary period shorter than the legally required period. In this case, management has the right to extend the period if it was not possible to determine the employee’s qualifications.
It is important that the following conditions are met:
- it is necessary to describe the claims against the employee in writing and obtain his consent to extend the tests;
- if there is consent, an additional agreement is drawn up to increase the period, which will become an integral part of the Employment Contract;
- the total length of the probationary period cannot exceed that established by law.
If an employee made shortcomings and mistakes in his work, was incompetent in professional matters, or violated order, then each such fact must be recorded. If you do not want to continue further employment relations with such an applicant, you should initiate a dismissal procedure.
Increase in wages after passing tests
Often, after passing the tests, the employee’s salary is increased. If the employment contract regulates the issue of reducing wages during the trial, then after this period he receives 100% (according to the wage scale for a certain position).
There is no need to issue any order. If the employee continues to work, the accountant makes calculations in accordance with the order on the differentiation of wages at the enterprise.
This means that the employee must have an equal opportunity to receive the bonus portion of the salary after passing the test. Also, all payments that are due for the position are provided.
Dismissal procedure
It is possible to dismiss an employee who, during the testing process, did not demonstrate the qualities expected by the employer, only if there are compelling reasons. Kicking an applicant out of work without giving reasons means incurring the wrath of the labor inspectorate and administrative consequences.
According to the law, the following cannot be fired during the probationary period:
- pregnant women;
- mothers of children under three years of age;
- employees on sick leave;
- employees on vacation.
How to get SNILS? — you need to have a valid passport of a citizen of the Russian Federation and contact the Federal Tax Service.
We will describe the rules for registering unpaid leave.
In order for the dismissal to proceed without complications, the procedure defined by law must be strictly followed.
The stages of dismissal should include:
| Collection of evidence | Written recording of a newcomer's mistakes and blunders is grounds for his dismissal. As such you can use:
If the position requires the possession of special knowledge, then additional confirmation can be provided by verification and test work with unsatisfactory results. |
| Employee Notification | It is a written document that states:
The document must be dated and drawn up in two copies. It is important to comply with notice periods. The sooner the employer decides that the applicant is not suitable for the position, the better. The deadline for informing an employee about the upcoming dismissal is three days before the end of the test. If the notification is received later, then by law the employee will be considered to have completed the probationary period and will have to be dismissed on a general basis. Having received the notification, the applicant must sign a document confirming that he is familiar with the management decision and indicate the date of familiarization. If the applicant refuses to sign the notice, then the employer must draw up a notification act with the signature of two witnesses. |
| Issuance of an order | The next step is to issue a dismissal order. On its basis, data is entered into the applicant’s work book, and actual dismissal is carried out. |
| Calculation | The dismissed employee must receive a calculation on the date corresponding to the date of dismissal, which includes:
If an employee is fired under an article, and the reasons include malicious violations, then the employer has the right not to pay him severance pay, but this does not cancel the obligation to pay wages for days worked. |
It should be remembered that dismissal may become a reason for the applicant to go to court. When making a decision, you need to be sure that the employee’s rights have not been violated.
If during the testing process the employee himself decides that the place is not suitable for him, he just needs to write a letter of resignation and notify the manager three days before the expected date.
Based on this document, the employer issues an appropriate order and makes settlements with the applicant.
Failure of probation, employer actions
Not all employees cope with their job responsibilities, and therefore fail to complete the probationary period. An employee can resign of his own free will, realizing his inadequacy for his position. In this case, the work will be three days.
Failure of the probationary period is possible for several reasons:
- newcomer incompetence;
- lack of discipline;
- presence of bad habits;
- inability to join the team;
- presence of complaints from security personnel.
After unsuccessful completion of the probationary period, the employer may:
- terminate the employment contract with the employee. He must be warned about this and provided with an objective reason;
- transfer the newcomer to another position, taking into account his professional qualities.
Thus, failure of the probationary period does not always result in dismissal.
What other difficulties might arise?
It’s worth considering a few more features while working on a probationary period:
- Some employers specifically hire talented newcomers and give them challenging assignments. At the same time, the cost of remuneration is minimal, since this is not prohibited by the Labor Code of the Russian Federation. At the end of the test, an order is issued to terminate the contract due to inadequacy for the position held. You can easily find information about such companies on the Internet. It is recommended to avoid cooperation with them;
- management may try to force the conclusion of an additional agreement to the employment contract, which will spell out other terms of remuneration. They will be less attractive than the original ones, and the reason for this will be incomplete compliance with the position held (including for far-fetched reasons).
Thus, it is necessary to carefully study all the nuances and understand when the use of a probationary period is allowed. If it is installed illegally, you should immediately refuse to cooperate with the organization. Although some choose the difficult path, which involves litigation.
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