Денис Карандашев

18 ways to break the law when recruiting

Instead of a preface

We will not consider violations when hiring, since checking documents during employment is to a greater extent in the area of ​​responsibility of HR specialists – we will focus on violations available to recruiting specialists 🙂

So, how can you break the law if you select staff:

Method 1. Publish vacancies with incorrect requirements for applicants

What we will break

Clause 6 of Article 25 of the Law “On Employment of the Population in the Russian Federation” prohibits the dissemination of “information about vacant jobs or vacancies containing discriminatory restrictions.”

How to be punished

Administrative Code of the Russian Federation Article 13.11.1. provides for “an administrative fine for citizens – from five hundred to one thousand rubles; for officials – from three thousand to five thousand rubles; for legal entities – from ten thousand to fifteen thousand rubles.

Comment

Reread paragraph 6 of Article 25 of the Law “On Employment of the Population in the Russian Federation” if you are not sure that you fully understand the meaning of the word “discrimination” – it is not difficult to comply with the requirements of the law.

Method 2. Store CVs of applicants sent by email

What we will break

As follows from the Clarifications of the Federal Service for Supervision of Communications, Information Technology and Mass Media dated December 14, 2012 “Questions regarding the processing of personal data of employees, applicants for filling vacant positions, as well as persons in the personnel reserve” , “In case of receiving a resume of the applicant via e-mail, fax, it is necessary to carry out activities aimed at confirming the fact of sending the specified resume by the applicant himself – to invite the applicant to a personal meeting with authorized employees of the employer, or to give feedback via e-mail.” If the above activities have not been carried out “resume is to be destroyed on the day of receipt” .

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 2 Article 13.11. “Processing of personal data without written consent of the subject of personal data to the processing of his personal data in cases where such consent must be obtained” – “an administrative fine for citizens in the amount of three thousand to five thousand rubles; for officials – from ten thousand to twenty thousand rubles; for legal entities – from fifteen thousand to seventy-five thousand rubles “.

Comment

You cannot store received CVs if you have not invited the applicant for an interview or have not received a scan of the signed consent from him to process personal data. Please note that Roskomnadzor is not empowered to hack your computer in search of illegally stored resumes. I think you can guess what answer to the request to show the resumes received by email.

Method 3. Store their CV or application form without the written consent of the applicants

What we will break

From the Explanations of Roskomnadzor dated December 14, 2012 – “Processing of personal data of applicants for filling vacant positions within the framework of legal relations regulated by the Labor Code of the Russian Federation, involves obtaining the consent of applicants for filling vacant positions to process their personal data for the period of the employer’s decision on hiring or refusing to hire. The exceptions are cases when a recruiting agency acts on behalf of the applicant, with which the person has entered into an appropriate agreement, as well as when the applicant independently posts his / her resume on the Internet, accessible to an unlimited number of persons. ”

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 2 Article 13.11. “Processing of personal data without written consent of the subject of personal data to the processing of his personal data in cases where such consent must be obtained” – “an administrative fine for citizens in the amount of three thousand to five thousand rubles; for officials – from ten thousand to twenty thousand rubles; for legal entities – from fifteen thousand to seventy-five thousand rubles “.

Comment

It’s time to get used to the fact that written consent to the processing of personal data becomes an integral part of the company’s workflow, including when recruiting personnel. Make sure that you are comfortable working with him, develop in advance options for consent for different purposes of processing personal data.

Method 4. Offer applicants to fill out “incorrect” questionnaires

What we will break

From the Explanations of Roskomnadzor dated December 14, 2012 – “if the collection of personal data of applicants is carried out through the standard form of the applicant’s questionnaire approved by the operator, then this standard form of the questionnaire must comply with the requirements of clause 7 of the Regulation on the peculiarities of processing personal data carried out without using automation equipment, approved by the Resolution of the Government of the Russian Federation dated September 15, 2008 No. 687, as well as contain information on the time frame for its consideration and decision-making on hiring or refusing to hire. ” In clause 7 of the Decree of the Government of the Russian Federation of September 15, 2008, we read the following – “ When using standard forms of documents, the nature of the information in which suggests or allows the inclusion of personal data in them (hereinafter – the standard form ), the following conditions must be met:

a ) the standard form or related documents (instructions for filling it out, cards, registers and journals) must contain information about the purpose of processing personal data carried out without using automation tools, the name (name) and address of the operator, the last name, first name, patronymic and address of the personal data subject, the source of obtaining personal data, the processing time of personal data, a list of actions with personal data that will be performed in the process processing, a general description of the methods used by the operator to process personal data;

b) the standard form should include a field in which the subject of personal data can put a mark on his consent to the processing of personal data, carried out without using automation tools, – if it is necessary to obtain written consent to the processing of personal data data;

in ) the standard form must be drawn up in such a way that each of the subjects of personal data contained in the document has the opportunity to get acquainted with his personal data contained in the document without violating the rights and legitimate interests of other subjects of personal data ;

r ) the standard form should exclude the combination of fields intended for entering personal data, the processing purposes of which are obviously incompatible. ”

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 1 Article 13.11. – “processing of personal data incompatible with the purposes of collecting personal data” – “warning or imposing an administrative fine on citizens in the amount of one thousand to three thousand rubles; for officials – from five thousand to ten thousand rubles; for legal entities – from thirty thousand to fifty thousand rubles “and the Code of Administrative Offenses of the Russian Federation, clause 2 Article 13.11. “Processing of personal data without written consent of the subject of personal data to the processing of his personal data in cases where such consent must be obtained” – “an administrative fine for citizens in the amount of three thousand to five thousand rubles; for officials – from ten thousand to twenty thousand rubles; for legal entities – from fifteen thousand to seventy-five thousand rubles “.

Comment

Approve the standard form, meeting the conditions listed above and use it in your work, if necessary. Or do not invite applicants to fill out questionnaires at all.

Method 5. Place “incorrect” questionnaires on the company’s website

What we will break

According to the Roskomnadzor Clarifications of December 14, 2012, “a typical form of the applicant’s questionnaire can be implemented in electronic form on the organization’s website, where consent to the processing of personal data is confirmed by the applicant by ticking the appropriate box.”

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 2 Article 13.11. “Processing of personal data without written consent of the subject of personal data to the processing of his personal data in cases where such consent must be obtained” – “an administrative fine for citizens in the amount of three thousand to five thousand rubles; for officials – from ten thousand to twenty thousand rubles; for legal entities – from fifteen thousand to seventy-five thousand rubles “.

Comment

Under the “correct” questionnaire on the company’s website or a form, after filling out which you can send a resume from the site, must be:

  1. checkbox;
  2. the phrase “I express my consent to the processing of personal data in accordance with the full text of the Consent”;
  3. the full text of the consent posted on a separate page and available for clicking on the link to the “text of the Consent” from the phrase above;
  4. button “Submit”, confirming the will of the applicant.

If you want to receive and store resumes and profiles from the site – do everything right. There is no need or desire to spend time and resources on this – do not post questionnaires on the website, but consider the submitted CVs in the general order.

The questionnaire posted on the website must be approved by a local regulatory act (attach a screen) and indicate in the document that you are thus fulfilling your obligation to obtain consent to the processing of personal data – this will be needed if Roskomnadzor checks you.

Method 6. Store the data of applicants for more than 30 days in case of refusal to hire

What we will break

From the Explanations of Roskomnadzor dated December 14, 2012 – “In case of refusal to hire, the information provided by the applicant must be destroyed within 30 days, except as provided by the legislation on the state civil service.”

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 2 Article 13.11. “Processing of personal data without written consent of the subject of personal data to the processing of his personal data in cases where such consent must be obtained” – “an administrative fine for citizens in the amount of three thousand to five thousand rubles; for officials – from ten thousand to twenty thousand rubles; for legal entities – from fifteen thousand to seventy-five thousand rubles “.

Comment

You can keep it longer, but only if you have the consent of the applicants to store personal data for other purposes not related to considering the applicant as a candidate for filling the vacancy for which he was refused. If you are checked by Roskomnadzor, keep in mind that an oral statement on compliance with the law will not be enough – you will need to present documents confirming the destruction of applicants’ data (orders to create a commission for the destruction of personal data and acts).

Method 7. Store applicant data as a “talent pool”

What we will break

Referring again to Clarifications dated December 14, 2012

“The maintenance of the personnel reserve is not regulated by labor legislation today. In this case, the processing of personal data of persons included in the talent pool can be carried out only with their consent, except for the cases when existing employees are in the talent pool, in whose employment contract the relevant provisions are determined.

The consent to the entry of the applicant into the personnel reserve of the organization is drawn up either in the form of a separate document or by putting a mark by the applicant in the appropriate field of the electronic form of the applicant’s questionnaire, implemented on the organization’s website on the Internet.

It is mandatory for the applicant to familiarize himself with the conditions for maintaining the personnel reserve in the organization, the storage period of his personal data, as well as the procedure for excluding him from the personnel reserve. ”

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 2 Article 13.11. “Processing of personal data without written consent of the subject of personal data to the processing of his personal data in cases where such consent must be obtained” – “an administrative fine for citizens in the amount of three thousand to five thousand rubles; for officials – from ten thousand to twenty thousand rubles; for legal entities – from fifteen thousand to seventy-five thousand rubles “.

Comment

The easiest way to ensure the non-punishable storage of a resume is to include consent to be included in the personnel reserve in the “standard” consent of the applicant to the processing of personal data. Just remember to comply exactly with the Clarifications of December 14, 2012 (see above).

Method 8. Take an interest in the applicant’s relatives

What we will break

Law “On Personal Data”. You can only find out from your full-time employee the degree of relationship, full name. and the years of birth of family members – this is the information, the collection of which is provided by the fields of the personal card T-2. If we are talking about an applicant, then even the consent obtained from him to the processing of personal data for the purpose of considering his candidacy for employment does not give you the legal right to receive data about his relatives, even if they are of great interest to your security service or manager.

You can receive and process any personal data of other persons only with their consent; to store and process personal data of the applicant’s relatives, you must obtain consent directly from them.

How to be punished

The collection of information that is not necessary for the employment of the applicant will qualify as “processing of personal data incompatible with the purposes of collecting personal data” entails the Code of Administrative Offenses of the Russian Federation, clause 1 Article 13.11. warning or imposition of an administrative fine on citizens in the amount of one thousand up to three thousand rubles; for officials – from five thousand to ten thousand rubles; for legal entities – from thirty thousand to fifty thousand rubles.

Comment

It is definitely not worth collecting and storing information about the applicant’s family members in writing, but if you consider it important, you are unlikely to be “attracted” for a question asked orally.

Method 9. Share your resume with colleagues without the consent of the applicants

What we will break

Law “On Personal Data”. Any action with other people’s personal data must be obtained permission.

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 2 Article 13.11. “Processing of personal data without written consent of the subject of personal data to the processing of his personal data in cases where such consent must be obtained” – “an administrative fine for citizens in the amount of three thousand to five thousand rubles; for officials – from ten thousand to twenty thousand rubles; for legal entities – from fifteen thousand to seventy-five thousand rubles “.

Comment

The law, of course, must be obeyed, but I have never heard of anyone being punished for such a violation.

Method 10. Check the recommendations of candidates without written consent

What we will break

Law “On Personal Data”. There must be the consent of the applicant, which indicates which organizations a potential employer can contact to collect personal data and what information he has the right to request.

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 2 Article 13.11. “Processing of personal data without written consent of the subject of personal data to the processing of his personal data in cases where such consent must be obtained” – “an administrative fine for citizens in the amount of three thousand to five thousand rubles; for officials – from ten thousand to twenty thousand rubles; for legal entities – from fifteen thousand to seventy-five thousand rubles “.

Comment

You do not have written consent, but you check the recommendations – you are breaking the law, in practice the recommendations are checked on the basis of the oral consent of the applicant, I have not yet met any court practice on such violations.

Method 11. Require “optional” documents from applicants

What we will break

Article 65 of the Labor Code of the Russian Federation – “It is forbidden to demand from a person applying for a job, documents other than those provided for by this Code, other federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation.

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 1 Article 5.27. – “Violation of labor legislation and other regulatory legal acts containing labor law norms, unless otherwise provided by parts 3, 4 and 6 of this article and Article 5.27.1 of this Code, entails a warning or the imposition of an administrative fine on officials in the amount of one thousand up to five thousand rubles; for persons engaged in entrepreneurial activity without forming a legal entity – from one thousand to five thousand rubles; for legal entities – from thirty thousand to fifty thousand rubles.

Comment

The violation is obvious, there is judicial practice, a professional must know the list of mandatory documents and not require optional ones.

Method 12. Do not provide a written refusal at the request of the applicant

What we will break

Ch. 5 tbsp. 64 of the Labor Code of the Russian Federation – “At the request of a person who is refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing no later than within seven working days from the date of such a request.”

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 1 Article 5.27. – “Violation of labor legislation and other regulatory legal acts containing labor law norms, unless otherwise provided by parts 3, 4 and 6 of this article and Article 5.27.1 of this Code, entails a warning or the imposition of an administrative fine on officials in the amount of one thousand up to five thousand rubles; for persons engaged in entrepreneurial activity without forming a legal entity – from one thousand to five thousand rubles; for legal entities – from thirty thousand to fifty thousand rubles.

Comment

If a written request is received, it must be executed on time, the refusal must be motivated, see Art. 64 of the Labor Code of the Russian Federation.

Method 13. Unmotivated refuse the applicant

What we will break

Article 64 of the Labor Code of the Russian Federation. – “Unjustified refusal to conclude an employment contract is prohibited. Any direct or indirect limitation of rights or establishment of direct or indirect benefits … not related to the business qualities of employees is not allowed, except in cases where the right or obligation to establish such limitations or benefits is provided for by federal laws.

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 1 Article 5.27. – “Violation of labor legislation and other regulatory legal acts containing labor law norms, unless otherwise provided by parts 3, 4 and 6 of this article and Article 5.27.1 of this Code, entails a warning or the imposition of an administrative fine on officials in the amount of one thousand up to five thousand rubles; for persons engaged in entrepreneurial activity without forming a legal entity – from one thousand to five thousand rubles; for legal entities – from thirty thousand to fifty thousand rubles.

Comment

A potential employee can be refused on such grounds as inappropriate education, insufficient work experience, lack of the necessary profession, qualifications, medical contraindications to work.

You can refer to regulations and local regulations, provided that the requirements specified in them do not contain deliberately illegal restrictions.

Method 14. Do not keep lists of interviews with drivers

What we will break

P. 11 The procedure for passing professional selection and vocational training by employees hired for work directly related to the movement of vehicles of road transport and urban land electric transport, approved by order of the Ministry of Transport of the Russian Federation of March 11, 2016 N 59) 11. “Results of the interview (with applicants ) Are entered in the interview sheets, which must be kept by legal entities and individual entrepreneurs for at least five years. ”

How to be punished

Code of Administrative Offenses of the Russian Federation, clause 1 Article 5.27. – “Violation of labor legislation and other regulatory legal acts containing labor law norms, unless otherwise provided by parts 3, 4 and 6 of this article and Article 5.27.1 of this Code, entails a warning or the imposition of an administrative fine on officials in the amount of one thousand up to five thousand rubles; for persons engaged in entrepreneurial activity without forming a legal entity – from one thousand to five thousand rubles; for legal entities – from thirty thousand to fifty thousand rubles.

Comment

The form of interview sheets has not been approved by the legislator, samples are easy to find on the Internet. This Procedure is perhaps the only regulatory legal act that describes in detail the procedure for the professional selection of applicants.

Method 15. Don’t notify the employment service about vacancies

What we will break

Clause 3 of Article 25 of the Law of the Russian Federation of 19.04.91 N 1032-1 “On Employment of the Population in the Russian Federation” – “employers are obliged to provide the employment service on a monthly basis with” information on the availability of vacant jobs and vacant positions. “

How to be punished

Art. 19.7. Of the Code of Administrative Offenses of the Russian Federation “Failure to provide information (information) -“ warning or imposition of an administrative fine on citizens in the amount of one hundred to three hundred rubles; for officials – from three hundred to five hundred rubles; for legal entities – from three thousand to five thousand rubles.

Comment

Do not notify – maybe it will, or notify, decide for yourself. Please note only that, as follows from the Letter of the Ministry of Labor and Social Protection of the Russian Federation of October 25, 2017 N 14-1 / B-953, the employment service does not have the authority to check the completeness of the information provided by employers on the availability of vacancies.

Method 16. Don’t report vacancies and jobs for people with disabilities

What we will break

Clause 3 of Article 25 of the Law “On Employment of the Population in the Russian Federation” – “employers are obliged to provide the employment services on a monthly basis” on the created or allocated jobs for the employment of disabled persons in accordance with the established quota for the employment of disabled persons, including information on local normative acts containing information about these workplaces, the fulfillment of quotas for the employment of disabled people. ” Art. 21 of the Federal Law of 24.11.1995 No. 181-FZ “On social protection of disabled people in the Russian Federation.”

How to be punished

Art. 19.7. Of the Code of Administrative Offenses of the Russian Federation “Failure to provide information (information) -“ warning or imposition of an administrative fine on citizens in the amount of one hundred to three hundred rubles; for officials – from three hundred to five hundred rubles; for legal entities – from three thousand to five thousand rubles.

Comment

Calculate the quota if your company has more than 35 employees, notify the employment service.

Method 17. Refuse a pregnant woman because of her pregnancy

What we will break

Art. 145 of the Criminal Code of the Russian Federation: “Unjustified refusal to hire or unjustified dismissal of a woman due to her pregnancy, as well as unjustified refusal to hire or unjustified dismissal from work of a woman with children under the age of three, for these reasons.” p>

How to be punished

Art. 145 of the Criminal Code of the Russian Federation: “a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months or compulsory work for a period of up to three hundred and sixty hours.”

What to do

I have not met the practice of applying this provision of the law. I don’t really know how to identify and prove such a violation.

Method 18. Refuse pre-retirement employment

What we will break

of the Criminal Code of the Russian Federation Article 144.1. “Unjustified refusal to hire or unjustified dismissal of a person who has reached the pre-retirement age. For the purposes of this article, the pre-retirement age is understood as the age period of up to five years preceding the appointment of an old-age insurance pension to a person in accordance with the pension legislation of the Russian Federation. ”

How to be punished

of the Criminal Code of the Russian Federation Article 144.1. – “Shall be punished with a fine in the amount of up to two hundred thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to eighteen months, or compulsory labor for a period of up to three hundred and sixty hours.”

What to do

Don’t break. Although this rule is rather populist and applies to individuals, it is unrealistic to prove the violation and bring to justice.

In conclusion

I would be glad if your work does not face inspections and sanctions from supervisory authorities.

Good luck in finding and recruiting personnel!

Денис Карандашев Author: Denis Karandashev

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