Rights of pre-retirees upon dismissal by agreement of the parties or reduction in 2020

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The procedure for laying off employees near retirement age can become more complicated.
Deputy Oleg Mikheev developed and submitted a corresponding bill to the State Duma. It is proposed to establish by law that in the event of a reduction in the number or staff of employees, persons of pre-retirement age are given preference in remaining at work. “No one has the right to force people who have only a couple of years left before their well-deserved rest to quit their jobs early! “- the initiator of the idea is confident.

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Termination of an employment contract when staffing is reduced is permitted if it is impossible to transfer, with his consent, to another job (including retraining).

When terminating an employment contract, the employer is obliged to notify the employee in writing at least two months before dismissal, unless longer periods are provided for in the collective bargaining agreement, as well as notify the state employment service about the upcoming dismissal of the employee, indicating his profession, specialty, qualifications and amount of wages.

What rights may employees have upon dismissal?

Legal regulation in the field of labor relations does not provide for special rights for persons who have 5 years or less left until retirement. They have all the same opportunities as other categories of workers during layoffs.

  • The right to receive. It must be submitted in writing at least 2 months before the upcoming dismissal ().
  • Preferential right to remain at work (). This right is granted to persons who have higher qualifications and/or labor productivity. Age does not matter, but, as a rule, people of pre-retirement age are very competitive in terms of qualifications and productivity and can easily exercise this right.
  • Receive a paycheck and work book on the day of dismissal - Art. 84.1, 140 of the Labor Code of the Russian Federation (what is written in the Labor Code if an employee is fired due to the fact that staffing is being reduced, you can find out).
  • The right to familiarize yourself with the dismissal order ().
  • The right to transfer to another position in the same area (and if there is a collective agreement, then in another area). Dismissal is the last and last resort. First, the employer must offer all other vacancies that will suit the employee’s qualifications (we told you what the procedure is for offering vacancies to an employee before layoffs). You may also be offered a job that is lower in qualifications or pay ().

Article 140 of the Labor Code of the Russian Federation. Payment terms upon dismissal Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day of dismissal of the employee. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.

Law Club Conference

The organization plans to lay off an employee of pre-retirement age (2 years before retirement) taking into account all the guarantees and procedures provided for by the Labor Code. However, in the commentary to the TC I read the following:

“It must be taken into account that in part 2 of Art. 179 of the Labor Code does not exhaustively name the life circumstances that are taken into account when reducing the number or staff of employees. So, for example, it is not customary to dismiss people of pre-retirement age; when laying off, both the conscientious attitude to work, the discipline of the employee, etc. are taken into account.

Measures to protect people of pre-retirement age from layoffs

The procedure for laying off employees near retirement age can become more complicated. Deputy Oleg Mikheev developed and submitted a corresponding bill to the State Duma.

It is proposed to establish by law that in the event of a reduction in the number or staff of employees, persons of pre-retirement age are given preference in remaining at work. “No one has the right to force people who have only a couple of years left before their well-deserved rest to quit their jobs early!” – the initiator of the idea is confident.

On the dismissal of an employee of pre-retirement age due to staff or headcount reduction

Can an employer dismiss an employee of pre-retirement age due to a reduction in numbers or staff (if at the time of dismissal there are 2 years and 1.5 months left before retirement)?

Making a decision to change the structure, staffing table, and the required number of employees of an organization falls within the exclusive competence of the employer, who, exercising these powers, has the right to terminate (under paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation) the employment contract with employees subject to layoffs, if subject to compliance with the dismissal procedure established by law and provision of appropriate guarantees to dismissed employees.

Good reasons for legal dismissal

The contents of the Labor Code of the Russian Federation (Article 81) describe in detail all the cases when a boss can show a person “the door”: 1. Liquidation of an organization - then the entire staff is dissolved, including the manager himself. Everyone will have the following written in their work books: “Was dismissed due to the liquidation of the enterprise.”

This is not considered an “unfortunate entry” because such misfortunes do happen.

2. Reduction of staff - such a decision is made by the boss, wanting to reduce expenses on paying salaries. 3. Employee non-compliance is identified after an internal audit. Then the lack of experience, education or professional skills will become a reason for a reduction in salary, position, and also deprivation of work.

4. The owner of the enterprise has changed - management usually suffers. After all, the old director, his deputies + the chief accountant will be fired, the ordinary employees will all remain. 5. Repeated violation of labor discipline by an employee, committing an immoral act.

Perhaps the decisions he made caused great losses for the enterprise. 6. Providing false information and forged papers when applying for a job. 7. Fraudulent machinations carried out by a citizen were identified. 8. Committing theft by an employee, forgery, deliberate damage to the property of the institution. Any of the factors described above must be documented.

Any of the factors described above must be documented.

You cannot act rashly or falsify the reason for dismissal.

If you are dismissed due to staff reduction, you can apply for an early pension. so or this

Question: I heard that if you are fired due to staff reduction, you can get an early pension. Has this rule changed? We plan to lay off two employees close to retirement age.

Answer: Indeed, employees of pre-retirement age whose employment contract was terminated due to a reduction in staff numbers have additional guarantees.

Firstly, citizens who have not reached the age of 60 years for men and 55 years for women and have an insurance record of at least 25 and 20 years for men and women, respectively, as well as the necessary length of service in the relevant types of work, giving them the right to early appointment old-age labor pension, the duration of the unemployment benefit payment period increases beyond the established 12 months by two calendar weeks for each year of work exceeding the insurance period of the specified duration (Part.

Who will be considered pre-retirement?

At the moment, there is a transition period in which the state is gradually (six months per year) raising the retirement age, and by 2024 it will be 53 years for women and 58 years for men. During the transition period, it is quite difficult to calculate when pre-retirement age occurs. To calculate, you can use the following table:

Gender and year of birthPre-retirement years
Women born 01/01/1964 – 06/30/19642014-2019
Women born 07/01/1964 – 12/31/19642015-2020
Women born 01/01/1965 – 06/30/19652016-2021
Women born 07/01/1965 – 12/31/19652017-2022
Women born in 19662019-2024
Women born in 19672021-2026
Women born in 19682023-2028
Men born 01/01/1959 – 06/30/19592014-2019
Men born 07/01/1959 – 12/31/19592015-2020
Men born 01/01/1960 – 06/30/19602016-2021
Men born 07/01/1960 – 12/31/19602017-2022
Men born in 19612019-2024
Men born in 19622021-2026
Men born in 19632023-2028

This is important to know: Federal Law 342: retirement
It is important to know when an employee becomes a pre-retirement employee, since pre-retirement employees have some benefits that ordinary employees do not have:

If you want to find out how to solve your particular problem in 2020, please contact us through the online consultant form or call :

  1. Two days for medical examination per year, for other employees - one day every two years (Article No. 185.1 of the Labor Code of the Russian Federation). Days of medical examination are paid “on average” (the average salary for a certain period).
  2. Pre-retirees have the right to undergo retraining and take advanced training courses at the expense of the employer , who will be reimbursed for these funds from the budget (Order of the Government of the Russian Federation No. 3025-r dated December 30, 2018).
  3. Protection of pre-retirees from layoffs without good reason.

Dismissal before retirement age

3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;

a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);

b) the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other) that became known in connection with the performance of his job duties, including disclosure of personal data of another employee;

d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (industrial accident.

What to consider when making redundancies during study leave

If your employee is on study leave, do not dismiss him due to redundancy before returning from such leave. The fact is that dismissal on such grounds is prohibited for those who are on vacation (regardless of its type), which follows from clause 2, part 1, part 6 of Art. 81 Labor Code of the Russian Federation.

For dismissing an employee during study leave, you may be held liable under Parts 1 and 2 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. In addition, the court may reinstate the employee at work and oblige you to pay him for the period of forced absence (paragraph 1, 2 of article 234, part 1, 2 of article 394 of the Labor Code of the Russian Federation, paragraph 1 of paragraph 60

Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

We advise you to fire the employee on his first working day after vacation. But keep in mind that this can only be done if you have previously taken the necessary measures to reduce the layoff, including notifying the employee within the prescribed period of dismissal and offering him suitable vacancies.

If you did not have time to carry out such measures before the employee goes on vacation, then be sure to complete them before formalizing the dismissal, otherwise it may be considered illegal.

Dismissal due to staff reduction before retirement age

When the number or staff of employees is reduced, priority right to remain at work is given to employees with higher labor productivity and qualifications.

With equal labor productivity and qualifications, preference in remaining at work is given to: family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is their constant and main source of livelihood); persons in whose family there are no other independent workers; employees who received a work injury or occupational disease while working for this employer; disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland; employees who improve their qualifications in the direction of the employer without interruption from work.

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