Employment relations with this employer: some disadvantages of legal regulation

Rakitina Ekaterina Vasil'evna PhD in Law Associate Professor; Department of Civil and Criminal Law and Procedure; Chita Institute (branch) of the Baikal State University 672000, Russia, Zabaikalsky Krai, Chita, Anokhina str., 56 ekat-rakitina@yandex.ru Other publications by this author

Employment relations with this employer, by virtue of Article 1 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), are included in the subject of labor law. At the same time, there is no structural element (chapter, section) in the Labor Code of the Russian Federation devoted to such relations. The lack of clear regulation of employment relations for this employer raises many questions, starting from the nature of such relations, ending with the procedures for selecting candidates for employees and verifying their business qualities. The unsettled nature of relations related to the procedures for selecting candidates, checking them on a polygraph, and using job offers leads to the possibility of violating the rights of subjects of these relations (more often a candidate for employees), whose protection is not guaranteed in conditions of legal uncertainty.

Employment relations and employment relations in general have received enough attention in the science of labor law. A.V. Serova, E.E. Orlova, E.V. Yashurina, and others devoted their works to the study of these issues. At the same time, the appearance in practice of facets of employment relations that are not regulated by law explains the relevance of the research topic.

The subject of this study is some shortcomings of the legal regulation of employment relations with this employer. The improvement of legislation on these issues is possible based on the identified gaps and inaccuracies. The use of general scientific (analysis, synthesis) and special legal (formal-logical, methods of systematic and literal interpretation of legal norms) methods made it possible to study scientific sources on the topic of research, to substantiate the existence of a "disjointed" legal regulation of the relations in question, which gave reason to conclude that labor law regulation of these relations is necessary.

The views of this employer on the nature and content of employment relations are different. Confusion is also caused by the fact that in the science of labor law, both the legal term "employment relations with a given employer" and the broader "employment relations" are used.

Employment relations include pairwise interaction between the employer, the State employment service and the employee. Some authors believe that of this triad, only the interaction between an employee and an employer falls within the scope of labor law. Such relations take place when an employee contacts the employment service, which directs him to a specific employer ^{[1, p. 74]}.

That is, the relationship between the employee and the employer is mediated, the employment service performs the function of an intermediary. In this understanding, the employment relationship of a given employer is the "labor law part" of a broader employment relationship. In general, employment relations are of a complex intersectoral nature and go beyond the scope of labor law ^{[2, p. 52]}.

Another point of view is that employment relations are by their nature administrative and should not be included in the subject of labor law ^{[1, p. 73]}.

At the same time, this discussion does not pay attention to the relationship directly between a potential employee and an employer. Participation in employment relations by the employment service is not necessary in order for these relations to fall within the scope of labor law. The candidate (applicant, potential employee; on the issue of subjects of employment relations, see ^[3]) can interact with the employer directly. This happens if the candidate has responded to a job advertisement, or a potential employer has responded to a resume posted by the applicant. Such relationships also relate to employment relationships with a given employer ^[4].

It seems that both options – employment through the employment service or the interaction of an employee and an employer without intermediaries – need legal regulation and fall within the scope of labor law. In both cases, the employer has the right to select candidates for work for subsequent employment. It is in this sense that the employment relationship of this employer is considered in this article.

The mentioned absence in the Labor Code of the Russian Federation of a separate structural element regulating employment relations does not mean that the Labor Code of the Russian Federation ignores employment issues altogether. The norms affecting these issues include the norms on the grounds for the emergence of an employment relationship (Articles 16-19.1 of the Labor Code of the Russian Federation), on the conclusion of an employment contract (in terms of actions of both the employee and the employer preceding the conclusion of the contract: preliminary medical examinations, verification of the knowledge and skills of the person employed in underground work, relevant qualification requirements (Article 330.2 of the Labor Code of the Russian Federation), etc.).

However, not all issues of employment with this employer that require legal regulation have been reflected in labor legislation.

The legal regulation of the selection procedures among candidates for employees; verification of the candidate's business qualities; the procedure for inviting a potential employee to work by the employer looks meager, and sometimes even blank.

The selection of candidates for employees includes checking the applicant's compliance with formal requirements (age, no prohibition to hold certain positions or engage in certain activities, no disqualification, criminal record) and substantive requirements (availability of education, certain qualifications, work experience). The selection may consist in comparing the documents submitted by candidates, or in conducting certain selection procedures (interview, testing, competition, etc.).

The requirements imposed on the applicant cannot be arbitrary and depend on the job they are applying for. When introducing a ban on unjustified refusal to hire (Article 64 of the Labor Code of the Russian Federation), the employer uses the collective concept of "business qualities of an employee", the content of which is explained in the resolution of the Plenum of the Supreme Court of the Russian Federation dated 03/17/2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation".

It should be noted that judicial practice extends the guarantee of the prohibition of unjustified refusal to hire (refusal not based on the employee's business qualities) and in cases of transfer of an employee to another job with this employer (Definition of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation dated 09/12/2022 No. 5-KG22-73-K2).

The content of the requirements imposed by the employer on the applicant is established by referring to qualification reference books, professional standards, local regulations, and other regulations. The procedure for identifying a candidate's compliance with these requirements, as a rule, is determined by the employer independently (including using digital technologies – see ^[5]).

For certain types of positions and employers, the legislator provides for specific selection procedures: election to a position (Article 17 of the Labor Code of the Russian Federation; for example, the dean of the faculty – part 11 of Article 332 of the Labor Code of the Russian Federation), election by competition (Article 18 of the Labor Code of the Russian Federation; for example, associate professor of the university department – part 2 of Article 332 of the Labor Code of the Russian Federation).

E.V. Yashurina criticizes the situation in which the procedures for checking business qualities are regulated for some employers, and are "outside the legal field" for other employers. Such a difference in status gives reason to talk about the unspoken division of all employers by the legislator into two types. And this cannot but affect the different situation of people applying for jobs in terms of protecting their rights.

The author considers the existing practice of regulating competitive selection procedures by a local regulatory act to be not fully consistent with Article 18 of the Labor Code of the Russian Federation, and in order to eliminate the existing difference between employers, resulting in a difference between employees, E.V. Yashurina proposes to amend the wording of Article 18 of the Labor Code of the Russian Federation ^{[6, p. 217]}.

In general, it is worth agreeing with the insufficiently clear regulation of competitive selection by labor legislation. At the same time, employers are still trying to regulate the issues of selection procedures at the local level (providing for the procedure, deadlines, selection criteria, etc.). By establishing the selection procedure, the employer is limited by the provisions of the Constitution of the Russian Federation, the Labor Code of the Russian Federation and other regulatory legal acts.

But the legislator's "silence" regarding the employer's use of a polygraph test, the use of "job offers" (hereinafter referred to as a job offer) does not add certainty to the employment relationship of this employer.

Polygraph examination of a potential employee (psychophysiological examination) as one of the elements of the selection procedures for employment, it is a common phenomenon. At the same time, the labor legislation ignores such a study. Judicial practice generally recognizes the right of an employer to apply a polygraph test for employment (see, for example, the decision of the Mikhailovsky District Court (Volgograd Region) dated 02/16/2012 in case No. 2-159/2012; the ruling of the sixth Court of Cassation of general jurisdiction dated 11/12/2020 in case No. 2-335/2020).

Based on Article 21 of the Constitution of the Russian Federation, it can be argued that a polygraph test is possible only with the consent of the person being checked. This is consistent with the provisions of Article 86 of the Labor Code of the Russian Federation on obtaining personal data only with the written consent of the employee. The research must comply with the requirements for obtaining information about political, religious views, intimate life and other information classified in a special category of personal data.

At the same time, such a "disconnection" of information about a polygraph test when applying for a job negatively affects the state of protection of the rights of a potential employee. In other words, it cannot be said that psychophysiological research in employment is in a legal vacuum, but the lack of special labor law regulation of the use of a polygraph opens up scope for possible abuses. The science of labor law recognizes the need to regulate relevant relations directly in the Labor Code of the Russian Federation ^{[7, 8]}.

The elimination of this shortcoming is possible by introducing amendments to the Labor Code of the Russian Federation providing for:

a) the procedure for establishing requirements for a technical means and qualification requirements for a polygraph examiner;

b) organization of a polygraph test at the expense of the employer;

c) passing the examination only with the written consent of the candidate for the job, as well as the opportunity to refuse to continue the study;

d) the range of questions asked and the research methodology should not go beyond the employer's goal of checking the business qualities of a potential employee;

e) the conclusion based on the results of the study cannot be an independent basis for refusal to apply for a job.

Going beyond the scope of the topic of this article, it is worth noting that the use of a polygraph test is possible not only at the stage of employment, but also during the employee's work (with promotion, anti-corruption activities of the employer, etc.). However, the general requirements for conducting a psychophysiological study do not change, despite differences in the purpose of the study.

Another phenomenon that needs to be introduced into the legal field is the widespread practice of using job offers. The employer makes an offer to the candidate, which contains information about the position, subordination, basic conditions, which then logically should go into an employment contract concluded by the parties, some corporate benefits, bonuses, etc. That is, the offer is addressed to a specific addressee, contains information necessary for making a decision on employment, and gives reason to believe that the employer is interested in this particular candidate.

However, due to the lack of legal regulation on this issue, the job offer has no legal force and the only factor deterring the employer from subsequently refusing work to the person to whom the offer was sent is the image of the company. For an unscrupulous candidate who first encouraged the employer, which was why other candidates were rejected, and then refused to conclude an employment contract, this factor is even less significant.

In the practice of applying a job offer, there is no unity regarding the form (oral or written), bilateral or unilateral nature, the degree of "connectedness" between the offer of the employer and the candidate who agreed to it, etc.

Disputes arising in practice in the absence of legal regulation are resolved either by "equating" the situation with an invitation to transfer to another employer existing in labor law (Definition of the Eighth Court of Cassation of General Jurisdiction from 14.01.2021 № 88-468/2021, 2-184/2020), or based on the postulate "no employment contract – no violation" (Definition of the Eighth Court of Cassation of General Jurisdiction No. 88-6667/2020 dated 30.04.2020).

In science, the need to regulate the relations that have developed in practice is generally recognized ^{[9, 10]}. Based on a comparison of the job offer with the offer of vacant positions provided for by the Labor Code of the Russian Federation (in case of a reduction in the number or staff of employees, for example); with a transfer to another employer, it is concluded that the job offer does not amount to those legal structures that exist in the Labor Code of the Russian Federation at the moment.

Also, as a rule, it is unacceptable (or at least problematic) to apply civil law structures of the preliminary contract and the offer -acceptance bundle to relations regulated by labor law.

As a result, there is a situation when in practice a certain construction (job offer) is widely used that does not fall under the scope of labor legislation, to which the norms of civil legislation cannot be applied, and which can generate disputes with unacceptably unpredictable results.

On the one hand, a job offer can be replaced by an employment contract with delayed entry into force or a delayed start date. In this case, the situation is completely within the legal framework and will not cause the court or the parties to the process to have questions about the qualification of the legal relationship in the event of a dispute.

However, in practice, it is the job offer that is more often used as a certain stage in concluding an employment contract, which, nevertheless, may not end with the conclusion of an employment contract. Therefore, the need for legal regulation of the job offer is obvious.

Let's try to formulate proposals on the legal regulation of the job offer.

1. The offer form must be in writing (paper or electronic).

2. The job offer must contain information that forms the core of the employment contract: an indication of the labor function, remuneration, if necessary, a structural unit, and other mandatory conditions provided for in Part 2 of Article 57 of the Labor Code of the Russian Federation.

If the concluded employment contract contains conditions less favorable for the employee than those provided for in the job offer, it is considered possible to recognize the employment contract concluded on the terms specified in the offer in court at the employee's claim.

In general, if the terms of the job offer and the terms of the concluded employment contract do not match, priority should be given to those conditions that are more favorable for the employee.

3. The job offer must come from the employer or his authorized representative (on this issue, it seems acceptable to borrow the scheme that exists for actual admission to work).

4. A deadline must be set for expressing the consent of a potential employee. A candidate who has given written consent to a job offer is obliged to reimburse the employer for all expenses incurred from the moment of expressing consent related to his employment (payment for a medical examination, polygraph test, travel from another area, etc.), in case of subsequent refusal of employment without a valid reason.

5. If the candidate who received the offer and gave his consent to it does not pass all the necessary checks (aimed at identifying the business qualities necessary to perform the work), the employer may not conclude an employment contract with him. However, the candidate must be reimbursed for the expenses that he incurred in connection with employment with this employer after receiving a job offer.

6. The job offer must specify a specific date for the employer to make a final decision regarding the conclusion of an employment contract with the candidate. This is necessary so that a potential employee can resolve the issue of dismissal from a previous job.

If the dismissal takes place before the specified date, and the issue of concluding an employment contract is resolved negatively, the candidate is not entitled to compensation for any losses. If the dismissal from the previous place of work takes place later than the date specified in the job offer, then the failed employer, in case of refusal to conclude an employment contract, will have to reimburse the candidate for losses in the form of lost earnings, which was indicated in the job offer, for example, in three times the amount.

The question arises – is it possible, in case of refusal to conclude an employment contract later than the date indicated in the job offer, to force the employer to conclude an employment contract? It seems that this is possible only if the refusal itself was unreasonable. In this case, appealing the refusal in court has prospects, including in terms of employment – it is not for nothing that Article 16 of the Labor Code of the Russian Federation calls a court decision one of the grounds for the emergence of an employment relationship (for more information on this issue, see ^[11]).

Summing up the research, it is worth noting that the employment relations of this employer, which are included in the subject of labor law, have not received sufficient attention from the legislator. During the period when the issue of concluding an employment contract is being resolved, there are many situations for which the Labor Code of the Russian Federation does not provide for legal regulation.

The article substantiates the need for clearer regulation of the selection procedures applied by the employer. Psychophysiological research in the selection of candidates should also be fixed in the Labor Code of the Russian Federation, which will ensure that the employer uses an informative means of selection among candidates for employees (subject to the protection of their personal data), without attaching decisive importance to this means.

The practice of using job offers also needs legal regulation. The Labor Code of the Russian Federation should provide requirements for the form and content of a job offer, establish options for interaction between the candidate and the employer in various situations, the timing of expressing consent to conclude an employment contract, and the consequences of the parties' refusal to fulfill the job offer. Considering that in practice disputes often arise due to the premature dismissal of a candidate from a previous job, the article provides options for getting out of this situation.

The proposals formulated above require discussion, while the need to improve the legal regulation of employment relations with this employer in the areas discussed in the article seems indisputable.