Hiring a former civil servant

Civil servants are highly qualified specialists. This is due to the increased requirements for admission to the civil service. This explains the willing hiring of these employees. However, a number of rules and restrictions apply to civil servants. Employers should be aware of them.

Question: Is it necessary to notify the representative of the employer of a former civil servant at his last place of service about the fact of concluding an internal part-time employment contract with him? View answer

Regulatory acts

Article 64.1 of the Labor Code of the Russian Federation states that when hiring a person to a company, the employer must inform representatives of the government body in which the employee was employed about this fact. A number of restrictions are imposed on the employee himself. The caveats are due to the fact that government employees may have important information obtained in the course of government work.

This information may be considered a state secret. That is, it cannot be used for commercial needs on the basis of Part 3 of Article 17 of the Federal Law of July 27, 2004 No. 79.

Part 1 of Article 64.1 of the Labor Code of the Russian Federation contains restrictions regarding employment in structures in which civil servants previously worked. This can only be done with the approval of the commission. The commission checks for conflicts of interest and corruption. If there is nothing of the kind, a work permit is granted. Part 1 of Article 17 of the Federal Law No. 273 dated December 25, 2008 provides another limitation.

Is it possible to conclude an employment (civil) contract with a former state (municipal) employee ?

In particular, a civil servant can be hired only if his salary in the company is less than 100,000 rubles. If a higher salary is expected, the approval of the commission must be obtained for employment. The features of its organization and the procedure for its activities are stipulated in Presidential Decree No. 821 dated July 1, 2010. Let's consider all the acts regulating the employment of a former civil servant:

• Labor Code of the Russian Federation.
• Federal Law on Civil Service.
• Federal Law No. 273 of December 25, 2008.
• Presidential Decree No. 821 of July 1, 2010.

Part 1 of Article 12 of Federal Law No. 273 states that it is necessary to notify the state body of employment within 2 years after dismissal from the structure. In addition, regulations establish the need to verify labor or civil agreements on the basis of which the employee will work in the company. They are checked for the presence of a corruption component.

Who should be notified and how should a former civil servant be hired ?

Former civil servant - real troubles

Every action of any person leaves a trace that affects not only his future life, but also the activities of other people. The circles of the past diverge along the river of time, affecting its flow. This image especially accurately conveys the nuances of labor relations between employing organizations and employees who previously served in state or municipal institutions.

— Elena, what must an employer do when hiring a former state or municipal employee into the organization?

— When hiring such an employee, the employer is obliged to notify the government organization within 10 days. Let me remind you how this is written in the Labor Code of the Russian Federation. In accordance with Art. 64.1 of the Labor Code of the Russian Federation, “an employer, when concluding an employment contract with citizens who filled positions in the state or municipal service, the list of which is established by regulatory legal acts of the Russian Federation, within two years after their dismissal from state or municipal service, is obliged to report the conclusion of such an agreement to the representative within ten days employer (employer) of a state or municipal employee at his last place of service in the manner established by regulatory legal acts of the Russian Federation.”

— How can an employer determine whether an employee being hired belongs to the category of former civil servants?

— In theory, the obligation to report places of civil service within two years after dismissal from it is assigned to the former civil servant himself. This is provided for in Art. 64.1 Labor Code of the Russian Federation.

Moreover, if a citizen - a former civil servant gets a job in a commercial organization, and during his civil service certain functions of public administration of this organization were part of his job responsibilities, he has the right to get a job there only with the consent of the commission for compliance with the requirements for official conduct of state or municipal employees and conflict of interest resolution. If there is no such consent, then in the future the employment contract with the former civil servant may be terminated at the request of the supervisory authorities.

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— As practice shows, former civil servants are not always aware of their responsibilities. What should the employer do in this case?

— A HR specialist who recruits new employees must, in any case, perform several actions.

Firstly, carefully review all the entries in the work book of the hired employee for the last two years to understand whether the person was in the public service during this period. A clue may be the grounds for dismissal. For example, when dismissing from the state civil service, a record of dismissal is made in accordance with Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation”, and not in accordance with the Labor Code.

Secondly, if it is discovered that during the last two years (at the time of joining the company) a person was in the public service, the former civil servant’s employer at his last place of work should be informed about this within 10 days from the date of conclusion of the employment contract. The message must be prepared in accordance with the requirements of Decree of the Government of the Russian Federation dated January 21, 2015 No. 29. An important point: according to the Labor Code of the Russian Federation, it is necessary to inform the former employer only if the position of the former civil servant was included in the list established by Decree of the President of the Russian Federation dated July 21, 2010 No. 925. These lists are quite difficult to find in open sources. In this regard, we advise you to inform the previous employers of the hired employee in all cases, regardless of what position he held.

And thirdly, before concluding an employment contract, recommend that the former civil servant (if he has not already done so) contact the commission for compliance with official conduct requirements at the place of civil service in order to obtain consent to the right to hold positions in commercial organizations in cases provided for by law.

— What mistakes and violations do employers most often make when concluding an employment contract with a former civil servant?

— There are several most common mistakes. Typically, employers forget to ask candidates about past civil service/check their work history and, as a result, do not inform former employers at the place of civil service or report in violation of deadlines. Sometimes, without finding an appropriate list, employers decide that there is no need to issue a message.

— And what are the consequences for an employer of violating the procedure for hiring a former civil servant?

— If the employer does not report or does not comply with the procedure for reporting the conclusion of an employment contract with a former civil servant, he is liable in accordance with Art. 19.29 Code of Administrative Offenses of the Russian Federation: administrative fine imposed on officials - from 20 to 50 thousand rubles; for legal entities - from 100 to 500 thousand rubles.

As a rule, when determining an administrative penalty, the severity of the violation and the fact whether it is a primary violation or not are taken into account.

If a former civil servant violated the requirements of Law No. 273-FZ, did not notify the new employer or did not obtain the consent of a special commission at his previous place of employment, then the employment contract with him must be terminated, and the former civil servant must be dismissed (paragraph 5, part 1, art. 84 Labor Code of the Russian Federation). Dismissal is made according to clause 11, part 1, art. 77 Labor Code of the Russian Federation. Moreover, upon dismissal on this basis, severance pay is not paid (Part 3 of Article 84 of the Labor Code of the Russian Federation).

If the former civil servant fulfilled all the requirements of the law, but did not receive the consent of the commission, the employment relationship is terminated in accordance with clause 13, part 1, art. 83 Labor Code of the Russian Federation.

In this case, no penalties will be applied to the employer, but he himself will have to spend additional funds on finding and training a new employee.

Positions subject to regulations

IMPORTANT! Notice of hiring a former civil servant from ConsultantPlus is available here

Not all civil servants have access to state secrets. Consequently, restrictions do not apply to all applicants. The list of civil servants is specified in Presidential Decree No. 557 dated May 18, 2009.

Let's look at it:

• Leadership representing the executive branch.
• Military leadership.
• Administrative and economic workers.
• Employees engaged in organizational, administrative and control work.
• Managers of budget funds.
• Property managers.
• Persons involved in issuing a license.
• Distributors of technical objects.

All these government employees must comply with the established restrictions.

How to fill

When drawing up an information message about the hiring of a former civil servant, the manager must adhere to the rules prescribed in Government Resolution No. 29. So the document should contain information about:

• Full name of the hired employee. If there was a previous change of first or last name, then this fact must be recorded;
• date and place of birth of the citizen;
• the last position held by a person in government bodies. The entry must correspond to the one left in the work book;
• full name of the employer's organization;
• about the full details of the order or other instructions according to which the person was hired and began to perform his duties;
• about the details and type of the concluded agreement;
• about the full name of the department and the person’s new position;
• about the official responsibilities assigned to a person.

Every company should have a sample notification for hiring a former civil servant in 2020. In exceptional cases, the list of information that must be contained in the notice may be expanded.

Notification Features

When drawing up an employment agreement with a former worker who worked for government agencies less than 2 years ago, you must send a written notification to these authorities. It is sent exactly to the body in which the employee worked. The notice must be sent in such a way as to prevent claims from arising. In particular, government agencies should not be allowed to blame the employer for the lack of notification. To do this, you need to have documents confirming dispatch and delivery.

For example, this could be a registered letter with notification. It must be sent to the exact address of the government structure.

The notification must be sent. This is due to the fact that for 2 years government agencies have the right to monitor the activities of their former employees. This is stipulated in Article 12 of the Federal Law “On Combating Corruption” No. 280. A similar rule is contained in Article 64.1 of the Labor Code of the Russian Federation. However, the employer may not send notice if the employee was employed in positions not included in this list:

• Contained in Decree No. 557.
• Established by the law of the federal entity in which the civil servant worked.

If the employer has doubts about the need to send a notice, it is still recommended to send a message. This will prevent the application of penalties.

IMPORTANT! The notification must be sent within 10 days from the date of signing the employment agreement.

A former civil servant also has a number of responsibilities. In particular, he must notify the employer of his past work in government agencies. He must also tell what position he worked in. No written notice is required. A verbal warning is sufficient. This feature is due to the fact that all the required information is already contained in the work book.

Actions when hiring a former civil servant

When drawing up an employment contract, both parties must perform certain actions.

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For employee

The employee is obliged to inform the employer that he previously held a position in government agencies and provide information about the nature of the work, since the work book usually only indicates work experience in a particular government agency.

The employee must provide information directly when signing the contract so that the employer can fulfill its obligations within the period established by law.

Information can be provided either orally or in writing. If for some reason there is no record of work in the labor record, then it is better to provide the information in writing.

For the employer

After the employer has established the fact that the citizen was previously employed by government agencies, he must draw up a letter stating that he hired this employee and send it to the address of the former employer (government agency). The legislation does not establish how to send letter, but it is better to do this by mail with notification.

The legislation gives the authority to the prosecutor's office to inspect organizations for the hiring of former civil servants who are listed in their database for 2 years from the date of dismissal. The number of checks is not limited.

Contents of the notice

There is no established sample notification. It can be compiled in free form. However, the information must be clearly and understandably presented. In particular, the notification must contain the following information:

• Full name of the employee.
• The position held by the employer in a government agency.
• Name of the government structure.
• Information about the order for admission to the company (number, date).
• Date of conclusion of the employment agreement.

The notice must be printed on letterhead. If there is no letterhead, you need to put a stamp in the upper right corner with the details of the legal entity. The signature of the manager or authorized person is placed on the paper. The paper should be sent by registered mail with notification. It also doesn’t hurt to make an inventory of the investments, otherwise a government agency may accuse the company of not having anything in the envelope. It is recommended to keep the receipt and the received notification of receipt of the letter for 6 years. It is during this period that documents may be requested.

Peculiarities

When concluding an employment contract with a person who was previously listed as a civil service employee, and no more than 2 years have passed since his dismissal, the new manager is obliged to notify the person’s former employer about this.

This obligation is enshrined in Article 64.1 of the Labor Code of the Russian Federation and Article 12 of Federal Law No. 273. It is worth considering that the notification is sent even if the former civil servant was previously employed.

At the legislative level, there is a list of positions for which a notification is required. The manager can make sure that there is a need to send the document to the employee’s old place of work.

To do this you need:

• refer to the reference and legal systems in which this list is established;
• study the anti-corruption area on the official website of the federal government agency;
• go to the official website of the government agency in which the person was registered in the state or municipal service;
• send a personal request to the citizen’s former place of work.

It is worth considering that the new employee informs the employer that he was previously a civil servant, and also names the position from which he was fired. This information can be provided orally, as detailed information will be reflected in the work book.

If the employee ignored this requirement, then in accordance with Art. 84 of the Labor Code of Russia, the manager is obliged to immediately terminate the employment contract, based on Article 77 of the Labor Code of the Russian Federation.

Employer's liability

It is established at the legislative level that the manager is obliged to send a message about the hiring of a former government employee. If this is not done, then penalties will be applied to the employer in accordance with Article 19.29 of the Code of Administrative Offenses of the Russian Federation in the amount

An employer can be held accountable within 6 years from the date the offense was committed.

It is worth noting that if the employee did not provide the manager with information about the previous place of work, and there were no corresponding entries in the work book, then in such a situation the employer does not bear any responsibility for the lack of notification.