Maternity pay: what it is, the pros and cons of replacing a maternity worker

The employer’s obligation to offer vacant positions during layoffs is stated in two interrelated norms - Part 3 of Article 81 and Part 1 of Article 180 of the Labor Code of the Russian Federation.

Both articles cited use the term “vacancy position.” However, its decoding is not given in the Labor Code of the Russian Federation. This creates questions about what is meant by it and whether the positions of workers on maternity leave, child care, as well as the “free” parts of the rates are vacant.

Maternity positions are not vacant

Maternity positions are not vacant, it is not necessary to offer them - this is the dominant point of view and most courts, when considering disputes about illegal layoffs, do not recognize maternity positions as vacant. After all, an employee on parental leave retains his job. This means that his position cannot be vacant. Let's give a few examples.

In the decision dated November 27, 2017 in case No. 2-3544/2017, the Oktyabrsky District Court of Tambov noted:

...Within the meaning of current legislation, a vacant position (job) is a position (job) provided for in the organization’s staffing table, which is vacant, that is, not replaced (not occupied) by any specific employee who is in an employment relationship with the organization. Based on this, a position filled by a temporarily absent employee, for whom, in accordance with the law, this position is retained, including in the case of maternity leave or child care, cannot be considered vacant.
The employer’s obligation to offer an employee who is subject to dismissal due to a reduction in headcount or staffing, temporarily vacant positions, including in connection with the main employee being on parental leave, is not provided for by current labor legislation.
Thus, since such a rate is not vacant, the decision to hire another employee during the absence of a permanent employee can be made exclusively by the employer himself. Since the law does not provide for the obligation to offer such a position to a laid-off employee, violations of the plaintiff’s rights by the employer’s actions in this part have not been established...

The decision of the Pereslavsky District Court of the Yaroslavl Region dated October 12, 2017 in case No. 2-1343/2017 states the following:

...The court, assessing the plaintiff’s arguments about the position of design engineer not offered to her, comes to the conclusion that it is unfounded. The indicated position is occupied by... (an employee - author's note) who is on maternity leave. In accordance with the provisions of Part 3 of Art. 81 of the Labor Code of the Russian Federation, the employer is obliged to offer an employee subject to dismissal under clause 2, part 1 of Art. 81 of the Labor Code of the Russian Federation, only vacant positions, and not temporarily vacant ones, while positions occupied by persons on maternity leave or child care leave are not vacant...

The Sovetsky District Court of Bryansk, in its decision dated September 19, 2016 in case No. 2-4767/2016, indicated that

The plaintiff’s reference to the availability of the position of head of the personnel department cannot be taken into account by the court, since this position was occupied by employee B., who was on parental leave at the time of notification of the plaintiff about the layoff (order No. 27-k dated 05/10/2016), i.e. was not vacant.

A similar conclusion was made by the Leninsky District Court of the city of Orsk in its decision dated November 3, 2017 in case No. 2-1393/2017:

Based on Part 4 of Art. 256 of the Labor Code of the Russian Federation, an employee on parental leave retains his job, that is, the position of such an employee cannot be vacant. Taking into account the above, the employer is not obliged to offer positions to employees on parental leave.

Advantages and disadvantages of the maternity rate

Taking a temporary position related to the maternity leave of the main employee has both positive and negative aspects. Before agreeing to such a job, it is worth analyzing them.

Disadvantages of maternity pay

The inherently transient nature of the work . When applying for a maternity position, a person must be aware that he will have to leave it.
Unpredictability of deadlines . Since a “maternity leaver” has the right to be absent for either 140 days or more than three years, it is impossible to predict when the cooperation will end and plan further employment. If the term of the employment contract comes to an end, the employer may not even warn about the impending freedom in the usual two weeks: if the employee-mother returns to her position suddenly, the employee taken in her place will be fired on the same date.
Minimum guarantees. Dismissal under this type of contract will not occur at the initiative of the employer, but due to circumstances that do not depend on the will of the parties: after all, the return of the main employee from maternity leave cannot be planned.
Such a reason for dismissal does not guarantee social protection and additional compensation payments: a pregnant woman, a single mother, or a person caring for a disabled person can be fired.
Upon dismissal, such an employee will receive only regular wages and compensation for annual leave if he did not have time to use it.
Insecurity in the event of one's own pregnancy . When working in a maternity position, a pregnant woman who has not managed to receive the coveted certificate of incapacity for work from the antenatal clinic can be mercilessly fired at any day without maintaining her seniority and assigning payments relying on the child.

Potential benefits of maternity leave

Less stringent selection . A maternity vacancy is often a good chance to take a position that would otherwise be inaccessible to a candidate. Temporary work allows the employer to somewhat reduce the criteria for the experience, qualifications and personal qualities of the replacement employee. Often the time during which the employer must find a replacement also works for the applicant.
New experience . While working on maternity leave, an employee acquires relevant skills that will be useful to him in future employment. Even if you take into account that the job is temporary, it may last long enough to get a job entry and the right to indicate additional experience in your resume.
An opportunity to prove yourself . Temporary cooperation often represents a long probationary period, as a result of which management can decide on employment on a more secure basis. If there is a vacancy, it is more convenient and profitable for an employer to hire an already proven specialist than to select third-party people. In practice, most specialists who replace maternity leavers receive permanent work immediately or shortly after the departure of the main employee.
Ordinary labor rights . A maternity rate is, although temporary, official employment with all the required guarantees: annual leave, the right to take sick leave, a salary not lower than the salary of the departing employee, and possibly receiving bonuses. While working in a maternity position, work experience follows the usual procedure.

Should maternity positions be offered during layoffs?

Judicial acts that speak of the need to offer maternity positions during layoffs are, rather, an exception. Their number, in our opinion, does not exceed 5%. Nevertheless, there are such solutions.

As the Moscow Regional Court noted in the Appeal ruling dated March 16, 2015 in case No. 33-5731/2015,

The argument of the appeal about the impossibility of granting the plaintiff the position of head of the educational unit, since it is occupied by an employee who retains her place of work during maternity leave, is found by the judicial panel to be unfounded, since the legislation allows the hiring of an employee dismissed due to staff reduction to the position occupied by a temporarily absent employee , having concluded a fixed-term employment contract with him (Article 59 of the Labor Code of the Russian Federation).

The bulletin of judicial practice of the Omsk Regional Court No. 1 (26), 2006, containing an overview of the Determination of the Judicial Collegium for Civil Cases No. 33-429 (04), states that

offering the employee all available vacancies, as well as offering to perform the work of a temporarily absent employee due to long-term illness, being on a business trip, being on parental leave, etc., is the responsibility of the employer.

Thus, as we see, judicial practice on the issue of the need to offer maternity positions during layoffs is ambiguous. Although the overwhelming number of court decisions indicate that the employer is not obliged to offer such positions to those being laid off. We would like to add that Rostrud supports this position (see Report with guidance on compliance with mandatory requirements, which provides an explanation of what behavior is lawful, as well as an explanation of the new requirements of regulatory legal acts for the second quarter of 2021).

What it is?

There are situations when, when applying for a job, the head of the company informs the candidate that the position is maternity leave.
The main employee went on maternity leave and plans to return to her previous position at the end of this period. Not all citizens know what the maternity rate means. This definition should be understood as working at a temporarily free rate during the entire period while the main employee is at home with a small child.

The period of incapacity for work due to pregnancy and childbirth (BiR), according to Article No. 255 of the Labor Code of Russia, lasts at least 140 days. In the case of complicated births or multiple pregnancies, it will be longer. As a rule, a period of time off from work to care for a child immediately follows the labor leave. It can last 1.5 or 3 years.

In modern labor legislation there is no concept of “maternity pay”. It existed during the USSR period, but today it can also be heard often.

Should I offer part-time wages during layoffs?

Now let's move on to the question of whether it is necessary to offer part-time pay during the reduction. Let us immediately note that if the staffing table contains a part-time rate for a particular position, for example, 0.5 staff units, and this position is clearly vacant (that is, no employee has been hired for it as a full-time employee of the organization) .5 rates or less), then you need to offer this position to the person being laid off. However, the question of whether it is necessary to offer the remainder of the salary for a position for which an employee has already been hired is no longer so clear-cut.

Let's assume that in the staffing table there is one full rate for the position of sales manager. A part-time employee has been hired for this position at 0.5 rates. In this case, will the remaining 0.5 rates be vacant and is it necessary to offer them to the redundant purchasing manager if his qualifications meet the requirements for the position of sales manager?

In our opinion, there is no need to offer these remaining half-time rates. Most court decisions confirm our position. However, in this matter there is no complete uniformity in judicial practice.

What mortgage interest rates exist in Russia?

Mortgages are issued according to rates that have a fundamental difference, which lies not in the value of this indicator, but in completely different key points.

The mortgage rate can be variable (floating), combined or fixed. This rate system was invented by banks to diversify the choice of mortgage product, so that the borrower has the opportunity to choose the most attractive option.

A variable (floating) rate is formed based on the established bank value and one of the market indices (Libor or Eribor or MosPrime), which tend to change daily on the stock exchange. However, according to the terms of the contract, the rate changes once every three months or six months. Thus, the monthly payment is also subject to changes - it can either increase or decrease.

This bet is quite risky due to possible fluctuations in the index, but the interest on it is also the lowest. Of course, with a small index value, such a mortgage program is certainly beneficial. However, when choosing it, you need to clearly understand that a sharp upward jump in the index requires urgent repayment of the loan, otherwise there may be a threat of financial risk (difficulties with further debt repayment) until the end of the mortgage payment period.

This rate is used by clients planning to complete settlements with the bank within 1-2 years.

The combined rate is a new product used by banks. Its essence is to fix the rate for a specific time period, then it takes on a floating form.

For example, with a 25-year mortgage term, the rate remains unchanged for three or five years, and then the borrower remains in an uncertain state relative to the index, and therefore the rate on his loan.

This kind of risk is rewarded with a lower interest rate.

Your loan has been approved!

A fixed rate is a classic version of a mortgage rate. Its value is specified in the loan agreement and remains unchanged throughout the entire period.

The popularity of this bet can be explained by its safety, although higher interest rates are set for it than for other types of bets.

It is of interest to clients who take out a mortgage for a long time and do not plan on early repayment.

Should I offer free parts of bets?

Most courts believe that free parts of the pay for a position for which another employee has already been hired for part of the pay, including part-time, do not need to be offered, since this position is not vacant.

The Leninsky District Court of Cheboksary, in its decision dated December 14, 2015 in case No. 2-3958/2015, when resolving the issue of whether it is necessary to offer the remaining parts of the rates not occupied by part-time workers to the employee subject to dismissal, noted that

The positions of a methodologist in the department of emergency and consultative medical care were not vacant, since 0.25 of the rates for them were occupied by part-time workers.

The decision of the Central District Court of Novokuznetsk, Kemerovo Region dated February 19, 2018 in case No. 2-392/2018 indicated that the court did not agree with the plaintiff’s arguments that she should have been offered a vacant 0.5 rate not occupied by four employees ,

...since the hiring of these persons at 0.5 rates was solely due to the fact that they were hired on an external part-time basis. Accordingly, by virtue of Art. 284 of the Labor Code of the Russian Federation, the working hours of external part-time workers could not exceed 4 hours a day with appropriate remuneration... Positions occupied by external part-time workers cannot be recognized as vacant, since they cannot be considered free.

There are also opposite decisions, which indicate that the remaining parts of the rates should be offered to laid-off employees, since this is not about offering a vacant position, but about the vacant part of the rate.

Let us quote the Appeal ruling of the Novosibirsk Regional Court dated July 13, 2017 in case No. 33-6613/2017:

In support of the arguments of the appeal, it is stated that the decision is illegal and unfounded. The appellant points out that the positions specified in the court decision are not vacant, since... they are occupied by employees. The appellant believes that the court’s conclusion that if for any staffing position half of the rate is occupied by a part-time worker, then the remaining half of the rate is considered vacant, contradicts established judicial practice...
The arguments of the appeal that the court came to the conclusion that when an employee is laid off should be offered positions occupied by part-time workers, are unfounded. The court, satisfying the plaintiff’s demands, came to the conclusion that the employee should not be offered positions occupied by part-time workers, but free rates, namely: 0.5 times the rate of an operator position; 0.5 rate for the position of office cleaner; 0.5 site cleaner rate; 0.5 building duty rate.

An analysis of judicial practice on the issue of the need to offer the remaining part-time positions for positions for which part-time workers are hired allows us to conclude that the number of court decisions in which such a need is confirmed is significantly lower than when there is no need to offer.

At the same time, representatives of Rostrud in consultations also confirm the position that when laying off jobs, it is necessary to offer vacant positions, and not parts of these positions (parts of rates).

Therefore, if, for example, an employee is assigned part-time work, due to which he takes only part of the full rate provided for in the staffing table, then there is no need to offer the rest of the rate to the laid-off employee, since the position is not vacant. At the same time, do not forget that an employee who is assigned part-time work may subsequently ask the employer to transfer him to full-time work. And if the employee subject to layoff were transferred to the remaining part of the rate, then it would become impossible to transfer the “main” employee to full-time work.

How is it different from the usual one?

The maternity rate is different from the regular rate. It is important to compare these two concepts. The difference is quite significant and highlights all the advantages and disadvantages of each employment option. The differences and common features are shown in the table below.

Comparison criterion	Maternity rate	Regular rate
Kind of work	Temporary	Constant
The need to document employment	Necessarily. A fixed-term contract is drawn up	Necessarily. An open-ended employment contract is concluded
How long will an employee be hired?	The contract is terminated immediately after the departure of the main employee. It is impossible to determine the exact duration of work	The employee is hired for an unlimited period. He can be dismissed at his own request, on the initiative of the employer or by agreement of the parties
Protection of labor rights	Minimum	Maximum
Salary amount	Similar to the main bet	Depends on the qualifications of the employee, characteristics and working conditions

Combining positions during layoffs

We have already decided that the majority of courts believe that during a layoff, it is not necessary to offer the employee maternity positions, as well as the remaining part-time positions for positions for which another employee was hired for part of the rate. However, is it possible to draw a similar conclusion for a position for which an employee is not hired under a separate employment contract, but some employee is assigned to perform additional work on a part-time basis?

Most courts believe that in this situation it is necessary to offer the employee such a position, since it meets the criteria of “vacancy”.

The decision of the Protvinsky City Court of the Moscow Region dated April 18, 2018 in case No. 2-27/2018 emphasizes that

positions for which the duties of the defendant are performed on a part-time basis by employees of the defendant occupying another staff position at the main place of work should be considered vacant, and these positions should have been offered to employees released due to staff reduction.

The Novosibirsk Regional Court in the Appeal ruling dated July 13, 2017 in case No. 33-6613/2017 came to the conclusion that

combining professions (positions) does not prevent the conclusion of an employment contract with an employee, the relationship with whom is subject to termination, if it is impossible to transfer him to another job in such a position. Therefore, the employer is obliged to offer the dismissed employee a position for which the combination is registered, in order to comply with the appropriate procedure.

The decision of the Kalininsky District Court of Cheboksary dated November 20, 2017 in case No. 2-3216/2017 states that

Unlike positions for which part-time workers are hired, positions filled through part-time work are vacant and, therefore, must be offered for transfer to released employees.

However, on this issue we encounter ambiguity in the opinions of the judicial authorities and the presence of opposing opinions.

As noted by the Moscow City Court in the Appeal ruling dated December 22, 2017 in case No. 33-51383/2017,

The plaintiff’s arguments that he was unreasonably not offered the available vacant positions of labor protection engineer (0.25 rate), debtor (0.25 rate) were rightfully recognized by the court as untenable, since... they were occupied by combining positions by other persons, about which Additional agreements to the employment contracts were drawn up with the latter, which are an integral part of them. Under such circumstances, the court came to a reasonable conclusion that the part-time positions were not vacant
.

Let us add that even Rostrud consultants cannot come to a consensus. In some recommendations (there are more of them) they believe that such positions are vacant, while in others, on the contrary, they are not. In the first case, they focus on the fact that positions for which the duties are performed on a part-time basis by employees occupying other positions with the employer are vacant. Therefore, they must be offered to those laid off when the organization’s staff or number of employees is reduced. In the second, if a combination of positions is formalized by concluding an additional agreement to the employment contract, then the position is not vacant.

From January 1, 2014, in field 101 “payer status” for the payment of insurance premiums, both legal entities and entrepreneurs should use the value “08”.

Despite the fact that judicial practice is ambiguous on all these issues, in all cases a prevailing position can be identified. When laying off an employee, it is not necessary to offer an employee a position occupied by an employee who is on maternity or child care leave, as well as the remaining part of the salary for a position for which another employee, for example a part-time worker, has been hired on a part-time basis. But a position for which any employee has not been hired under a separate employment contract, but for which another employee is assigned to perform additional work in a part-time manner, is necessary.

Nuances of registering as a temporary employee

A definition of maternity pay that will help you understand what it is can be formulated as follows: a temporary vacancy created after the main employee goes on maternity leave. During this period, in order to fulfill her job duties, the manager has the right to hire a new employee or transfer a person working in the organization from another position.

Hiring an employee on maternity leave includes the following steps:

conclusion of a fixed-term employment agreement;
issuing a job order;
making an entry in the work book;
registration of a personal card.

If a company employee is transferred while maintaining his main position, an additional agreement is concluded. It should indicate that the employee will perform new duties until the end of the maternity leave.

Registration on maternity pay differs from employment in the usual manner in the period during which the employment relationship with the employee will last. It is difficult to determine its duration in advance. A permanent employee can interrupt her vacation at any time: either after a few months or after the birth of her next child.

When concluding an employment contract for a maternity position, it is recommended to follow some rules:

do not indicate a specific end date;
use the wording “until the full-time employee leaves parental leave” or “for a period of temporary absence”;
indicate the position, full name of the maternity leaver.

Can they fire me?

A pregnant woman goes on maternity leave according to the general rules established at the legislative level. The expectant mother cannot be fired on the initiative of management. So, if a maternity leaver returns from vacation, then the woman working in her place vacates her position.

If a certificate confirming pregnancy is presented, the employer is obliged to offer another place. If the expectant mother is not satisfied with it, then she should formalize the refusal in writing.

If a woman working in a maternity position goes on maternity leave before the main employee leaves, then the day of her dismissal will be considered the first day she returns to work. The employment agreement is terminated automatically.

About switching to the main rate from maternity leave

If the manager is satisfied with the results of the work, he transfers the citizen to the main place of work. This is especially true if an employee decides to quit after maternity leave.

For information on transferring an employee from a temporary (maternity) rate to a permanent one, see this story:

The rules for transfer in such circumstances will be as follows:

First, the replacement is fired, and then hired to a new position.
It is required to draw up applications and orders, put down appropriate marks in work books and personal cards.
The transfer automatically becomes permanent if, after the expiration of the agreement, the citizen continues to fulfill his duties.

About maternity leave

The duration of maternity leave is more than 140 days, but not more than 3 years. If an employee replaces a pregnant woman, then he cannot claim payments that are due in connection with the corresponding condition.

The danger is that the absent employee may return at any time. This often happens a year and a half after the vacation was initially issued. There can be three reasons for absence:

leave due to the need to care for a child;
leave before pregnancy, after childbirth (duration 70 days);
maternity leave, before childbirth (also up to 70 days).

To create additional motivation, employers are allowed to increase basic salaries, but such incentive options are not often used. In most cases, the seats remain empty until the employee returns.