Unfortunately, today a young working woman increasingly faces a choice: a child or a career. But even deciding to replenish the family, she is not immune from the fact that she will not face the troubles of the legal, or rather, extra-legal nature at work.
After all, it’s no secret that many managers are interested in a continuous work process, and plans for the birth of a child in it are little fit.
On basic questions concerning the labor rights of a pregnant woman, we were asked to answer Oksana Rychagova, associate professor of the Chair of Civil Law and the process of the Faculty of Law of SibAAA.
If the employer asks the woman about the family plans during the job interview (marriage, birth of children), then how should we correctly answer this question?
Legally, firstly, it is the denial in employment for motives related to pregnancy, rather than questions at the interview; Secondly, people have the right to not answer such questions, as they concern his personal life and are not connected with business qualities. As for the ethical side, lies about the personal life at the interview, there are no legal consequences for the employee – everyone makes his own moral choice. In addition, what guarantees does the employer want? Life is unpredictable, the maximum that a worker can promise is to reconsider contraceptive issues.
How does the annual basic paid vacation combine with maternity leave?
A pregnant woman is required to provide an annual paid leave to the pregnant woman either before or immediately after maternity leave. And it does not matter – whether the woman has worked out an experience that gives the right to an annual leave, or not. It is up to the pregnant woman to decide whether this leave is to be used in advance and whether to add it to the beginning or end of the maternity leave. The employer must submit the following documents: 1) an application indicating the time of granting the next leave (before maternity leave or after it); 2) a certificate of incapacity for work, which indicates the period of maternity leave.
Is it possible for a woman to receive payment of the full amount of the benefit if the salary was paid “in an envelope”?
In this case it is practically impossible to prove its size. Accordingly, so-called “white” wages will be used to calculate the maternity allowance. Generally, having agreed to hide their wages from taxation, the employee must be aware of the possibility of unprofitable consequences.
Is it possible to “relax” the mode of work for a pregnant woman? Does it have the right to an incomplete or shortened working day?
First, pregnant women are reduced norms of development, service standards, or these women are transferred to other jobs, excluding the impact of unfavorable production factors, while maintaining the average earnings from previous work. Secondly, during the passage of the compulsory medical check-up in medical institutions, the average earnings at the place of work are kept for pregnant women.
Thirdly, an absolute prohibition is set to direct pregnant women on official business trips, to involve them in overtime work, work at night, on weekends and non-working holidays. This means that even if the pregnant worker herself wants, for example, to work on a day off, the employer does not have the right to allow it.
But as regards the work sentences from work because of poor health, it is only with the consent of the employer and without saving the earnings for the unworked hours. If the employer agrees, the pregnant woman will be able to work at home. As for the reduced working time – for pregnant women it is not provided. But for part-time working, a pregnant woman has the right. She must submit an application to the employer stating the number of working hours per day and the number of working days a week. I particularly recommend (although this is not mentioned in the current legislation) in the application to specify a specific period for which the woman asks to install her part-time work. However, I will remind you that wages will be charged only for actually worked time.
What if the term of the employment contract expires during the pregnancy of the worker?
The employer is obliged by her written application and by providing a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy. Such a worker must, at the request of the employer, but not more than once every three months, provide a medical certificate confirming the state of pregnancy. If the pregnancy is terminated (for example, a miscarriage occurred), the employer has the right to terminate the employment contract within a week from the day when he learned or should have learned about the fact of the termination of pregnancy.
Of these general rules, there is an exception: the dismissal of a pregnant woman is allowed in connection with the expiration of the term of the employment contract, if this contract was concluded for the duration of the performance of the duties of the absent employee (for example, on temporary leave for temporary incapacity for work). But before the dismissal, the employer must offer her a transfer for a vacant position – both corresponding to the qualification of the woman, and the vacant lower-level position. Mandatory condition: this work should not be contraindicated to a woman.
What is the probationary period for a pregnant woman?
It is absolutely forbidden to establish a test for a pregnant woman. If it is still installed, it is not valid initially.
How to act in a situation where the employer does not want to comply with the law and wants a pregnant woman to be fired?
Sometimes, the employer is so eager to get rid of pregnant workers, which initiates the reorganization procedure, while naively believes that it will liquidate the enterprise and dismiss pregnant women (by the way, women with young children) according to cl. 1 part 1 of Art. 81 of the Labor Code of the Russian Federation. In fact, as a rule, only the name of the organization changes. Such dismissal is illegal with all the consequences that are negative for the employer (up to criminal liability).
Council worker: wait for the specific actions of the employer, for example, the publication of the dismissal order. Take this document and file a complaint with the State Labor Inspectorate on the NSO.
In my private practice, I first explain to the employer what kind of norm he violated and what it entails. Often this is enough to voluntarily restore the employee’s rights.
If the employer forces the pregnant woman to resign, for example, at her own will, then how should she behave?
To store evidence of coercion (for example, record a threat to the employer on the recorder) and apply for protection to the State Labor Inspectorate in the NSO. Psychologically, an employee is usually weaker than an employer, but legally it is nevertheless well protected. Do not be afraid, you can find any employer. Do your job duties in good faith and take full advantage of your labor rights.