Often, the desire to get a prestigious and highly paid job pushes job seekers to embellish their capabilities and achievements, while the dark pages of their past are naturally hidden. And unemployment pushes people to take such actions in order to be competitive in the labor market.
In this regard, of course, the employer’s desire to obtain the most complete information about the employee is understandable. He needs a full-fledged employee who will complete assigned tasks in a timely and high-quality manner, someone who can be entrusted with material assets, safety and people’s lives.
In their desire to obtain as much information as possible about a potential employee, they resort to a preliminary questionnaire of the candidate. At the same time, the questionnaire includes questions about the presence of a criminal record, including expunged information, and information about the state of health. The requirement for such information is contrary to Art. 65 of the Labor Code of the Russian Federation and Art. 23–24 of the Constitution of the Russian Federation.
Art. 65 of the Labor Code of the Russian Federation contains an exhaustive list of documents presented when concluding an employment contract, such as:
- passport or other identity document;
- employment history;
- Pension Fund card;
- military registration documents;
- a diploma or other document confirming education, qualifications or special knowledge;
- in some cases - a certificate of the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution on rehabilitative grounds.
It is prohibited to require from a person applying for a job documents other than those provided for by the Labor Code of the Russian Federation, other federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation (Article 65 of the Labor Code of the Russian Federation).
It is also illegal to check the accuracy of the data provided and the authenticity of documents. In accordance with Art. 88 of the Labor Code of the Russian Federation, it is necessary to obtain his written consent for the transfer of an employee’s personal data. Art. 90 of the Labor Code of the Russian Federation for violation of the rules governing the receipt, processing and protection of employee personal data provides for civil, administrative and criminal liability (see the abbreviated list in the table).
In addition, for violation of labor legislation (since the requirement from a candidate when hiring for documents and information not provided for by labor legislation is such a violation) entails the imposition of an administrative fine on officials in the amount of 1,000 to 5,000 rubles.
For persons carrying out entrepreneurial activities without forming a legal entity - from 1000 to 5000 rubles or administrative suspension of activities for up to 90 days; for legal entities - from 30,000 to 50,000 rubles or administrative suspension of activities for up to 90 days (clause 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).
Ban on working with a criminal record
Currently, the Labor Code of the Russian Federation and other legislative acts prohibit citizens with a criminal record from working in certain areas of activity. Employers are required to comply with this prohibition and not employ applicants in violation of the law.
Cheat sheet on the article from the editors of BUKH.1S for those who do not have time
1. The Labor Code of the Russian Federation and other legislative acts establish a ban on work in certain areas of activity for citizens with a criminal record.
2. If the law contains a prohibition for those with a criminal record to work in a certain industry or position, then the employer, when accepting such work, must require a certificate of no criminal record from applicants.
3. If there are no prohibitions in the law for certain jobs for those with a criminal record, then when hiring for such positions, employers cannot require a certificate of no criminal record from applicants. This is discrimination.
4. If a citizen is hired, and then it is discovered that the certificate he provided is fake, then the employment contract will be terminated.
5. If a criminal case has been opened against an employee, and his work is incompatible with a criminal record and prosecution under the Criminal Code of the Russian Federation, then he must be suspended for the entire period of the criminal proceedings until it is terminated or until the court verdict comes into force.
6. A criminal record check when applying for a job is the responsibility of the employer. For failure to fulfill this obligation and illegal employment of convicted persons, the employer may be held accountable.
Persons who have or have had a criminal record do not have the right to engage in:
- pedagogical activities (paragraph 3.4, part 2, article 331 of the Labor Code of the Russian Federation);
- activities in the field of education, development and organization of recreation for minors (Article 351.1 of the Labor Code of the Russian Federation).
Persons who have an outstanding or unexpunged conviction for committing an intentional crime are not entitled to:
- carry out work directly related to transport safety (clause 1, clause 1, article 10 of the Federal Law of 02/09/2007 No. 16-FZ);
- hold the position of specialist in aviation personnel and aviation security services (clauses 3, 4 of Article 52 of the Air Code of the Russian Federation);
- be a civil servant (clause 2, clause 1, article 16 of the Federal Law of July 27, 2004 No. 79-FZ);
- be called up for military service or perform military service under a contract (Article 23, Article 34 of the Federal Law of March 28, 1998 No. 53-FZ).
Persons who have an unexpunged or outstanding conviction for crimes in the economic sphere or crimes against state power cannot:
- work in organizations that are professional participants in the securities market (clause 2 of article 10.1 of the Federal Law of April 22, 1996 No. 39-FZ).
Persons with a criminal record (including expunged and expunged) cannot be employed:
- to the prosecutor's office (clause 2 of article 40.1 of the Federal Law of January 17, 1992 No. 2202-1);
- to the bodies of the FSB (Article 16 of the Federal Law of April 3, 1995 No. 40-FZ);
- to the internal affairs bodies (clause 2, clause 1, article 14 of the Federal Law of November 30, 2011 No. 342-FZ).
- to the courts (clause 2, clause 1, article 4 of the Federal Law of June 26, 1992 No. 3132-1).
Persons who have an unexpunged or outstanding conviction for crimes in the economic sphere cannot be:
- chief accountants of joint-stock companies (clause 3, clause 4, article 7 of the Federal Law of December 6, 2011 No. 402-FZ).
This is not the entire list of jobs and professions that are inaccessible to violators of criminal law. But the legal provisions listed above oblige employers to check applicants for criminal records. In this case, the verification of applicants must be carried out in compliance with certain rules.
Situations when a criminal record is expunged
Info
The current provisions of the Criminal Code indicate the time frame for expungement of a criminal record. The duration is influenced by the type of violation committed.
The following is automatically extinguished:
- within one year, if the punishment does not involve imprisonment;
- for three years, when the person was sentenced to three years in prison;
- 8 years, if the punishment is imprisonment for a term of up to ten years, and the citizen has committed serious acts;
- when the term of serving a sentence exceeds 10 years, the criminal record is removed after a similar period.
If suspended sentences are applied to a person, then the period of probation will be the time after which the criminal record will be expunged. The countdown of this period must begin from the moment when the punishment was served or completed.
Checking applicants for criminal records
Among the mandatory documents that a citizen presents to the employer when applying for a job is a certificate of the presence (absence) of a criminal record and the fact of criminal prosecution (Article 65 of the Labor Code of the Russian Federation). The form and procedure for issuing such a certificate are approved by Order of the Ministry of Internal Affairs of Russia dated November 7, 2011 No. 1121.
If the Labor Code of the Russian Federation or other law contains a prohibition for those with a criminal record to work in a certain industry or position, a certificate is required. In other cases, the employer does not have the right to request such information from the applicant - this will be considered discrimination.
If, when checking the certificate, the employer concludes that the citizen cannot be allowed to work in a “prohibited” position, he will be denied an employment contract. Also, refusal to hire is possible if a criminal record certificate is not provided in violation of Art. 65 Labor Code of the Russian Federation.
At the request of a person who is refused to conclude an employment contract, the employer is obliged to provide the reason for the refusal in writing. The employer has 7 days to submit a written refusal (Article 64 of the Labor Code of the Russian Federation).
If the employer subsequently discovers that the certificate of criminal record submitted by the employee is forged, the employment contract with such employee will be terminated under clause 11, part 1, art. 81 Labor Code of the Russian Federation. The reason is that the employee submitted false documents when concluding an employment contract.
If the employer hired the employee without a certificate and it turned out that he has or had a criminal record that prevents further work, the employee will be fired under clause 11, part 1, art. 77 Labor Code of the Russian Federation. The reason is a violation of the rules for concluding an employment contract, excluding the possibility of continuing work.
Note! Based on Art. 84 of the Labor Code of the Russian Federation, the employer is obliged to offer the employee another job that is not subject to the ban on employment of convicted citizens. In addition, the employee in this case is paid severance pay in the amount of average monthly earnings.
How to find out about an employee's criminal record
How to find out about a person's criminal record by last name? The easiest and absolutely legal way to find out whether an employee has had problems with the law in the past is to ask him to bring the relevant certificate. This is one of the answers to the question of how to check a person’s criminal record. Its registration is absolutely free and all you need is a passport. After filling out the application form, the necessary data will be provided within 30 working days. Moreover, online verification is available through the government services website. To do this, you only need to have an authorized registration on the site.
If an employer wants to receive information about all employees, he is obliged to obtain their consent to represent their interests in this matter and request information immediately in bulk. This is acceptable and will take the same amount of time as receiving one certificate.
Criminal case while working
An employee may be subject to criminal prosecution by working in a position that is incompatible with a criminal record and prosecution under the Criminal Code of the Russian Federation.
Upon receipt of information from law enforcement agencies that an employee will be subject to criminal prosecution, the employer is obliged to suspend the employee for the entire period of the criminal proceedings until it is terminated or until the court verdict comes into force. During the period of suspension from work (preclusion from work), the employee’s salary is not accrued (Article 76 of the Labor Code of the Russian Federation).
Removal from work is carried out by order of the head of the organization, drawn up in any form. The order should indicate the basis for removal from work, for example, the name and details of the document received from law enforcement agencies.
The order must also contain the period of suspension (for the period of criminal proceedings until its termination or until the court verdict comes into force).
To avoid labor disputes, the employee must be familiarized with such an order against signature. If, at the end of the criminal prosecution, the employee is convicted, then on the day the verdict enters into legal force, the employment contract is terminated. The grounds for termination should be specified in clause 4, part 1, art. 83 of the Labor Code of the Russian Federation - due to circumstances beyond the control of the parties due to the sentencing of an employee to punishment that precludes the continuation of previous work.
What restrictions does a criminal record impose?
First of all, it is necessary to understand what the current legislation understands by this term. Thus, according to Article 86 of the Criminal Code of the Russian Federation, this is a special legal status of a citizen against whom the court has pronounced a guilty verdict for a crime he has committed.
This is the final stage of criminal liability, which is associated with the imposition of punishment or other measures of a criminal legal nature. The status of a criminal record begins from the day the court verdict enters into legal force and continues until it is expunged or removed early in the manner prescribed by law.
Problems with the law leave a negative imprint on a person’s entire social life, but there are also consequences that are imperatively established by law. Among them are prohibitions on:
- election to governing bodies;
- performing state civil service;
- obtaining a weapons license;
- employment in some structures (educational, law enforcement);
- enlistment.
The list is impressive, and it becomes clear that the question of how to check a person’s criminal record legally is of interest to many: employers, officials, military structures.
Responsibility for illegal employment of convicted persons
A criminal background check when applying for a job is the responsibility of the employer. For failure to fulfill this obligation and illegal employment of convicted persons, the employer may be held accountable.
Judicial practice confirms the obligation of employers to check applicants for criminal records. For example, the Arbitration Court of the West Siberian District, in its resolution dated February 22, 2018 No. F04-210/2018, held the employer responsible for allowing persons to work in the field of transport security whose criminal records he did not have at the time of concluding the employment contract.
The individual entrepreneur was fined 30,000 rubles under Part 1 of Art. 11.15.1 of the Code of Administrative Offenses of the Russian Federation for admission to the position of an employee responsible for compliance with transport safety who has an outstanding criminal record. Such employment is expressly prohibited by clause 1, part 1, art. 10 of the Federal Law of 02/09/2007 No. 16-FZ “On Transport Security”. The individual entrepreneur, when hiring the citizen, did not know about his criminal record.
According to the court, the employer must have reliable information that the person hired does not have an outstanding conviction for committing an intentional crime. To do this, he must request from the employee a certificate of no criminal record (paragraph 7, part 1, article 65 of the Labor Code of the Russian Federation). The absence of such information by the employer does not relieve him of liability provided for by law.
Thus, an employer can and should require a certificate of no criminal record from a potential employee in cases where it is impossible to allow a person with a criminal record to work.
Bailiffs website
Using the bailiffs website you can find out the following information:
- about the debts of an individual, organization, individual entrepreneur;
- on open enforcement proceedings against an individual, organization, individual entrepreneur;
- about persons who are wanted on suspicion of committing a crime.
Despite the fact that with the help of this service you can find out whether a person has problems with the law, only by indirect signs, the capabilities of this database are very extensive. It includes citizens who are hiding from paying alimony and fines, serving in the army, and other violators and criminals.
How to check online
But what if an employee works, and his superiors have suspicions that he is in trouble with the law? He doesn’t want to bring a certificate voluntarily. How can I find out about a person’s criminal record via the Internet or in another way without his consent? There is no legal way. Only the state security service and internal affairs bodies have the right to receive such information. The security services of even government organizations and institutions do not have such powers. Moreover, an attempt to secretly obtain such information from the database of the Ministry of Internal Affairs is an administrative offense, liability for which is provided for in Part 2 of Article 13.11 of the Code of Administrative Offenses of the Russian Federation. The fine will be assigned in the amount of:
- for civilians - from 3,000 to 5,000 rubles;
- for officials - from 10,000 to 20,000 rubles;
- for legal entities - from 15,000 to 70,000 rubles.
So don't take risks. Moreover, there are legal ways to find out about a person’s criminal record by last name online. Courts that issue judgments publish them on their official websites and in various court registers. Using the search, it is easy to find out about all cases of a person’s participation in court hearings over the past 3-5 years. Since such information is posted in open sources, its receipt is not a violation. In addition, it is possible to check the names of employees or candidates for vacancies on the website of the Ministry of Internal Affairs of the Russian Federation in the “Attention, wanted!” section. To do this, just fill out the form and find out if the person is wanted.
How to check on the court website
To do this, you will need to find the official website of the court of general jurisdiction at the place of registration of the potential employee. After this, follow the instructions:
- Find and go to the “Judicial Proceedings” section.
- In the search column, enter the person's last name.
- Click on the "Find" button.
Some sites will require more details. This is, for example, what the search system looks like on the official portal of the courts of general jurisdiction in Moscow.
If the organization requires a certificate of no criminal record
You can obtain such paper yourself in several ways. The simplest one, which we have already mentioned, is through the government services website. In your personal account, make an application, fill out the application and select the MFC, where you will then receive the original certificate.
Another option is to contact the Ministry of Internal Affairs, the Internal Affairs Directorate or the Central Internal Affairs Directorate. They are obligated to work with such requests from civilians by Order of the Ministry of Internal Affairs No. 965. The third method is directly to the MFC. In the last two cases, for registration you will need to provide:
- passport and its copy;
- application for a certificate.
Results
A certificate of the presence/absence of a criminal record may be required when applying for a job in areas where special requirements are placed on the moral and psychological qualities of workers. Having a criminal record in the past is seen as a negative aspect. All cases are established by law.
The certificate may also be additionally requested in other cases when the employer makes a decision on hiring.
In such cases, it is impossible to refuse an applicant solely on the basis of failure to provide a certificate or having an expunged criminal record. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
