Peculiarities of the labor and civil contracts with highly qualified specialists
Labor relations arise between the parties on the basis of an employment contract concluded by them in accordance with the Labor Code.
In this article we will briefly review the main features of the employment contract with a foreign worker – the highly qualified specialist (hereinafter - HQS).
A foreign citizen may enter into an employment relationship as he/she reaches the age of eighteen years, unless otherwise is provided by the law.
The employment contract between the foreign worker and the employer is concluded for an indefinite period, and in the cases provided by the Article 59 of the Labor Code, the fixed-term employment contract is concluded.
If the employer has any restrictions or a ban on foreign labor hire, the employer has no right to conclude the employment contract.
According to the labor legislation an employment contract with a foreign worker should include certain mandatory information in the employment contract (Article 57 of the Labor Code).
Along with other documents (Article 65 of the Labor Code) the HQS should provide the following documents when concluding the employment contract:
- the work permit;
- the voluntary medical insurance (VMI) policy valid in Russia (if the employer does not provide such policy by the agreement with a foreign worker).
When concluding the employment contract with a foreign worker, the employer must provide the grounds confirming the possibility of medical care for the entire duration of the contract, including the details of the VMI policy or paid medical services contract, which the employer must conclude with the medical institution enabled to provide such services.
Please note that the VMI policy or paid medical services contract must cover the entire period of the alleged validity of the work permit.
If the employment contract is required to obtain the work permit, the details of the work permit can be specified in the employment contract later. In this case, the employment contract shall take effect not earlier than the date of receipt of the work permit and the employment contract shall be added with the relevant information as an appendix to the contract.
Within the employment contract, the HQS can be sent on a business trip. In order to provide this specialist unlimited time for business trips in other Russian regions, the employer should include in the contract the information that workers activity is matched with traveling.
Moreover, the foreign worker may be temporarily transferred for a period of up to one month within one calendar year to work for the same employer on position not specified in the work permit.
The employee may be suspended from work for up to one month in the case of the expiry of the work permit or the voluntary health insurance policy. If the documents for the new term can not be provided, the employment contract is terminated after 1 month from the date of expiry of the permits.
The employer has the right to conclude a civil contract with HQS. Terms and the contents of the civil contract are similar to the employment contract, but have a number of significant differences:
- The contractor provides to the customer services specified in advance;
- The parties determine the order and timing of services and the procedure for payment of remuneration for them (note that the condition of HQS payment of at least 167 000 rubles a month must be kept);
- The parties are obliged to compensate each other losses in the event of non-fulfillment of the contract conditions;
- Social guarantees provided by Russian legislation are not applied on HQS.
When dealing with permits the Department on migration issues of Russian Interior Ministry tends to act unjustified requiring certain information contrary to the labor law to be included in employment contracts.
There is no direct indication of the fact that the HQS employment contract must be concluded at the time of the submission. In subparagraph 2, paragraph 6, Article 13.2, 115-FZ among the documents to be submitted with the application for attracting highly qualified specialist (HQS) there is the employment contract (or a civil contract): "for employment contract or civil contract for works (services) engaging HQS, entry into force is caused by the obtaining the work permit by the highly qualified specialist".
However, there is an indirect indication in paragraph 12, Article 13.2, 115-FZ: "The work permit for highly qualified specialist is issued for the duration of the employment contract or a civil contract concluded with the employer or customer of work (services), but not more than for three years ... ".
It is assumed that this indirect indication is considered by the employees of the Department on migration issues of Russian Interior Ministry as the legal basis for the requirement to provide an employment contract at the time of documents submission.
In conclusion, we would like to strongly recommend to all employers planning to hire HQS, to apply for registration of the work permit along with the concluded labor or civil contract.
