Self-defense of labor rights by employees. Forms, methods

Every person is guaranteed protection of labor rights. This is how the constitutional right to work is realized. For one person, this requires active action; for another, the guarantees established by law are sufficient.

The Labor Code is mainly filled with regulations containing the conditions and requirements necessary for labor protection and protection of employee rights. Therefore, protecting the labor rights of the parties to a labor agreement is the primary responsibility of the state, which is carried out in various ways.

What is self-defense of labor rights by employees

The right to self-defense is enshrined in Article 352 of the Labor Code of the Russian Federation. It sets out all possible methods of protecting labor rights. In particular, these are:

Self-protection of rights by employees themselves.
Protection of workers' rights by trade unions.
Protection of rights at the state level.
Defending your rights in a judicial body.

Obviously, self-defense of workers' rights is the simplest option. This concept first appeared in the Labor Code. However, it still does not have a precise definition of self-defense. The term is expanded upon by some authors. Self-defense of labor rights by employees is the active actions of employees aimed at protecting labor and health. In this case, appeals to higher authorities are not expected: trade unions, courts, government agencies. Accordingly, only the employee himself has the right to self-defense. The employee is solely concerned with protecting his individual rights. The measures under consideration help stop various violations.

ATTENTION! Self-defense is carried out within the framework established by law.

Labour Inspectorate

The State Labor Inspectorate is a government body that monitors compliance with labor legislation. Labor inspection departments operate in all regions and are available to all citizens who need the protection of labor rights.

The labor inspectorate works on complaints from citizens. The functions of the inspectorate include monitoring the implementation of labor legislation. The inspectorate can implement the protection of labor rights by:

carrying out inspections
performing examinations
issuing orders
drawing up protocols on administrative offenses
imposing fines

The labor inspectorate can only control those employment relationships that are ongoing. Disputes regarding dismissal or violations in former labor relations are not within its competence.

The most effective way is to contact the labor inspectorate with complaints about the actions of individual entrepreneurs. The main thing is that the employment contract is drawn up properly.

Main characteristics of self-defense by workers

Self-defense of labor rights by employees is characterized by the following characteristics:

The employee exercises the right on an individual basis. At the same time, he does not apply to government agencies, courts and other competent structures.
There are many forms of labor rights protection. This could be a strike, protest events, etc. A distinctive feature of self-defense is the passivity of the employee. That is, inaction is used to eliminate violations. As part of self-defense, the employee refuses to comply with the employer's demands. The period of inactivity is not limited. The self-defense period ends when the violation is eliminated.
As part of self-defense, an employee cannot force the employer or other persons to eliminate the offense. There are other tools for this.
Self-defense is a method used exclusively by workers. It is not used by employers.

IMPORTANT! For some workers, waiving demands in the name of self-protection is very attractive. However, this tool cannot be used without reason. It is relevant only if the employee’s rights are really grossly violated. If there is nothing of the kind, the actions, or rather the inaction of employees, is completely unlawful.

Required to undergo a polygraph test

❌ Put the employee in a situation where he cannot but agree to undergo a lie detector test. If it turns out that he is stealing or leaking information to competitors, deduct the shortfall from his salary, fire him under the article, or hint to write a statement on his own.

✅ It is believed that a polygraph based on bodily reactions can show whether a person is lying or not.

Polygraph testing of employees is not prohibited. Drawing conclusions and taking measures, in principle, too. But there are two legal requirements here.

The employee must consent to the inspection . A polygraph test is essentially a medical examination. It can only be carried out with the consent of the person. This is stated in Art. 21 of the Constitution of the Russian Federation.

Consent must be voluntary. That is, the employee signs it without pressure. It is also impossible to cheat and offer to sign consent for “psychological testing”. The employee must clearly understand that he is agreeing to a device with wires connected to the body and specific questions. An employee can refuse the test at any time, even in the middle of the survey. You cannot fire, fine or deduct from your salary the costs of visiting a polygraph examiner.

If an employee proves in court that he agreed to a polygraph under threat of dismissal or bad recommendations for HR, the employer will pay for moral damages. The chance of proving coercion is high. The courts interpret any doubts in favor of the employee.

A polygraph test should not replace an explanatory note, an audit, a damage report, a memorandum and a court verdict . The results of a polygraph test do not legally prove that the employee violated the law. The Labor Code does not know such a procedure. If an employee challenges dismissal or deduction from wages, it will not be possible to refer to a polygraph. In legal parlance, this is called inadmissible evidence.

To make deductions from wages, you must follow the procedure for bringing to financial liability from Chapter 39 of the Labor Code of the Russian Federation. This is the creation of a commission, calculation of damages, an explanation from the employee and an order to withhold. Full step-by-step instructions are in our article.

To fire someone for theft, they turn to the police and wait for a court verdict. This is what it says in Part 6 of Art. 81 Labor Code of the Russian Federation.

For leaking trade secrets, absenteeism and drunkenness, one is fired after filing a disciplinary sanction under Art. 193 Labor Code of the Russian Federation. Instructions here.

In what cases is self-defense legal?

Self-defense can be used in the following cases:

Assigning an employee tasks that are not provided for in the employment agreement.
In connection with the employer's instructions, there is a threat to the life and health of the employee.
The employer refuses to provide protective equipment if it is required to perform the job.
Failure to pay wages on time. The delay must exceed 15 days.
Wrongful transfer to another position.
Unlawful demands of the employer that do not comply with the employment agreement with the employee.
Sending on a business trip without the employee’s written consent (if provided).
Illegally engaging an employee to work overtime, work on weekends and holidays.
The employer asks the employee to leave his vacation early.
The manager unlawfully requests documents and information.

Self-defense is also used in some other cases.

IMPORTANT! The TD does not indicate a list of situations in which the instrument in question can be used. Therefore, the employee himself must make the decision to protect himself. However, he must keep in mind that the employer is unlikely to be happy with the employee's decision. You need to be prepared for legal proceedings and formulate arguments in support of the validity of self-defense.

Methods of self-defense should not contradict the following characteristics:

Compliance with legislation.
Lack of contact with government or other competent structures.

If the employee’s actions do not correspond to these signs, self-defense is not considered lawful.

Complaint is not grounds for dismissal

Continuing the topic of the peculiarities of labor disputes related to the prosecution of employees for actions undesirable to the employer, let us consider a case in which the court declared illegal dismissal in retaliation for an employee’s appeal of violations of the labor rights of colleagues.

D. filed a claim for wrongful dismissal in federal court. Defendant is a large corporation that owns more than 1,500 rental buildings. Plaintiff was a building manager in San Diego, California. In October 2006, she sent a complaint to the company's management about violations in the remuneration of employees subordinate to her and the establishment of a working time schedule for them that did not allow them to take even a lunch break. During recertification in 2007, D.’s work was considered unsatisfactory and was subsequently fired.

During the trial with the participation of a jury, it was determined that the plaintiff’s claims were justified. According to the court decision, the defendant company paid D. compensation totaling over $4.6 million, including penalties of $3.5 million. The court proceeded from the fact that D. acted in the public interest, namely, defended labor rights company employees.

The jury's verdict emphasized that the unlawful dismissal of the plaintiff was malicious prosecution for her legitimate statements addressed to the company's management, intentional and committed using knowingly false information about D.'s allegedly dishonest attitude towards her duties.

Broad interpretation by the US Supreme Court

In judicial practice, the question often arises: what to do when an employer, in retaliation, fires not the employee himself, but one of his relatives (third party retaliation). In this regard, the case “Thompson v. North American Stainless, LP”, on which the US Supreme Court made a decision on January 24, 2011, which is essentially a regulatory legal act.

E. sued the company for wrongful termination, alleging that he was fired in retaliation because his fiancée, who worked at the same company, filed a complaint with the Employment Equity Agency of sexual harassment by an official under whose supervision she is situated.

The Federal District Court dismissed the claim, citing Sec. VII of the Civil Rights Law, according to which it is illegal to dismiss an employee in retaliation for his lawful actions: a complaint, petition, filing a claim, statements objectionable to the employer, critical remarks, etc. The court proceeded from the fact that this provision of the law does not apply to the plaintiff, since no measures of discrimination were applied to him. The appeals court upheld the first instance decision, and the case went to the US Supreme Court, which had to answer the question of whether the victim, which is E., has the right to challenge the legality of his dismissal under the anti-discrimination provisions of the ADA. civil rights."

The US Supreme Court recognized the plaintiff's complaint against the decision of the appellate court as justified, since the claim was rejected solely on formal grounds. He overturned the previous decisions and sent the case for a new trial on the merits at the first instance, bearing in mind the need to establish the actual reason for E.’s dismissal: the desire to take revenge on his fiancee or other grounds.

Thus, the US Supreme Court gave a broad interpretation of the law, while the trial and appellate courts proceeded from a literal interpretation of its provisions. I believe that the Court in this case went beyond the law, and its decision has the force of a normative legal act for US federal courts.

Dismissal “in retaliation for the truth”

Examples of illegal dismissal of an employee “in retaliation for the truth” in both the private and public sectors are the following cases.

An employee of a private company said he supported the employee's complaint that she was subjected to racial discrimination and sexual harassment by a superior official, and was willing to testify about it. He was soon fired. In accordance with the jury's verdict, the company was obliged to pay $3 million in monetary compensation to the wrongfully fired employee, including punitive damages and attorney's fees.

In another example, N., an inspection employee of a national passenger transport corporation, provided information about a violation by one of the contractors of the terms of an agreement concluded between him and the corporation to test concrete, which should be used in construction work on some sections of the tunnels. These documents indicated that the tests were carried out improperly and the data provided by the counterparty could not be considered reliable, therefore their use was a violation of the safety requirements for railway structures established by the Federal Railroad Safety Act of 1970 G.

A few months later, during the next certification, N.’s work was recognized as unsatisfactory for the first time in his career. Some time later, N. was notified of the abolition of his position. Since he was unable to get another job in the company, N. was fired by decision of the administration.

Then N. appealed to the Federal Agency for Occupational Safety and Health (OSHA) with a statement of violation of his labor rights, in which he indicated that he was fired in retaliation for providing information that, according to his job responsibilities, he should have brought to the attention of interested organizations.

The Railroad Safety Act contains a section that sets out regulations aimed at protecting the labor rights of workers (“Employee Protections”). The law directly provides, firstly, the right of employees to send applications, complaints and information about violations of safety requirements not only to the employer’s administration, but also to regulatory authorities; secondly, the employer is prohibited from persecuting the employee for this - in particular, dismissing, suspending or demoting him.

If such facts are identified, the US Department of Labor has the right to send an order to the employer to reinstate the employee at work and compensate for the losses caused to him. The Ministry of Labor has delegated this right to the Occupational Safety and Health Agency. According to this law, if the employer voluntarily fails to comply with the order, the Agency sends the case to the court to make a decision on forced execution of the order.

As a result of the investigation, the regional office of the Agency determined that N.’s dismissal was illegal and issued an order to the corporation to reinstate him and compensate for the losses caused. As a result, N. was reinstated at work and received compensation of more than 890 thousand dollars. In addition, the corporation undertook to remove from N.’s personal file all documents unreasonably compromising him and not to pursue him in the future.

Protection of labor rights of maritime transport workers

An example of the protection of labor rights of maritime transport workers in cases of illegal dismissal for testifying about employer violations is the following case. On October 20, 2021, a shipping company-owned barge carrying oil from the Port of Melville, New York, exploded near the Port of Aransas, Texas. As a result, two people died and many were injured. One of the sailors working for this company, a witness to the disaster, who cooperated with the investigation conducted by the US Coast Guard (USCG), testified about a number of violations of the safety rules for the transportation of explosive cargo by the company. Three months later, the sailor was fired without explanation. After some time, he sent a request to the company about whether he could return to work again, but there was no response. Then he filed a complaint with the Federal Agency for Occupational Safety and Health.

The audit confirmed the facts stated in the application. The applicant's actions were found to comply with the provisions of the Federal Seaman's Protection Act of 1984, according to which maritime transport companies - employers are prohibited from retaliating against their employees for actions to ensure compliance with cargo transportation safety regulations, including the provision of information to the Service Coast Guard and other federal agencies.

The transport company was sent an order to reinstate the illegally dismissed sailor and to pay him monetary compensation, including payment for forced absence, compensation for moral damages and a fine, since the dismissal of the sailor was intentional, taken in retaliation for his lawful actions. The company also pledged not to harass the sailor in the future and not to violate the labor rights of its employees.

Protection of labor rights of bank employees

Let us dwell on the protection of the labor rights of employees in the banking sector.

The manager of one of the largest US banks presented a report to his management about violations of banking rules. In retaliation for this, he was fired.

The manager then filed a complaint with the Occupational Safety and Health Agency. As a result of an investigation conducted by the Agency's regional office, it was determined that the manager's actions were lawful. The Public Company Accounting Reform and Investor Protection Act of 2002, which applies to the banking system, contains provisions to protect workers' rights.

Under the SOX Act, employers, including banks, are prohibited from firing, demoting, suspending, or otherwise retaliating against employees for reporting violations of the law.

Guided by this law, the Agency sent an order to the bank to reinstate the illegally dismissed manager and to pay him compensation totaling $5.4 million. In addition, the bank was obliged to remove from the manager’s personal file all documents that were unreasonably compromising him.

Determining the amount of monetary compensation

For Russian lawyers and jurists, in my opinion, the case “Perez v. Progenics Pharmaceuticals, Inc" - from the point of view of both the procedure for considering a dispute in connection with violation of the SOX Act, and determining the amount of monetary compensation recovered from the employer in favor of the plaintiff.

R. worked as a manager for a private environmental company developing and commercializing innovative targeted drugs and artificial intelligence to detect, track and combat cancer. He filed a complaint with the Occupational Safety and Health Agency about illegal dismissal. The document indicated that R. was fired in retaliation for providing the clinic’s management with information that deliberately false data on the results of clinical trials were being sent to the company’s shareholders.

Under the SOX Act, if an employee's grievance is not resolved by the Agency within 180 days, the employee has the right to take legal action.

The court, with the participation of a jury, decided to satisfy the claim and recover from the company in favor of R. a monetary compensation of $ 5 million. At the same time, the court proceeded from the fact that the restoration of the plaintiff to his previous job hardly makes sense due to the extremely hostile and hostile attitude towards him from the management. R. did not work for a long time and could not find equivalent work, experienced financial difficulties and suffered moral harm. In addition, by the time the decision was made in the case, R. had turned 58 years old, and getting another, similar job, given his high qualifications, seemed unlikely.

Taking this into account, along with payment for forced absence and infliction of moral damage, the amount of compensation included payment for future expenses (front pay) in the amount of $2.7 million. This means. that an advance payment was collected from the company in favor of R. 8 years before he reached retirement age (66 years). The court determined this amount based on the salary that R. would have received for this period, occupying a position comparable to the previous one.

Practice of protecting the rights of workers who provide information about facts of non-compliance and non-compliance with environmental legislation

In conditions of rapid growth of social production and consumption, one of the pressing problems is the protection of the natural environment from the negative impact of human activity. Environmental law is one of the rapidly developing branches of legislation in industrialized countries. It is customary to include norms of constitutional, administrative, civil, criminal and labor law in the system of national environmental law.

In this regard, the practice of protecting the rights of workers who provide information about facts of non-compliance and non-compliance with environmental legislation is of interest. Lawful actions of employees include sending and providing management, as well as environmental and law enforcement agencies with information, statements, complaints, memoranda, etc. about facts indicating violations (possibility of violations) of environmental requirements, as well as giving evidence during inspections of their compliance and court consideration of cases of violations of environmental legislation.

Environmental legislative acts (on the purity of water, the suitability of drinking water, the purity of atmospheric air, the control of toxic substances, the prevention of environmental pollution, etc.) contain provisions according to which all previously considered actions of employees of the private and public sector aimed at for environmental protection.

Let's look at one example of judicial practice on this issue.

G. worked at a water treatment plant - one of the divisions of a government organization - as the head of a laboratory for monitoring wastewater pollution. Such waters undergo primary and secondary purification. Primary treatment is the responsibility of the enterprises themselves; secondary treatment is carried out, as a rule, by special water treatment plants (stations).

G. presented a memo to his immediate superior, Chief Engineer A., in which he made a number of critical comments about the current sampling practice, considering it ineffective and not ensuring the reliability of the data obtained as a result of the analysis on the level of water pollution. A. ignored comments and suggestions to improve the cleaning control system. Then G. turned to the director of the water treatment plant, and then to the management of the corporation.

Having failed to achieve a positive decision and acceptance of his proposals, he continued to write reports, and also announced his intention to address his critical comments to the Federal Environmental Protection Agency (EPA).

During the reorganization of the company, one position of the head of the division was abolished, and G. was dismissed due to staff reduction.

Disagreeing with this decision, G. appealed it to the US Department of Labor, indicating that, in his opinion, he was fired in retaliation for criticizing shortcomings in the corporation's work. Having considered the complaint, the Ministry declared the decision to dismiss G. illegal.

The state corporation, in turn, went to court with a demand to overturn the decision of the Ministry of Labor. The statement of claim stated that the reorganization and the resulting reduction in staff were carried out for financial reasons, and the fact that out of the four heads of departments it was G. who was fired was explained by his insufficient qualifications.

Having considered all the circumstances of the case, the court declared the dismissal illegal and made a decision to reinstate G. at work and to pay him monetary compensation for the period of forced absence. The decision stated that, in assessing the arguments of the parties, the court proceeded from the fact that if the corporation had grounds for dismissing G. for one reason or another, at least one of them was retaliation against G. for criticism and complaints.

It is important to emphasize here that the court did not and should not have considered the question of the validity of G.’s statement about shortcomings in the work to control the level of wastewater pollution and his proposals for its improvement. The court proceeded from the fact that the employer violated the Clean Water Act of 1972, which established the right of employees to appeal the actions of the employer that led or may lead to a violation of the current legislation. This means that G.’s actions themselves were lawful and protected by law.

In this case, the likelihood of an environmental violation was that, due to an incorrect assessment of the level of wastewater pollution, its quality would not meet the standards and requirements provided for by mandatory standards that are part of environmental legislation.

Basic forms of employee self-defense

As mentioned, the primary and only form of self-defense is inaction in the workplace. However, the forms of inaction can take many different forms. Let's look at the most common ones:

Refusal to receive a work book due to the fact that an incorrect entry was made in it.
Refusal to return to work after 2 weeks from the date of filing a resignation letter of one's own free will.
Refusal to carry out instructions from the manager if they pose a threat to health or are not provided for in the employment agreement.
Refusal of overtime work and business trips.
Refusal to work without protective equipment.

It is assumed that the employee will refuse precisely those instructions that are not lawful. If the employer obliges the employee to perform work, you should contact the labor dispute commission. However, in this case, self-defense ceases to be self-defense.

Nuances of implementing self-defense

As part of the implementation of the right to self-defense, several questions arise:

Is it necessary to pay wages during the period when an employee does not fulfill his duties?
Does the employee have to be present at the workplace?

So, do you need to pay a salary? In essence, self-defense is actually downtime due to the fault of the employer. According to Part 1 of Article 157 of the Labor Code of the Russian Federation, in this case the employee receives a salary, since the downtime did not arise through his fault. However, there are exceptions:

The procedure in question does not apply if the employee refuses to be transferred to another position. In this case, he is unable to work. In this situation, it makes sense to pay for the period as forced absence (Articles 72 and 394 of the Labor Code of the Russian Federation).
If work is suspended due to late pay, no payments are guaranteed.

Should an employee remain at work? The law does not clarify this issue in any way. Therefore, the decision is made on an individual basis. The employee must be guided either by the employer’s recommendations or by the internal regulations of the company.

Where are class action lawsuits filed?

From October 1, 2021, employees can file such claims in courts of general jurisdiction (Article 244.20 of the Code of Civil Procedure of the Russian Federation).

There are 9 cassation courts of general jurisdiction in Russia.

A class action is filed in the usual manner, usually by a class representative under a power of attorney.

Important! Claims are filed in court only at the location of the defendant, that is, the employer.

If one of the parties is not satisfied with the court's decision, then they can file a complaint. A cassation appeal may be filed within a period not exceeding 3 months from the date of entry into force of the appealed court decision. The complaint is filed through the court of first instance.

Who does not have the right to self-defense

There are some categories of employees who do not have the right to self-defense due to the special nature of their work. In particular, these are:

Law enforcement officers responsible for the security of the country.
Employees of the Ministry of Emergency Situations.
Emergency services specialists.
Government employees.
Employees of public utilities and communications services.
People involved in emergency medical care.
People responsible for ensuring the stable operation of hazardous industries.
Fire service workers.
Employees of all other professions and positions whose actions are related to ensuring safety.

Restrictions on self-defense are due to the fact that refusal to work in this case may provoke a threat to the population. However, employees do not lose their right to protection completely. To assert their rights, they can contact the labor inspectorate, judicial authorities, and the prosecutor's office.

Collective lawsuit against employer

As one proverb says, “one person is like a straw, but together it’s hard to break him like a broom and rods.” It’s the same with class actions - as long as everyone is connected together, it’s difficult to break them, but easy to break them individually.

In what cases can a class action lawsuit be filed?

For example, such a claim could be filed by a labor collective against an employer who regularly does not pay employees wages or “forgets” to pay the required allowances and bonuses.

What conditions must exist to file a class action lawsuit?

There are four such conditions (clause 1 of Article 244.20 of the Code of Civil Procedure of the Russian Federation):

the presence of a commonality in relation to each member of the group of persons of the defendant;

That is, a single employer for individuals. After all, it happens in practice that employees are employed in several companies, although in fact they work together.

the general subject of the dispute, that is, common or homogeneous rights and legitimate interests of group members;

For example, all group members are seeking payment of wage arrears.

similar factual circumstances;
the use by all members of a group of persons of the same method of protecting their rights.

In addition, at least 20 applicants must join the demand for the protection of violated rights of workers.

When filing a class action, workers must be “shackled by one chain, bound by one purpose.”