GILS Employment Law: Turkmenistan

TURKMENISTAN 

(1) Maternity and Family Leave Rights

1.1. How long is the duration of maternity leave?

Maternity leave of 112 calendar days includes two periods - before and after childbirth. Pre-natal leave is granted to a woman from 32 weeks of pregnancy and lasts 56 calendar days. The leave after childbirth is 56 calendar days, in case of complicated childbirth it is extended by 16 calendar days, and in case of birth of two or more children - by 40 calendar days. 

Maternity leave is formalized by a certificate of incapacity for work, maternity benefit is paid as a lump sum for the prenatal and postnatal periods at the place of primary employment. 

Upon expiration of maternity leave, the right to unpaid parental leave is granted until the child reaches the age of three years.

1.2. What are the rights of a parent when returning to work after parental leave?

• The employee retains his place of work;
• Parental leave can be taken fully or in partially;
• Has the right to interrupt the leave and start work before the expiry of the parental leave by notifying the employer two weeks in advance. (In this case, annual main leave is granted for the actual time worked);
• State childcare allowance is paid for the child’s care

1.3. Do fathers possess the right to take paternity leave? 

Yes, the law provides equal rights to both mothers and fathers.

1.4. Are there any additional parental leave rights that employers must adhere to?

All the rights in regard to parental leave are covered by the Labor Code of Turkmenistan. There are no additional rights other than indicated by the Labor Code.

1.5. Do employees have the right to flexible working arrangements if they are responsible for dependents? 

Yes, the Labor Code does provide the availability of flexible hours if the employers are responsible for dependents.

(2) Termination of Employment

2.1. Is it mandatory for employers to provide notice of termination of employment? How is the notice duration determined?

• Two months in advance in case of liquidation of the enterprise or termination of the employer's activities, as well as the reduction in the number of employees;
• Two weeks in advance upon continuation of the employment contract where employee fails to perform the job due to his insufficient qualification;
• Two weeks prior to the expiration of the fixed-term labor contract;
• Three days prior to the expiration of the probationary period;
• Three days prior to termination of employment for: 

            - truancy, 

            - intoxication, 

            - disclosure of protected secrets (state, commercial), 

            - committing a criminal or administrative offense, 

            - violation of labor safety rules, 

            - provision of false documents/information.

2.2. Can employers enforce "garden leave" during the notice period, where the employee remains employed but does not have to attend work?

The Labor Code of Turkmenistan does not include such a concept.

2.3. What safeguards do employees have against dismissal? Under what circumstances is an employee considered to be dismissed? Is consent from a third party necessary before dismissal by an employer?

The guarantee against dismissal is the Constitution of Turkmenistan. If there are no violations and legal requirements are met, the employee can defend himself/herself by all instances, including legal proceedings. The employee is considered dismissed from the moment the order is issued in accordance with the Labor Code of Turkmenistan. 

In certain cases the law requires the consent of the trade union or other representative body of employees to be obtained upon dismissal by the employer, if such a body has been established at the enterprise.

2.4. Are there specific employee categories enjoying special protection against dismissal?

When an employment contract is terminated due to a reduction in the number or staff of employees, including in connection with changes in production technology, organization of labor, reduction in the scope of work, or changes in the nature of work, employees with higher qualifications and labor productivity have the priority right to remain on the job. 

In the event of equal qualifications and labor productivity, priority right to remain in employment is given to: 

1. a person recognized as a veteran in accordance with the law; 

2. a person with a disability from childhood; .an employee who has worked at the enterprise for at least ten years; 

3. a person of pre-retirement age (two years before retirement pension); 

4. a person who has received a labor injury or occupational disease at the given enterprise; 

5. an employee who has two or more dependents; 

6. a person who is the sole breadwinner in the family; 

7. an employee who is an in-service student at an educational institution; 

8. a person who has suffered as a result of a radiation catastrophe; 

9. a young specialist sent to work after graduation from a higher or secondary vocational education institution. 

An employee who graduated from an educational institution of secondary vocational or higher vocational education and was hired on the basis of his/her specialty is considered a young specialist within two years. 

The collective agreement may provide for other circumstances, in which preference is given to keeping employees at work.

The law also prohibits the termination of an employment contract on the employer's initiative with pregnant women and women with children under the age of three (a disabled child under the age of eighteen) (except in cases of liquidation, embezzlement, termination of a fixed-term contract).

2.5. Under what circumstances is an employer justified in dismissing employees: 1) due to individual reasons; 2) business-related grounds? Do employees receive compensation upon dismissal, and if so, how is it calculated?

1. The liquidation of the enterprise or termination of activity by the employer - a natural person; 

2. Reduction in the number or staff of employees, including in connection with changes in production technology, organization of labor, reduction in the volume of work; 

3. Non-compliance of an employee with the position held or work performed due to insufficient qualifications, including those confirmed by attestation results; 

4. Change of ownership of the enterprise (in respect of the head of the enterprise, his deputies and chief accountant). In this case, compensation should be provided in the amount of three months' average salary; 

5. Absence from work for more than four consecutive months due to temporary disability, not counting the period of maternity leave, unless the law establishes a longer period of retention of a job (position) in case of a certain illness. Workers who have lost the ability to work due to a labor injury or occupational disease retain their place of work (position) until their ability to work is restored or a disability is established; 

6. Systematic non-fulfillment by the employee, without a valid reason, of the labor duties assigned to him/her by the labor contract or internal labor regulations of the company, if the employee has previously been subjected to disciplinary measures; 

7. Absenteeism, including absence from the workplace without a valid excuse for more than three hours during the working day; 

8. Appearing at work in a state of alcoholic, narcotic, or other toxic intoxication; 

9. Disclosure of secrets (state, commercial, official, or other) protected by law that became known to the employee in connection with the performance of his or her work duties; 

10. Committing theft of property, embezzlement, its willful destruction, or damage at the place of work, established by a court sentence that has entered into legal force or a resolution of the body whose competence includes imposing an administrative penalty; 

11. Violation of labor protection requirements by an employee, if this violation resulted in serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences; 

12. In case of revealing the fact of submission of false documents or knowingly false information by the employee to the employer at the conclusion of the labor contract; 

13. Stipulated by the labor contract with the head of the enterprise, members of the executive body of the enterprise; 

14. Other cases established by the law.

Additional grounds for termination of the labor contract with certain categories of employees are: 

1. One-time gross violation of labor duties by the head of the enterprise (subdivision), his deputies and employees who bear disciplinary responsibility in accordance with their charters; 

2. Making unreasonable decisions by the head of the enterprise (subdivision), his/her deputies, and chief accountant, resulting in violation of the safety of property, its unauthorized use, or other damage (harm) to the enterprise;

3. Committing illegal actions by an employee directly servicing money or other valuables, as well as offenses related to corruption or creating conditions for corruption, by a civil servant or a person equal to him, if they give grounds for loss of confidence in these persons on the part of the employer; 

4. Committing an immoral misdemeanor incompatible with the continuation of this work by an employee performing educational functions; 

5. Referral of an employee to a special rehabilitation center on the basis of a court order that has entered into legal force; 

6. Other grounds in accordance with the law and the terms and conditions of the employment contract. 

In case of liquidation of the enterprise or reduction of headcount: 

• The employee is paid severance pay in the amount of the average monthly wage, and the average wage is retained for the period of employment, but not more than two months from the date of dismissal, taking into account the severance pay;
• By decision of the employment authority, the average wage is retained for the period of employment during the third month from the date of dismissal, provided that the employee has applied to the employment service within two weeks after dismissal and has not been employed. If an employee twice refuses offers of suitable work within three months, he/she loses the right to retain the average wage until the expiry of the three-month period. 

The average monthly salary is taken as the basis for calculation.

2.6. Are there particular protocols that employers must adhere to regarding individual dismissals? 

When an employee resigns at will, he or she must notify the employer of his or her resignation. However, the employer has the right not to wait, but to dismiss immediately.

2.7. What claims can an employee pursue if they are dismissed? What remedies are available for a successful claim?

An employee has the right to appeal to the court in case of unlawful dismissal or unlawful transfer to another lower-paid job, as well as in case of labor conditions, wages, imposition of disciplinary penalties, etc. The employee has the right to appeal to the court. If the claim is satisfied, the employee is entitled to:

1. mandatory payments of money for the time of forced absenteeism or the difference in wages for the time of performing lower-paid work, but not more than for one year; 

2. compensation of additional expenses (consultations of specialists, expenses for case management, etc.) related to appealing the termination (dissolution) of the employment contract or transfer to another lower-paid job, upon submission of relevant supporting documents; 

3. at the employee's request, the court may, instead of reinstating him at work, recover from the employer in favor of the employee additional compensation (in addition to that provided for in part two of this Article) in the amount of not less than three months' average salary.

2.8. Can employers resolve claims before or after they are initiated?

The law does not prohibit settlement of claims before or after they are initiated.

2.9. Does an employer bear additional obligations when dismissing multiple employees simultaneously?

The law does not limit the rules of dismissal to quantitative indicators. If there is a legitimate reason, it is possible. Thus, the main criterion for a proper dismissal is the execution of all necessary legal formalities for each employee individually (or the execution of one order for all employees) and the payment of all compensations established by the Labor Code.

2.10. How can employees enforce their rights regarding mass dismissals, and what are the consequences if an employer fails to comply with its obligations? 

Employees have the right to protect their rights by appealing to the trade union body, the prosecutor's office, or the court.

(3) Data Protection and Employee Privacy 

3.1. How does the employment relationship get impacted by employee data protection rights? Is the transfer of employee data across borders unrestricted for employers?

In accordance with the law, the transborder transfer of personal information to foreign States is only possible if those States ensure the protection of personal information. 

It should also be taken into account that, according to the legislation of Turkmenistan, transborder transfer of personal information to the territory of foreign states that do not ensure their protection may be carried out only in cases: 

• the written consent of the subject (employee) to the crossborder transfer of his or her personal data;
• under international treaties ratified by Turkmenistan;
• under the law, if it is necessary for the protection of the foundations of the constitutional order, human and civil rights and freedoms, public health and morals, public order, national defense, and State security;
• protection of life, health, other legitimate interests, constitutional rights, and freedoms of the subject or other persons if it is impossible to obtain the subject's consent.

3.2. Are employees entitled to obtain copies of any personal information held by their employer?

Upon employment, the Employee signs a consent to the processing of personal data, which allows the use of this data in connection with industrial needs (for accounting reports, to pension authorities, to represent the interests of the company).

3.3. Do employers have the authority to conduct preemployment checks on prospective employees (such as criminal record checks)?

The Information Centre of the Ministry of Internal Affairs collects and processes personal data on criminal records within the limits of its authority in the cases and according to the procedure established by law.

3.4. Do employers have the right to monitor employee emails, phone calls, or use of company computer systems?

Such issues are reflected in the company's local regulations (code of ethics and behavior, rules for using the Internet, based on internal policy). If these rules do not violate the law and are approved by the employer's order and informed to the employees, they become mandatory for each employee. 

For example, not to use the work phone for personal purposes, or to limit the time of conversations on the work phone, to put a ban on the use of certain sites or programs, etc.

3.5. Can employers control an employee's use of social media both inside and outside the workplace?

An employer may use any tools to monitor the work activities and timekeeping of employees. The law does not specify permitted or prohibited methods of control, so the installation of special software on employees' computers is not prohibited. 

Article 30 of the Act states that Internet users are liable for violations sent through Internet channels as well as information containing information whose dissemination is restricted or prohibited by law.

(4) Court Practice and Procedure

4.1. Which courts or tribunals hold jurisdiction over employment-related complaints, and what is their composition?

Employment-related complaints shall be examined by the court of first instance by a single judge, and in the court of cassation and supervisory instance - by a presiding judge and at least two judges.

4.2. What procedures govern employment-related complaints? Is conciliation obligatory before proceeding with a complaint, and is there a fee for employees to submit a claim? 

Pre-trial settlement of labor disputes with the employer is most often handled by a commission which is a special body that is formed on the initiative of the employee or the employer. The commission includes an equal number of representatives from each party to ensure its objectivity. 

If the employee appeals to the court, the parties may conclude the court proceedings by concluding a settlement agreement; they may recognize the claims or waive them, unless otherwise provided by law. 

In preparing the case for trial, taking into account the circumstances of the case, the judge shall take measures to conclude a settlement agreement between the parties and explain to the parties their right to apply to the arbitration court for dispute resolution and the consequences of such actions. Such claims arising from labor relations are exempt from payment of court costs.

4.3. What is the typical duration for resolving employment-related complaints? 

Cases are considered and resolved by the court within no more than two months from the date of receipt of the application by the court.

4.4. Is it possible to appeal against a decision at the first instance, and if so, how long does such an appeal usually take? 

Yes, you can file a complaint to a higher court - the court of cassation instance. The court of cassation instance must consider the case received on the basis of the cassation appeal or submission within two months from the date of its receipt.

(5) Work Permits 

5.1. What are the restrictions or limitations placed on individuals holding a work permit in terms of job duties, employer changes, or duration of stay? 

In terms of job duties - working conditions, remuneration, labor protection, social security and insurance procedures for foreign citizens working in Turkmenistan are established in accordance with the law.

Foreign nationals invited to work in labor relations have the same rights and bear the same responsibilities as Turkmen citizens, unless otherwise provided for in Turkmenistan's legislation. 

In case of change of the employer, the rights and obligations are the same as for citizens of Turkmenistan. 

Duration of stay depends on the term of the work permit, which is issued for a period of up to one year. 

The number of foreign workers in an enterprise is limited to no more than 10% of the total number of employees.

5.2. What are the requirements for obtaining a work permit? 

• Foreign citizens are invited to work in Turkmenistan by legal entities of Turkmenistan, legal entities of foreign states operating in the territory of Turkmenistan and their branches and representative offices, as well as by individuals of Turkmenistan using hired labor, including individuals engaged in entrepreneurial activity without forming a legal entity (hereinafter referred to as employers) on the basis of labor or civil law contracts for the performance of work (provision of services).
• To issue a work permit to foreign nationals, the employer submits an application document to the State Migration Service of Turkmenistan.
• Properly executed applications and all attached necessary documents are accepted in accordance with the established procedure.

The State Migration Service approves the form of a work permit, as well as the forms of applications for the issuance of work permits to foreign nationals, the extension of permits, the transfer of foreign nationals from one employer to another employer and the list of documents to be attached to the applications. 

Appeals and attached documents shall be considered within 30 days from the date of their acceptance. When necessary, this term may be extended up to 45 calendar days.

• Legal entities hosting foreign nationals in Turkmenistan, when engaging foreign nationals in the implementation of contracts concluded with ministries (departments and other organizations) of Turkmenistan, attach to the application a petition from the head of the relevant ministry (department or other organization) with which the contract was concluded to engage the foreign national in work or documents confirming agreement with the Cabinet of Ministers on the issue of the foreign national's work in Turkmenistan.
• After the State Migration Service has carried out an appropriate verification of the applications received and the documents attached to them, the collected conclusions, information, applications and the documents attached to them are submitted for consideration by the Commission on Monitoring Compliance with the Procedure for Inviting Foreign Citizens to Temporary Work.

For attracting foreign nationals to work in Turkmenistan, employers are charged a fee of USD 25 for each month of work in Turkmenistan of the foreign national attracted. State enterprises and organizations of Turkmenistan in cases of attracting foreign workers for the development of the industry pay a fee of TMT 50 for each foreign citizen for each month of work. (USD 1 = TMT 3.5). 

The employer is notified in writing of the decision to refuse to issue, extend the validity of work permits for foreign nationals in Turkmenistan or to transfer a foreign national from one employer to another within 5 working days of the decision. 

If an employer disagrees with the refusal to issue a work permit, extend its term and transfer a foreign citizen from one employer to another, he or she may appeal the decision to the court.

The issuance of a work permit, the extension of its validity or the transfer of a foreign citizen from one employer to another employer may be refused on the following grounds: 

• On the grounds on which, in accordance with Turkmen law, a foreign citizen may be denied a visa;
• If the number of foreign nationals attracted to work in Turkmenistan exceeds the established quota;
• If a foreign worker is invited to work that does not require high qualifications, professional training or special knowledge;
• If the employer engages foreign labor force to engage in an activity not provided for by its Charter;
• If the employer fails to fulfill obligations under a labor or civil law contract with a foreign citizen;
• If, in accordance with the procedure established by Turkmen law or international agreements to which Turkmenistan is a party, a decision has been taken in respect of a foreign citizen that his or her stay in Turkmenistan is undesirable;
• On other grounds provided for by law.

5.3. Are there any recent changes or updates to work permit regulations or policies that individuals or employers should be aware of? 

The current issue is regulated in detail by the "Regulation on the procedure for labor activity in Turkmenistan of foreign citizens and stateless persons", approved by the Decree of President of Turkmenistan № 14230 of 02.05.2015, which is still in force. The main requirements were specified above in article 5.2.

5.4. Are there specific industries or occupations that have different requirements or exemptions for obtaining a work permit? 

Yes, there are. 

• A foreign worker is invited for a job the performance of which requires high qualifications, professional training or special knowledge;
• State enterprises and organizations of Turkmenistan attract foreign workers for the development of the industry. 

For example, authorization is not required for: 

• foreign citizens arriving in Turkmenistan for up to one month to conduct financial, audit and other inspections, official negotiations, conclude contracts, and as experts;
• employees of foreign legal entities coming to Turkmenistan for up to one month to install, repair and provide technical services;
• founders, shareholders, managers of legal entities (their branches and representative offices) and foreign citizens who are members of the managerial staff of foreign legal entities and who do not have labor relations in accordance with the labor legislation of Turkmenistan.

5.5. What is the ratio of foreign and local labor? 

The ratio is 90% local and 10% foreign citizens, however, the commission has the authority to change the ratio of foreign workers. 

The issue is considered upon the employer's petition, which he submits to the State Migration Service of Turkmenistan. If the employer carries out activities under a contract with a state organization, before submitting the petition to the State Migration Service of Turkmenistan, he must agree to the petition with the customer and with the relevant deputies of the Cabinet of Ministers of Turkmenistan. 

Based on the decision of the Commission, the State Migration Service of Turkmenistan prepares proposals and submits pre-agreed (with the customer, Deputy Chairman of the Cabinet of Ministers and Ministry of Labor) proposals through the relevant Deputy Chairman of the Cabinet of Ministers of Turkmenistan, and in other cases - directly to the President of Turkmenistan for consideration. Changes in the ratio of foreign workers are determined by a separate act of the President of Turkmenistan.

(6) Tax

6.1. What are the legal obligations and requirements regarding the individual income tax paid by employers? 

The employer pays contributions to mandatory pension insurance for employees - 20% of the salary.

6.2. What is the percentage of withholding tax? 

• Tax on income of physical persons (employees) 10% of salary;
• Ashgabat city improvement fee TMT 5 (withheld from employee's salary).

 

Author:

Baky Amanmyradov.