home » taxes » Forced to work outside of working hours. The employer forces you to work overtime - what should the employee do? Overtime waiver policy

Forced to work outside of working hours. The employer forces you to work overtime - what should the employee do? Overtime waiver policy

Vacation is over. But this is no reason to be upset. You still have plenty of ways to legally relax.

1. Breaks during the working day

The most popular way to take a break from work is to go out for lunch and relax at the same time. During the working day, employees must be provided with a break "for rest and meals of no more than two hours and no less than 30 minutes, which in work time does not turn on ”(Labor Code). That is, if you work from 10 to 18:30, a half-hour break is already included in your work schedule. The time and duration of the break is established by the internal labor schedule of the company.

2. Weekend

The employer sets the schedule for your work. In this regard, you may have one or two days off. But one of them must be on Sunday. Saturday is usually the second day off.

3. Holidays

Non-working holidays in our country are ():

January 1, 2, 3, 4, 5 - New Year holidays.
January 7 - Christmas.
February 23 - Defender of the Fatherland Day.
March 8 is International Women's Day.
May 1 - Spring and Labor Day.
May 9 - Victory Day.
June 12 - Day of Russia.
November 4 is National Unity Day.

If a holiday falls on a weekend, the day before or after the holiday is considered a non-working day. And if you were asked to go to work these days, know that the employer must pay twice as much for this.

Is it possible to involve an employee in overtime work without consent?

If the employee agrees to extracurricular work, he puts a signature in the statement of agreement, in the order itself or in an additional application.

When refusing additional work the employee must also notify the supervisor in writing.

If an agreement between the person and the trade union is necessary, the draft decree is first of all sent to the employee, and then to the members of the trade union organization. Provided that both entities agree and approve the project, another order is issued and again submitted to the employee.

In each new case, the order is reissued. It is unacceptable to draw up planned work for any period and a list of employees for its implementation.

To refuse processing, you should collect documents proving the length of the working day:

accounting sheet;
labor contract;
charts;
internal order.

After collecting all the documents, you need to notify the authorities in writing about the refusal to work overtime. You can always count on the assistance of the Inspectorate for labor activity and the trade union.

What do you do if your boss forces you?

When the boss forces you to work overtime without the consent of the employee, in order to protect the rights, it is possible to apply to the state labor inspection, prosecutor's office or immediately with a lawsuit.

Trade unions often use this form of defiance as the “Italian strike”, which can also be called work by the rules, when employees strictly fulfill their official duties according to his job description.

Such a fairly safe form of protest is suitable for creative and office workers, who very rarely organize into trade unions.

Someone may not agree, believing that conflict with the employer threatens with dismissal. But it is necessary to understand that it is impossible to dismiss an employee due to the refusal of both paid and unpaid work during overtime or weekends.

Dismissal without consent, especially when he "works strictly according to the rules", the procedure is very complicated and costly for the authorities. In most cases it is easier to negotiate.

Provided that the employee cannot prove his case in a trade union or court, the employer will still force him to work after hours, it is worth thinking about changing jobs.

Where to complain if they do not pay extra for processing?

It's fast and free!

There are situations when things at the enterprise are not going as well as we would like, and it is necessary to temporarily suspend work. What to do with the employees in this case? Announce simple! To ensure that the introduction of downtime does not turn into litigation, it is necessary to correctly draw up all the documents. We will study what mistakes employers make in such situations.

It is no secret that the norms of the Labor Code of the Russian Federation on downtime are not numerous. According to Art. 72.2 of the Labor Code of the Russian Federation, idle time is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. By virtue of Art. 22, 56 of the Labor Code of the Russian Federation, the employer is obliged to provide employees with work due to employment contract. In case of failure to fulfill this obligation, the legislator imposes liability on the employer in the form of payment for downtime.

According to Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least 2/3 of the average salary of the employee. Downtime for reasons beyond the control of the employer and employee is paid at least 2/3 tariff rate, salary (official salary), calculated in proportion to the downtime. Downtime due to the fault of the employee is not paid.

With a rather "modest" legal regulation just me personnel services are forced to turn to judicial practice in order to avoid mistakes when registering downtime and protect the employer from litigation. Consider what mistakes employers most often make when declaring downtime.

1. Incorrectly defined downtime type

The Labor Code of the Russian Federation distinguishes three types of downtime: due to the fault of the employer, for reasons beyond the control of the employer and the employee, and through the fault of the employee. Depending on the type of downtime, the Labor Code of the Russian Federation provides for various amounts of downtime payment. It is not easy in practice to determine whether the employer is at fault, or whether the downtime arose for reasons beyond the control of either party to the employment contract. In the event of an incorrect determination of the type of downtime and the amount of payment, the employer will be forced, according to a court decision, not only to make additional payments, but also to compensate for moral damage, and if the employee applies to the labor inspectorate, he will also pay a fine.

For your information. There is no exhaustive list of reasons for downtime in the Labor Code of the Russian Federation. It can be:

liquidation, merger or division structural divisions companies (organizational reasons);

– introduction of new or change existing methods production of products (technological reasons);

- breakdown, replacement or modernization of production equipment (technical reasons);

— financial crisis, difficult financial situation of the company, violation of contractual obligations by contractors (reasons of an economic nature).

The main criterion for downtime due to the fault of the employer is that it is caused by the guilty actions or inaction of the employer - both intentional and as a result of inept management, failure to take into account entrepreneurial risk. Moreover, the obligation to prove the existence of these circumstances rests with the employer (paragraph 17 of the decision of the Plenum of the Supreme Court Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation").

Often, employers refer to the introduction of downtime due to the deterioration of the economic situation in the organization, believing that the reason did not depend on any of the parties to the employment contract. However, this opinion is erroneous. Judicial practice does not support it.

Arbitrage practice. Vladimir Regional Court in the appeal ruling dated October 31, 2013 in case N 33-3566 / 2013 noted that the negative financial situation of the company (lack of orders) is a financial (commercial) risk in relations between entities entrepreneurial activity therefore refers to the direct fault of the employer.

Arbitrage practice. The Tula Regional Court in the cassation ruling dated November 10, 2011 in case No. 33-3848 noted that the decrease in demand for manufactured products, the purchase of raw materials at inflated prices, and the decrease in production volumes are the fault of the employer.

Then the question arises: what will relate to the reasons that do not depend on the will of the parties? Let us turn to judicial practice and clarifications of officials. According to them it is:

- issuing orders government bodies(Determination of the Moscow City Court dated July 15, 2010 in case N 4g / 2-5685 / 10);

– extreme weather(See, for example, the recommendations of the Ministry of Health and Social Development on the organization of work and rest regimes in conditions of extreme temperatures and smoke dated 08/06/2010);

- breakdown of the machine tool of the employee who uses it, but is not to blame for its breakdown. For an employee who broke the machine, the reason for the downtime will be his guilty actions (letter of Rostrud dated 05/12/2011 N 1276-6-1).

2. There are no documents confirming the need for downtime

The personnel department must collect the package required documents, which will be a confirmation of the legality of the introduction of downtime.

Arbitrage practice. The Moscow Regional Court, in its ruling dated November 1, 2011 in case No. 33-24455, emphasized that when deciding to establish downtime, the employer must keep in mind that there must be commercial, accounting and other documents confirming the need to declare downtime. Otherwise, the court may find it unreasonable.

3. Downtime not documented

The labor law does not mandatory requirements to the content of the simple documentation. Therefore, the employer decides for himself how best to do it. In any case, you need to issue a demurrage order. By the way, it will be needed by the accounting department to account for expenses for income tax purposes.

Arbitrage practice. Since the amount of payment for downtime depends on the cause of its occurrence, each downtime must be documented, identifying its cause (ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated February 3, 2014 in case N 33-321 / 2014, appeal ruling of the Kemerovo Regional court of 30.01.2014 in case N 33-73-2014).

Based judicial practice The order must include:

- start and end dates. A specific end date may not be indicated if at the time of issuing the order it is impossible to determine the duration of downtime (the labor legislation does not establish deadlines for its introduction);

- Cause of downtime. Here you should indicate the nature of the reason: economic, technological, technical or organizational; describe the specific circumstances leading to the downtime;

- due to whose fault the downtime occurred (employer, employee or for reasons beyond the control of the parties);

- positions (professions), full name employees or the names of the structural divisions of the organization in respect of which the downtime is declared;

- the need for the presence at the workplace of employees in respect of whom a downtime is declared or permission not to go to work (indicating specific full names, positions (professions), structural divisions or the organization as a whole).

Labor legislation also does not impose requirements for documents that are the basis for an order. Depending on the workflow in the organization, these can be:

- service (report) note of the head of the structural unit, whose competence includes the organization or control of the relevant work;

- downtime record sheet. Its form is not legally established. Usually, it contains the date and time of the start and end of downtime, full name. and positions (professions) of employees and reasons for downtime;

- an act of idle time, which is drawn up by the heads of idle structural divisions; it reflects the reasons and duration of downtime, positions (professions) of employees, etc.

By the way, it should be borne in mind that if a downtime actually took place, but the employer, in violation of the law, did not issue an order to announce it and did not pay the downtime in an appropriate way, then this will not prevent the court from ruling in favor of the employee.

Arbitrage practice. The division of the organization did not function due to a shortage of components, and SMS messages were sent to employees, as well as calls were made to Cell Phones that you don't have to go to work. The Lipetsk Regional Court, in its appeal ruling dated 02.10.2013 in case No. 33-2607/2013, agreed with the State Labor Inspectorate, which issued an order obliging the employer to recognize the working hours indicated in the messages as downtime and pay the employees downtime.

4. The downtime order does not specify whether employees should be present at work

The Labor Code of the Russian Federation does not contain a requirement for the mandatory presence of employees at workplaces during downtime. But since the downtime period refers to working time (part 1 of article 91 of the Labor Code of the Russian Federation), and not to rest time (art. 107 of the Labor Code of the Russian Federation), employees cannot use it at their discretion and leave their jobs. Their absence from work without the permission of the employer can be regarded as absenteeism. However, a downtime order may allow employees to stay away from work. In order to avoid disputes, the order should clearly indicate whether employees are required to be present at the workplace or not.

Arbitrage practice. The Orenburg Regional Court, in an appeal ruling dated 06/27/2013 in case N 33-3812 / 2013, confirmed the legality of the dismissal under subp. "a" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation due to the absence of an employee at the workplace during the downtime.

5. Downtime order issued by an unauthorized person

The order to declare downtime must be signed by the appropriate person (head of the organization or other authorized person). If an order is issued by an unauthorized person, the announcement of downtime may be declared illegal.

Arbitrage practice. As emphasized by the Khabarovsk Regional Court in the appeal ruling of July 20, 2012 in case N 33-4009 / 2012, the director of the organization is not authorized to issue an order for downtime after the introduction of bankruptcy management. In such a situation, only the bankruptcy trustee can do this.

6. Employees were not familiar with the order to establish downtime

Employees for whom downtime is declared must be familiar with the downtime order. In case of refusal to familiarize, an act is drawn up, which is signed by the commission.

7. The employment service is not notified about the downtime associated with the suspension of production

The employer is obliged to notify the employment service of the downtime if it is associated with the suspension of production. At the same time, as Rostrud explained in a letter dated March 19, 2012 N 395-6-1, we are talking about the suspension of production as a whole, and not of individual units or equipment. This must be done within three working days after the decision to suspend production (declaration of downtime) (paragraph 2 of article 25 of the Law of the Russian Federation of 19.04.1991 N 1032-1 "On employment in the Russian Federation"). Since the unified form of the message has not been approved, it can be made in free form.

8. An employee who was declared idle was transferred to another job without his consent

Some employers, referring to Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, they practice the transfer of an employee who has been declared idle to another job without his consent. It should be remembered that such a transfer is allowed only if the downtime is caused by the emergency circumstances listed in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation.

Arbitrage practice. As indicated by the Moscow City Court in the appeal ruling of 06/06/2012 in case N 11-9038, from the analysis of the norms of Art. 72.2 of the Labor Code of the Russian Federation it follows that the transfer of an employee to another position is allowed if the downtime is caused by a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases that endanger life or normal living conditions of the entire population or part of it. Since no such circumstances were established by the court, the employee's transfer was declared illegal.

9. The time sheet for the downtime period is not drawn up or is drawn up incorrectly

According to Art. 91 of the Labor Code of the Russian Federation working hours - the time during which the employee, in accordance with the rules of the internal labor schedule and the terms of the employment contract, must perform labor duties, as well as other periods of time that, in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts RF refer to working time. The employer is obliged to keep a record of the time actually worked by each employee.

Based on orders memos, acts or sheets of idle time, a time sheet is filled out. Can be used unified forms N T-12 or N T-13, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1, which for this should be approved by order for the organization. In the appropriate columns, it is necessary to indicate the alphabetic or numeric idle code (due to the fault of the employer - "RP" or "31", as well as the length of time not worked (in hours, minutes)).

Arbitrage practice. Failure to reflect downtime or its type in the time sheet entails the illegality of the announcement of downtime (appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated February 3, 2014 in case N 33-321 / 2014).

Incorrect indication of the type of downtime (due to the fault of the employer or for reasons beyond the control of the employer) in the time sheet and the corresponding incorrect payment of downtime in the event of a dispute entails the court charging additional wages to the employee for the downtime (cassation ruling of the Tula Regional Court dated 11/10/2011 in case No. 33-3848).

10. Mistakes made when paying for downtime

Downtime caused by the fault of the employer is paid in the amount of at least 2/3 of the average salary of the employee (part 1 of article 157 of the Labor Code of the Russian Federation).

According to Art. 139 of the Labor Code of the Russian Federation for all cases of determining the size of the average wage (average earnings), a single procedure for its calculation is established. To calculate the average wage, all types of payments provided for by the wage system applied by the relevant employer are taken into account, regardless of the sources of these payments. In any mode of work, the calculation of the average salary of an employee is made on the basis of the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains the average salary. Wherein calendar month the period from the 1st to the 30th (31st) day of the corresponding month inclusive is considered (in February - to the 28th (29th) day inclusive).

Arbitrage practice. The Moscow Regional Court, in its ruling dated January 31, 2012 in case N 33-2350, drew attention to the fact that when establishing the average daily wage, the total amount of payments is not divided by the number 29.4, since it is the average monthly number of calendar days and is used exclusively for determination of the average daily earnings for the payment of vacations and payment of compensation for unused vacations.

If the employer incorrectly determined the type of downtime (for example, he indicated downtime for reasons beyond the control of the employer and the employee, while in fact the downtime took place through the fault of the employer), then the court will correct it, while accruing additional payment for downtime (appeal ruling of the Vladimir Regional Court dated 31.10 .2013 in case N 33-3566/2013). That is why it is so important to determine the type of downtime correctly.

By the way, payments in favor of employees for downtime are not compensatory in terms of the terminology of the Labor Code of the Russian Federation (Article 164) and are subject to personal income tax on the basis of paragraph 1 of Art. 210, Art. 217 of the Tax Code of the Russian Federation.

11. The employee is forcibly sent on unpaid leave for the downtime

From Art. 128 of the Labor Code of the Russian Federation, it follows that leave without pay is divided into those that the employer can provide to the employee, and those that he is obliged to provide. But both in the first and in the second cases, the basis for granting such leave is the initiative of the employee and his voluntary will. The possibility of sending an employee on leave without pay at the initiative of the employer, albeit on the basis of the employee’s application, but due to circumstances related to the activities of the employer company, is not provided for by labor legislation.

On June 27, 1996, the Ministry of Labor of the Russian Federation gave clarification N 6 "On leave without pay at the initiative of the employer", in which it indicated that such leaves can only be granted at the request of employees for family reasons and other good reasons. "Forced" leave without pay at the initiative of the employer labor legislation is not provided.

12. The employee is paid for downtime if he falls ill during this period

The question of whether to pay for downtime if an employee falls ill has led to much controversy until recently. Specialists of the FSS of Russia believed that the benefit should not be accrued if the employee fell ill during the idle period (letter dated 03.22.2010 N 02-03-13 / 08-2497). However, the courts took a different view.

Arbitrage practice. The Presidium of the Supreme Arbitration Court of the Russian Federation in its resolution of May 18, 2010 N 17762/09 indicated that the legislation in force at that time did not establish the dependence of the payment of benefits on when the employee fell ill (before the downtime or after).

Interestingly, the point of view of the courts did not find support among legislators. On January 1, 2011, Federal Law No. 255-FZ of December 29, 2006 "On Compulsory Social Insurance in Case of Temporary Disability Due to Motherhood" (hereinafter - Law No. 255-FZ) was amended. According to new edition Part 7 Art. 7 of Law N 255-FZ, a temporary disability certificate is paid only if the employee’s illness occurred before the organization declared idle time.

Arbitrage practice. In the ruling of the Constitutional Court of the Russian Federation of January 17, 2012 N 8-О-О "At the request of the Livoberezhny District Court of the city of Lipetsk to verify the constitutionality of paragraph 5 of part 1 of Article 9 federal law"On compulsory social insurance in case of temporary disability and in connection with motherhood" it is indicated: clause 5, part 1, art. 9 of Law N 255-FZ, which excludes the appointment of an insured person for the period of downtime for temporary disability benefits that occurred during the downtime, is due to the intended purpose of this type of insurance coverage and in systemic connection with Art. 157 of the Labor Code of the Russian Federation cannot be considered as violating the constitutional rights of citizens.

13. Downtime announced simultaneously with the reduction without objective reasons

In accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, when terminating an employment contract due to a reduction in the number or staff, the employer is obliged to notify the employees in writing under personal signature at least two months prior to termination. At the same time, from the date of notice of dismissal until the day of termination of the employment contract, the essence employment relationship between employee and employer does not change. The employer is obliged to provide the employee with work according to the stipulated labor function, to pay timely and in full wages etc.

Simple in meaning Art. 72.2 of the Labor Code of the Russian Federation is a temporary measure in connection with the occurrence of certain circumstances that do not entail a decrease in the number of employees and termination of the employment contract. As we have repeatedly stated, the employer must have objective circumstances (of an economic, technological, technical or organizational nature) to issue an order for downtime in the organization (individual divisions of the organization).

Thus, carrying out measures to reduce the number or staff of the organization's employees and notifying them of the upcoming

Dismissals do not constitute downtime in the sense in which this term

Used in part 3 of Art. 72.2 of the Labor Code of the Russian Federation. If there are objective circumstances that caused the downtime, and the employer issued an appropriate downtime order, then employees who were warned about dismissal due to a reduction in the number or staff may also be in downtime (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).

In the event of a dispute, the courts evaluate the circumstances that led to the downtime and find out whether it was caused by a temporary suspension of work.

Arbitrage practice. The Kemerovo Regional Court, in an appeal ruling dated January 30, 2014 in case No. 33-73-2014, confirmed the legality of the announcement of downtime during the period of notification of staff reductions, and indicated that the plaintiff was sent to downtime not because his position was subject to reduction, but due to reasons of an economic nature, about which the appropriate orders were issued by the employer.

Arbitrage practice. In turn, the Murmansk Regional Court, in its appeal ruling dated March 5, 2014 N 33-377-2014, pointed out the illegality of the announcement of downtime, since the issuance of the downtime order in relation to the plaintiffs was not caused by a temporary suspension of work. The lack of work for the plaintiffs was of a permanent nature, without having signs of its temporary suspension.

14. An order to end the downtime has not been issued (in the absence of an end date for the downtime in the order)

If a specific end date was indicated in the order to declare downtime (for example, "declare downtime from 08/07/2014 to 08/18/2014"), then this order is terminated automatically. If the order to announce the downtime was issued with an open date (that is, at the time of its issuance it was impossible to determine the duration of the downtime), then the employer must issue an order to end the downtime, in which to indicate:

- the date from which work resumes;

- positions (professions), full name employees (employee) or the names of structural units (subdivisions) of the organization that start work after downtime.

It is mandatory to familiarize the employees of the relevant departments with the order under a personal signature. This will help to avoid controversial situations when employees did not show up for work and claim that the employer did not notify them of the end of downtime.

Rest time is the time during which the employee is free from the performance of labor duties and which he can use at his own discretion (Article 106 of the Labor Code of the Russian Federation).

One of the basic rights of an employee is the right to rest. The types of rest time include: breaks during the working day, daily rest, weekends, non-working holidays, holidays (Art. 21, Art. 107 of the Labor Code of the Russian Federation).

Depending on which of the specified types of rest the employer will involve the employee in work outside of working hours, the conditions and procedure for such involvement will depend.

In accordance with Art. 97 of the Labor Code of the Russian Federation, the employer has the right to involve an employee in work outside the working hours established for this employee, only in the manner determined by the Labor Code of the Russian Federation. Such involvement can be in the form of overtime work (Article 99 of the Labor Code of the Russian Federation) or on an irregular working day (Article 101 of the Labor Code of the Russian Federation).

At overtime work the employee, at the initiative of the employer, performs work outside the working hours established for him.
Such attraction is allowed with written consent employee in the following cases:

if necessary, perform (finish) the work begun, which, due to an unforeseen delay due to specifications production could not be performed (completed) during the working hours established for the employee, if the failure to perform (non-completion) of this work may entail damage or destruction of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), state or municipal property, or endanger the life and health of people;
in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause a significant number of employees to stop working;
to continue work if the replacement employee does not appear, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift with another employee.

without the consent of the employee, it is possible to involve in the following cases:

in the performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
in the production of public necessary work to eliminate unforeseen circumstances that violate the normal functioning of water supply, gas supply, heating, lighting, sewerage, transport, communications;
in the performance of work, the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases that put under threat to the life or normal living conditions of the entire population or part of it.

In other cases, involvement in overtime work is allowed with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.

It should be borne in mind that the Labor Code of the Russian Federation provides for a number of categories of workers (for example, pregnant women, workers under the age of eighteen years), whose involvement in overtime work is not allowed.

Disabled persons and women with children under the age of three may be involved in overtime work only with their consent, unless this is prohibited to them for health reasons in accordance with a medical report. At the same time, such employees must be familiarized with their right to refuse overtime work against signature.

The employer must take into account that the duration of overtime work should not exceed 4 hours for each employee for two consecutive days and 120 hours per year. It is the employer's responsibility to ensure that each employee's overtime hours are accurately recorded.

During an irregular working day, individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.
Based on the provisions of articles 57 and 100 of the Labor Code of the Russian Federation for workers working on irregular working hours, this condition should be included in. If the employee and the employer have already agreed that the employee has been identified and, in this regard, he will be occasionally involved in the performance of his labor function outside of working hours, then the consent of the employee is no longer required for each fact of such involvement.

In paragraph 2 of the Recommendation International Organization Labor dated 06/24/1936 N 47 on annual paid holidays states that the leave is intended so that the worker can restore his physical and mental strength expended during the year.

These norms say that the employee has the right to rest, including annual paid leave, during which he must rest, restoring his health.

However, Art. 125 of the Labor Code of the Russian Federation provides for the possibility of recalling an employee from vacation. It is allowed only with the written consent of the employee. The unused part of the vacation in connection with this must be provided at the choice of the employee at a time convenient for him during the current working year or added to the vacation for the next working year. The same article provides for categories of workers whose vacation is prohibited from being recalled, namely: workers under the age of eighteen, pregnant women and workers engaged in work with harmful and (or) hazardous conditions labor.

The procedure for engaging in work on weekends and non-working holidays is regulated by Art. 113 of the Labor Code of the Russian Federation.

By general rule work on weekends and non-working holidays is prohibited. However, there are exceptions.

Employees can be involved in work on weekends and holidays only with their written consent if it is necessary to perform unforeseen work in advance, on the urgent implementation of which depends in the future normal work organization as a whole or its separate structural divisions.

without the consent of the employee, it is allowed to involve him in work on weekends and non-working holidays only in cases expressly provided for in part three of Art. 113 of the Labor Code of the Russian Federation, namely:

to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
to prevent accidents, destruction or damage to the property of the employer, state or municipal property;
to perform work, the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency situations, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases that put under threat to the life or normal living conditions of the entire population or part of it.

In other cases, involvement in work on weekends and non-working holidays is allowed with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.

The law provides for a number of categories of workers (disabled people, women with children under the age of three), whose involvement in work on weekends and non-working holidays is allowed only on condition that this is not prohibited to them for health reasons in accordance with a medical report. At the same time, these categories must be familiarized with their right to refuse to work on a weekend or non-working holiday against signature.

A complete ban on engaging in work on weekends and non-working holidays is established in relation to pregnant women (Article 259 of the Labor Code of the Russian Federation), workers under the age of eighteen years (Article 268 of the Labor Code of the Russian Federation).

Prepared answer:
Legal Consulting Service Expert GARANT
Troshina Tatiana

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Kikinskaya Anna

The material was prepared on the basis of an individual written consultation provided as part of the service

The need to stay late at work to carry out orders from superiors is faced by employees of the majority Russian companies, but far from always these processing are paid, although Labor Code The Russian Federation clearly regulates the procedure for payment or compensation for work performed overtime or on weekends and non-working holidays.

The legal instruction site will tell you what to do if the authorities make you work more than the allotted time.

Employer Market

The economic crisis, the imminent approach of which is indicated by both the forecasts of authoritative experts and objective indicators, for example, the fall in oil prices and the depreciating ruble, will inevitably affect the labor market. If in the conditions economic growth companies compete for good workers who are lured by high salaries, bonuses and bonuses, and labor laws are strictly observed, then during the crisis the situation changes dramatically. There is already fierce competition among specialists for workplace, and those who have it are ready to do anything to preserve it, including constantly processing it. Employees are becoming more accommodating, employers are becoming bolder. This is an objective process.

However, economic difficulties do not mean that the employee should not know his rights, because it may turn out that one motivated (with reference to the article of the law) refusal of unpaid overtime work will be enough to get paid for this work next time. According to experts, employers are also prompted to violate labor laws by the tacit consent of employees. Well, if this silence is well paid, but for the most part it is due to elementary ignorance of their rights.

Overtime work

Work that is performed at the initiative of the employer after the end of the normal working day (8 hours a day with a 40-hour working week) is called overtime. At the same time, the initiative of the employer in determining overtime work is decisive. If an employee is late in the office because he does not have time to do everything on time, this is not overtime work. If the boss asked the employee to stay, that's another matter.

Involving an employee in overtime work is possible only with his written consent and for additional payment. In accordance with Article 152 of the Labor Code of the Russian Federation, the first two hours of overtime work are paid at least one and a half times, the next - at least twice. In addition, the duration of overtime work for each employee should not exceed 4 hours on two consecutive days and 120 hours per year.

To ask an employee to work for an hour or two, the boss must also have good reasons, which are listed in the Labor Code: the shift did not go to work, which is of a continuous nature; the work was started, but due to an unforeseen delay for technical reasons, it was not completed, which threatens the enterprise with loss or damage to property or threatens the life or health of people; works are of a repair nature, the failure to perform which threatens the company with downtime.

Thus, overtime work is voluntary. In accordance with Article 99 of the Labor Code of the Russian Federation, in exceptional cases, when it is necessary to prevent a catastrophe, the employer can force an employee to work even for double or triple pay, restore the operation of the electricity and gas supply system, establish the functioning of the transport system, as well as in the conditions of the regime emergency or martial law. In such cases, even the consent of the employee is not required.

Work on holidays and weekends

Employees may be involved in work on holidays and weekends only with written consent. Such work is paid at least twice the amount, even if the payment is piecework. In accordance with Article 153 of the Labor Code of the Russian Federation, a specific amount of wages on a weekend or non-working holiday can be established by a collective agreement, a local regulatory act adopted taking into account the opinion of the representative body of workers, an employment contract. This is especially true for creative workers - journalists, actors, directors, etc., for whom working on weekends is a common thing.

As in the case of overtime work, the law establishes a list of major circumstances when the consent of employees to work on holidays and weekends is not required.

In addition, the employee may agree to a single payment for work on holidays and weekends, if subsequently he is granted time off on working days, which is not subject to payment.

Irregular working hours

In accordance with Article 101 of the Labor Code of the Russian Federation, an irregular working day is a special mode of work, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.

Thus, the fact that the employee’s working day is irregular should be fixed in the labor or collective agreement, and not be recited by the employer at will, as is often the case. Only in this case, the employee can count on the compensation provided for such employees, namely extra days to paid leave, which must be at least three (Article 119 of the Labor Code of the Russian Federation). The duration of the additional mini-vacation must also be established by the regulations at the enterprise.

Where to apply?

To protect their labor rights employees can contact state inspection labor, the prosecutor's office or directly with a lawsuit in court. However, in order to count on a positive result, it is necessary to have a good evidence base. This may cause problems. For example, the accounting of working time, which the employer is obliged to keep, in 99 cases out of 100 is of a formal nature and does not take into account real overtime. If this is so, then it will be impossible to prove processing, the check will not reveal anything. If processing is taken into account, but not paid, then in this case you can count on compensation, for which you can go to court. It must be remembered, however, that the statute of limitations labor disputes for employees, in accordance with Article 397 of the Labor Code of the Russian Federation, is three months.

Practice shows that it is easier for an employee to refuse unpaid overtime than to force the employer to pay for them. Although they are related things. Ultimately, if all employees stop working overtime for free, then the employer will have to pay money for this work or abandon this practice. Trade unions often resort to such a form of protest as the “Italian strike”, which is also called work by the rules, when workers strictly perform their job duties without stepping back from them. This relatively harmless form of protest may be suitable for office and creative workers, who rarely organize into unions.

Someone may argue that conflict with the employer is fraught with dismissal. However, it must be understood that it is impossible to dismiss an employee for refusing both paid and unpaid work after hours or weekends. Dismissing an employee without his consent, especially if he “works strictly according to the rules”, is an extremely complicated and costly process for the employer. In most cases, it's easier to negotiate.