Forced to work after hours. Can an employer force you to work overtime? The downtime order does not indicate whether workers should be present at work sites
We often hear complaints from ordinary office workers that they have to work from dawn to dusk, and there is no gratitude from their bosses - instead, they also strive to load them with work beyond all measure. As a rule, such labor races end either in a nervous breakdown or in the dismissal of the employee at his own, true request. What should an honest worker do in such a difficult situation?
Understanding the concepts
When can an employee be required to work overtime?
In Art. 99 of the Labor Code of the Russian Federation provides a list of grounds for involving an employee in overtime work.
With the written consent of the employee
If uncompleted work leads to damage to property, no matter whose.
If failure to complete work paralyzes the work of the company.
If a no-show employee whose work cannot be interrupted is replaced
Without the employee's consent
If it is necessary to prevent a disaster, etc.
If there is a threat to the normal operation of water supply, gas supply, heating, lighting, sewerage, transport, communications systems;
If the work is required due to martial law, a natural disaster, or an emergency.
In other cases, involvement in overtime work is allowed only with the written consent of the employee and taking into account the opinion of the trade union. In the absence of the latter, only the written consent of the employee is sufficient.
The duration of such overtime work cannot exceed four hours for each employee on two consecutive days. Thus, all 10-12 hour work marathons during the work week are illegal. In addition, often the employer does not bother to obtain the employee’s written consent to engage him in overtime work. As a rule, the employer verbally informs the employee, they say, it is necessary, Vasya, it is necessary, and whoever works, eats! And “Vasi” does it right and does it until smoke pours out of his ears, and his face takes on an indefinite hue, in addition to this, a crazy look and nervous laughter. What kind of productive work can we talk about in this case? Here, like with a cornered horse, there is only one way out - shoot, that is, fire
Gingerbread from the law
There are not many of them, or rather it would be one. Art. 152 of the Labor Code of the Russian Federation prescribes payment for overtime work at one and a half times the first two hours of overtime work and at double the rate for all subsequent hours of overtime. At the request of the employee, overtime pay can be replaced by additional rest time, but not less than the overtime worked, that is, we are talking about good old time off.
Disappointing Realities
Practice, as often happens in our country, is very far from the law. In many companies, it has long been a tradition to work not eight hours, but, for example, ten. And it doesn’t matter that during these two hours you will be blown up in the minefields of “Sapper” or puzzle over “Solitaire” or “Klondike” (see), the main thing is to be in good standing with your superiors, and if you also tell your superiors twice “ ku!”, wear a bell in your nose and curtsy, then over time the master will call you his beloved wife and you can hope for a salary increase!
At the same time, employers do not consider it necessary to pay for this form of voluntary service or provide time off, otherwise the whole point of such a “gift” to the company from the employee is lost. According to the strange opinion of a number of managers, overtime work is nothing more than a manifestation of the employee’s loyalty to the company, even if this work is not urgent and can be completed during the next working day. Although Western companies, which Russian business looks up to, have long been no longer guided by the opinion: “A good employee will not leave work early.” In their opinion, an employee who works 10 or more hours a day loses productivity and sooner or later makes mistakes. A month of high results for such workers is often followed by a decline, and without the necessary rest, they begin to get sick more often. A person, as a biological object, cannot work 12 hours a day for a long time - after some time, the body simply may not be able to withstand such a load. After 8 hours of continuous work, so-called workaholics lose control and clarity of reaction - hence chronic illnesses and nervous breakdowns.
What to do
Let's make a reservation right away, no one is calling you for a revolution or a lynching of your beloved bosses. If you are satisfied with this state of affairs, it’s your choice, just don’t be surprised if the children forget your face over time and run away shouting: “Man (aunt), who are you?!”
If you are tired of exchanging your personal life for the pseudo-incentive sign “Best Employee of the Month,” then, as usual, you have several options:
Change job. In a crisis, you won’t be able to find much work, but if you want, you can find a suitable option.
Leave work on time. If you don’t have the courage to declare the end of the working day and unwillingness to work overtime, then you can come up with a lot of reasons: treatment, a summons to the investigator, activities for the child, etc.
Report where it should be. Where to go is the prosecutor's office and the labor inspectorate. How to report is described. If you report it personally, you will most likely not be allowed to work in the company, so people decide to take such a step when it comes to a conflict and before leaving they want to annoy the employer more.
Employees of most Russian companies are faced with the need to stay late at work to carry out instructions from their superiors, but this overtime is not always paid, although the Labor Code of the Russian Federation clearly regulates the procedure for payment or compensation for work performed overtime or on weekends and non-working holidays.
The legal instructions on the site will tell you what to do if your boss forces you to work more than the allotted time.
Employer market
The economic crisis, the imminent approach of which is indicated by both forecasts of authoritative experts and objective indicators, for example, falling oil prices and the depreciating ruble, will inevitably affect the labor market. If, in conditions of economic growth, there is competition between companies for good workers, who are lured with high salaries, bonuses and bonuses, and labor legislation is strictly observed, then during a crisis the situation changes radically. There is already fierce competition between specialists for a job, and those who have it are ready to do anything to keep it, including constantly working overtime. Workers are becoming more accommodating, employers are becoming bolder. This is an objective process.
However, economic difficulties do not mean that an employee should not know his rights, because it may turn out that one motivated (with reference to an article of the law) refusal of unpaid overtime work will be enough to be paid for this work next time. According to experts, employers are pushed to violate labor laws, among other things, by the tacit consent of employees. It’s good if this silence is well paid, but in most cases it is due to basic ignorance of one’s 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 work week) is called overtime. In this case, the employer’s initiative in determining overtime work is decisive. If an employee is late at the office because he does not have time to do everything on time, this is not overtime work. If the employee was asked to stay late by the boss, that’s a different 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 rate, the subsequent ones - at least double. In addition, the duration of overtime work for each employee should not exceed 4 hours for two consecutive days and 120 hours per year.
To ask an employee to stay late to work for an hour or two, the boss must also have good reasons, which are listed in the Labor Code: the shift worker did not show up for work, which is continuous; 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; the work is of a repair nature, failure to perform which threatens the enterprise with downtime.
Thus, overtime work is voluntary. In accordance with Article 99 of the Labor Code of the Russian Federation, an employer can force an employee to overwork even for double or triple pay in exceptional cases when it is necessary to prevent a disaster, restore the operation of the electricity and gas supply system, establish the functioning of the transport system, as well as in an emergency or military situation. provisions. In such cases, even the employee’s consent is not required.
Work on holidays and weekends
Employees may be required to work on holidays and weekends only with written consent. Such work is paid at least double the amount, even if the payment is piecework. In accordance with Article 153 of the Labor Code of the Russian Federation, the 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 employees, or an employment contract. This especially applies to creative workers - journalists, actors, directors, etc., for whom working on weekends is common.
As in the case of overtime work, the law establishes a list of majeure circumstances when employee consent to work on holidays and weekends is not required.
In addition, an employee may agree to single pay for work on holidays and weekends if he is subsequently given 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 enshrined in the labor or collective agreement, and not declared by the employer at will, as is often the case. Only in this case can the employee count on the compensation provided for such employees, namely additional 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 regulations at the enterprise.
Where to contact?
To protect their labor rights, workers can contact the state labor inspectorate, the prosecutor's office, or directly file a claim in court. However, to count on a positive result, you must have a good evidence base. There may be problems with this. For example, recording working hours, which the employer is required to keep, in 99 cases out of 100 is of a formal nature and does not take into account actual overtime. If this is so, then it will be impossible to prove processing; the check will not reveal anything. If overtime 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 that the statute of limitations for 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 it. Although these are interconnected things. Ultimately, if all employees stop working overtime for free, then the employer will have to pay money for this work or abandon the practice. Trade unions often resort to such a form of protest as the “Italian strike,” which is also called work according to the rules, when workers strictly fulfill their job duties without deviating a step from them. This relatively safe form of protest may be suitable for office and creative workers who rarely organize into unions.
Someone might argue that entering into conflict with an employer can lead to dismissal. However, you must understand that it is impossible to fire an employee for refusing both paid and unpaid work at odd hours or on weekends. Dismissing an employee without his consent, especially if he “works strictly according to the rules,” is an extremely difficult and costly process for the employer. In most cases it is easier to reach an agreement.
31.08.2019
Employees of most Russian companies have repeatedly faced the need to stay at the workplace after the end of the working day.
In many companies, overtime has become a permanent practice, which is quite difficult for workers to combat.
Often the employer forces people to work, presenting them with a fact: either overtime or the company will find another employee who agrees to the conditions set.
What should an employee do if he is forced to work beyond the norm or is not paid the required amount for overtime?
Is it possible to engage an employee to work overtime without consent?
If the employee agrees to off-hour work, he signs the agreement statement, in the order itself or in an additional appendix.
If the employee refuses additional work, he must also notify the manager in writing.
If an agreement between a person and a trade union is necessary, the draft decree is first 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 to carry it out.
To refuse overtime, you should collect documents proving the length of the working day:
- time sheet;
- employment contract;
- graphics;
- internal routine.
Having collected all the documents, you need to notify your superiors in writing about your refusal to work overtime. You can always count on the assistance of the labor inspectorate and the trade union.
What to do if your boss forces you to?
When management forces employees to work overtime without the employee’s consent, in order to protect their rights, it is possible to contact the state labor inspectorate, the prosecutor’s office, or immediately file a lawsuit in court.
Unions often use a form of insubordination called the “Italian strike,” which can also be called rule work, where employees strictly perform their job duties according to their job description.
This fairly safe form of protest is suitable for creative and office workers, who rarely join unions.
Someone may not agree, believing that conflict with the employer threatens dismissal. But it is necessary to understand that it is impossible to fire an employee due to refusal of both paid and unpaid work overtime or on weekends.
Dismissal without consent, especially when the employee “works strictly according to the rules,” is a very complicated and costly procedure for management. In most cases it is easier to reach an agreement.
Provided that the employee cannot prove that he is right in a trade union or court, and the employer continues to force him to work after hours, it is worth thinking about changing his workplace.
Where can I complain if they don’t pay extra for overtime?
It's fast and free!
Irina Davydova
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First, the boss forces you to work on weekends. And then he offers to work in the office on May 1... Of course, there are careerists who are ready to sacrifice their health and family. However, more often than not, employees turn into "" involuntarily.
- Another trick of employers is a contract for “unregulated working hours” that is now popular . And, despite the fact that Article 101 contains a clear definition of irregular working hours as EPISODIC involvement in work, the employer forces people to work regularly on weekends. But additional rest should be provided for occasional work! In reality, the boss takes even regular days off.
For example, when signing an employment contract, they verbally warn about “extracurricular work” . Without stipulating that according to the Law on work on weekends, the salary is twice as high, and the amount of unforeseen work is no more than 4 hours in 2 days.
Of course, the point is not only ignorance, but also the lack of such experience. If when reading the norms of the Labor Code they do not raise questions, then in practice difficulties arise.
So, specific examples from life and their solutions.
Can they be forced to work on weekends?
Nobody can force you, because this is prohibited by Labor Law . If you agree with the decision of your superiors, then they should wait for your written consent (Article 113 of the Labor Code of the Russian Federation) .
Without the employee’s consent, he must work on the following days:
- to eliminate or prevent accidents at work threatening the life and property of people;
- in emergency conditions(state of emergency) or during an emergency (natural disasters).
By the way, you have the right not to work, despite the above circumstances. disabled people, pregnant women and women with children under 3 years of age .
Read also: 
How to calculate legal payment for work on weekends and holidays?
As stated in Article 153 of the Labor Code of the Russian Federation: overtime work on a weekend must be paid at double rate - both piece workers and workers on a daily or hourly rate.
Employees with a monthly salary are entitled to standard rate of salary , if they worked on a day off without exceeding the monthly norm.
And if you revised the monthly norm, then at double daily or hourly rate for after-hours.
- For example: If a worker receives 100 rubles for one product, then on weekends he should receive 200 rubles per part.
- For example: If an employee receives 100 rubles/hour, then on days off his work should be paid at a rate of 200 rubles/hour.
- For example: If a person receives 20 thousand rubles/month and worked 6 hours on a day off, then the payment for that day should be calculated using the following algorithm: divide the salary by the usual number of working hours per month (let’s say 168 hours) and multiply the result by 6 (the number extracurricular hours) and by 2. Thus, 20,000: 168*6*2= 1428 rubles.
How to protect your rights when your boss requires you to work on weekends?
- Find out the phone number and coordinates of the regional labor inspectorate. Call or come in person for a consultation.
- Correctly formulate your complaints– where your rights were violated, and what changes you want to achieve.
- Attach supporting documents to the complaint violations of your rights (statutes, employment contracts, orders, internal regulations).
- Send this package of documents by letter or bring it in person. When meeting in person, make sure the inspector has dated and signed your copy. Now all that remains is to wait for the complaint to be reviewed and verified within a month.
- At the end of the inspection, the inspector will draw up a report and will give your employer an order to eliminate the identified violations of the Labor Code. Your boss will have to report to the inspector in writing about the correction of violations within the period specified in the order.
Is it worth complaining if you are forced to work on weekends?
It makes sense to complain in 3 cases:
- You do not want to quit, but the working conditions do not suit you . Then, when contacting the labor inspectorate, emphasize that you do not want to advertise your data. In this case, during the verification, the documents of all employees will be raised, which will not allow you to be identified as the author.
- Are you planning to quit because. Then you can act openly - do not be afraid to defend yourself. You have nothing to lose, so you can defend your rights without risking your work.
- You were fired, but were not paid or did not receive additional wages. In this case, you must contact the tax office and get your money back.
The Labor Inspectorate has great powers. For example, she may suspend the company's operations or go to court to liquidate the company. Therefore, you should not think about the boss’s “big” connections and the shortcomings of our legal system. After completing the above simple steps, You can protect yourself and help your colleagues .
"Personnel issue", 2013, N 3
ATTRACTION TO WORK DURING NON-WORKING HOURS
Business often dictates terms. Sometimes you have to bring in additional employees, outside of regular hours, and there’s nothing you can do about it. We'll talk about how to do this below.
Night work
There are enterprises where the technological process should not be interrupted for a minute, and they work around the clock. For example, bakeries or metallurgical plants. Employees of such enterprises regularly go to work at night.
Night time is considered to be the time from 10 pm to 6 am (Article 96 of the Labor Code of the Russian Federation).
Night work is known to have adverse effects on human health. Therefore, such work is subject to restrictions. All of them are given in the previously mentioned article. 96 of the Labor Code of the Russian Federation.
According to Art. 96 of the Labor Code of the Russian Federation, the duration of work (shift) at night is reduced by one hour without further work. For employees who have a reduced working time, as well as for employees hired specifically to work at night, unless otherwise provided by the collective agreement, the duration of work (shift) is not reduced. The maximum working time for workers working night shifts during the week cannot exceed 35 hours.
The duration of work at night is equal to the duration during the day in cases where this is necessary due to working conditions, as well as for shift work with a six-day work week with one day off. The list of specified works may be determined by a collective agreement or local regulations.
Certain categories of citizens are not allowed to work at night, these include: pregnant women; workers under the age of 18, with the exception of persons involved in the creation and (or) performance of artistic works; and other categories of employees in accordance with this Code and other federal laws.
Women with children under three years of age, disabled people, workers with disabled children, as well as workers caring for sick members of their families in accordance with a medical report, mothers and fathers raising children under the age of five years of age, as well as guardians of children of this age, may be involved in night work only with their written consent and provided that such work is not prohibited for them for health reasons in accordance with a medical certificate. At the same time, these employees must be informed in writing against receipt of their right to refuse to work at night. Refusal of workers in this category to work at night cannot be considered a violation of labor duties.
The inadmissibility of engaging these categories of workers to work at night also applies to those cases where only part of the shift occurs at night (clause 7 of the Resolution of the Plenum of the Supreme Court of the RSFSR of December 25, 1990 No. 6 “On some issues arising when courts apply legislation regulating women's work").
Also, disabled people can be involved in night work with their written consent, if such work is not prohibited for them for health reasons in accordance with a medical report (in the recent past, disabled people could not be involved in night work even with their consent).
In addition to the persons mentioned in Art. 96 of the Labor Code of the Russian Federation, the following are not allowed to work at night:
1) as a general rule - women (Article 259 of the Labor Code of the Russian Federation);
2) employees sick with tuberculosis, if there is a corresponding conclusion from the CEC;
3) single mothers raising children in the absence of 24-hour preschool institutions;
The night work procedure for creative workers of cinematography organizations, television and video filming groups, theaters, theatrical and concert organizations, circuses, the media and professional athletes in accordance with the lists of categories of these workers approved by the Government of the Russian Federation may be determined by a collective agreement, local regulatory act or agreement of the parties to the employment contract.
Each hour of work at night is paid at a higher rate compared to the same work under normal conditions (Article 154 of the Labor Code of the Russian Federation), but not lower than the amounts established by laws and other regulatory legal acts. The specific amounts of increased wages for night work are established by a collective agreement, a local regulatory act adopted taking into account the opinion of the representative body of workers, and an employment contract. Previously, the Resolution of the Central Committee of the CPSU, the Council of Ministers of the USSR and the All-Russian Central Council of Trade Unions of February 12, 1987 N 194 “On the transition of associations, enterprises and organizations of industry and other sectors of the national economy to a multi-shift operating mode in order to increase production efficiency” (which is no longer in effect) provided additional payment for each hour of work at night for enterprises with multi-shift work in the amount of 40% of the employee’s rate or salary. Now prices are set exclusively by local regulations.
Payment for labor in case of failure to comply with labor standards (job responsibilities) is made for the time actually worked or work performed, but not lower than the average salary of the employee calculated for the same period of time or for the work performed, and depends on the employee’s guilt and the degree of product readiness.
If failure to comply with labor standards (job duties) is due to reasons beyond the control of the employer and employee, the employee retains at least 2/3 of the tariff rate (salary).
In case of failure to comply with labor standards (job duties) due to the fault of the employee, payment of the standardized part of the salary is made in accordance with the volume of work performed (Article 155 of the Labor Code of the Russian Federation).
Products that turn out to be defective (Article 156 of the Labor Code of the Russian Federation) are paid on an equal basis with suitable products if the defect occurred through no fault of the employee.
Complete defects due to the fault of the employee are not subject to payment, and partial defects due to the fault of the employee are paid at reduced rates depending on the degree of suitability of the product.
Payment for downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature) is carried out depending on which party is to blame for the downtime. Downtime caused by the employer is paid in the amount of at least 2/3 of the employee’s average salary. The condition for payment in this case is a written warning to the employee about the start of downtime.
Downtime due to reasons beyond the control of the employer and employee, if the employee warned the employer in writing about the start of downtime, is paid in the amount of at least 2/3 of the tariff rate (salary). Downtime caused by the employee is not paid (Article 157 of the Labor Code of the Russian Federation).
A collective or labor agreement may establish the specifics of remuneration during the development of new industries (products) - maintaining the employee’s previous salary for this period (Article 158 of the Labor Code of the Russian Federation).
The Labor Code only talks about increased pay for night shift workers. At the same time, it is possible to include in the text of the collective agreement a condition on increased wages for employees working on the evening shift.
In this case, you can focus on clause 9 of the Resolution of the Central Committee of the CPSU, the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions N 194, which was already discussed earlier. It says that the amount of additional payments for work on the evening shift is 20% of the hourly tariff rate (official salary) for each hour of work, and for the night shift - 40% for each hour of work.
The employer must make additional payments for night work to employees (for example, gas station operators) who have established a summarized recording of working hours and a shift work schedule (for example, work in the “every other day” mode), since from Art. 154 of the Labor Code of the Russian Federation it follows that the increased amount of payment for each hour of work at night does not depend on the working hours and rest hours. The introduction of summarized working time recording or shift work in organizations does not affect the payment for night work.
In relation to certain complexes of the national economy, industry tariff agreements are in force, establishing the amount of additional payments (allowances) for work at night or night shifts (for example, the Industry Agreement on the timber industry complex of the Russian Federation for 2003 - 2005, registered by the Ministry of Labor of Russia on December 23, 2002 N 8671-VYA, Industry tariff agreement on road transport for 2002 - 2004, registered by the Russian Ministry of Labor on March 22, 2002 N 1641-VYA, Industry tariff agreement on the chemical, microbiological complex, registered by the Russian Ministry of Labor on February 15, 2002 N 892-VYA ).
The Labor Code of the Russian Federation determines what the working hours can be. Each enterprise determines when the working day begins and when it ends. However, sometimes emergency circumstances arise in which the administration is forced to involve an employee in work after hours or even on holidays and weekends.
Work on weekends and holidays
Article 111 of the Labor Code of the Russian Federation establishes the rule according to which all employees must be provided with days off (weekly uninterrupted rest). Differences in the types of working week (5-day, 6-day) predetermine differences in the number of days off provided to employees. With a 5-day work week, employees are provided with two days off per week, with a 6-day work week - one day off.
The general day off is Sunday. The second day off in a 5-day working week is established by a collective agreement or the internal labor regulations of the organization. Both days off are usually provided in a row. In a 5-day work week, the second day off may precede Sunday (Saturday) or follow it (Monday).
Due to production, technical and organizational conditions, a long-term (on weekends) suspension of work may be impossible. In such organizations, in accordance with the internal labor regulations, days off are provided to employees on different days of the week, alternately to each group of employees.
Based on the internal labor regulations, this issue is resolved during specific periods of time (within the accounting period) by work schedules (shifts).
Such a norm allows us to ensure the timely provision of rest days to all employees of the organization. The above procedure should not be confused with working conditions in organizations where work must be carried out on a general day off due to the need to serve the population (shops, consumer service enterprises, theaters, museums, etc.). Weekends in such organizations are used weekly on other days of the week and are established by internal labor regulations. A day off is provided simultaneously to all employees on a certain day of the week that does not coincide with the general day of rest.
In the case of donating blood and its components during the period of annual paid leave, on a day off or a non-working holiday, the employee is given another day of rest at his request.
If, by agreement with the employer, the employee went to work on the day of donating blood and its components (with the exception of heavy work and work with harmful and (or) dangerous working conditions, when the employee’s going to work on this day is impossible), he is provided with his If you wish, another day of rest.
After each day of donating blood and its components, the employee is given an additional day of rest. The specified day of rest, at the request of the employee, can be added to the annual paid leave or used at other times during the calendar year after the day of donation of blood and its components (Article 186 of the Labor Code of the Russian Federation).
As mentioned above, the list of non-working holidays is given in Art. 112 of the Labor Code of the Russian Federation. Non-working holidays in the Russian Federation are:
If a day off coincides with a non-working holiday, the day off is transferred to the next working day after the holiday.
In Art. 112 of the Labor Code of the Russian Federation, an attempt was made to resolve the problem with the payment of piece workers on non-working holidays. It proposes to establish that employees, with the exception of employees receiving a salary (official salary), are paid additional remuneration for non-working holidays on which they were not involved in work. The amount and procedure for payment of the specified remuneration are determined by the collective agreement, agreements, local regulations adopted taking into account the opinion of the elected body of the primary trade union organization, and an employment contract. Amounts of expenses for the payment of additional remuneration for non-working holidays are included in the full amount of labor costs.
In addition, in Art. 120 of the Labor Code of the Russian Federation in this edition excludes the provision that non-working holidays falling during the vacation period are not included in the number of calendar days of vacation and are not paid. This eliminates the problem of paying non-working holidays to pieceworkers, for whom these days fall during the vacation period. Also in Art. 112 of the Labor Code of the Russian Federation includes a norm that will provide additional rules for the transfer of days off by the Government of the Russian Federation. In particular, it is proposed to establish that the regulatory legal act of the Government of the Russian Federation on the transfer of days off to other days in the next calendar year is subject to official publication no later than a month before the start of the corresponding calendar year. The adoption of normative legal acts on the transfer of days off to other days during the calendar year is permitted subject to the official publication of these acts no later than two months before the calendar date of the established day off.
Emergency repair work is work that cannot be planned in advance and is unexpected. Urgent loading and unloading operations are carried out on holidays in order to free up warehouse space, as well as to prevent or eliminate idle time of rolling stock or accumulation of cargo at points of departure and destination.
In continuously operating organizations, as well as in the case of cumulative accounting of working time, work on holidays is included in the monthly standard working time (clause 1 of the Explanation of the State Committee for Labor of the USSR and the All-Russian Central Council of Trade Unions of August 8, 1966 N 13/P-21 “On compensation for work on holidays days" (approved by Resolution of the State Committee for Labor and the Presidium of the All-Union Central Council of Trade Unions dated August 8, 1966 N 465/P-21)). They are still used to the extent that they do not contradict the Labor Code of the Russian Federation.
Article 167 of the Labor Code of the Russian Federation establishes that when an employee is sent on a business trip, he is guaranteed the preservation of average earnings. At the same time, the average earnings during the time the employee is on a business trip are maintained for all working days of the week according to the schedule established at the place of permanent work (clause 9 of the Instructions on business trips within the USSR, issued by the Ministry of Finance of the USSR, the State Committee for Labor of the USSR and the All-Russian Central Council of Trade Unions dated April 7, 1988. N 62, applies to the extent that does not contradict the Labor Code of the Russian Federation).
In accordance with the assignment for a business trip, specific deadlines for its completion are established. The posted worker himself plans the execution of work, taking into account the work schedule, working hours and rest time of the organization to which he is posted.
According to specialists from the Russian Ministry of Labor, work on weekends performed by posted workers at the place of business trip on their initiative is not subject to payment. This follows from the very nature of a business trip as sending an employee to carry out a specific assignment outside the place of his permanent work, where accounting and control over it by the administration is difficult. Workers on business trips use their weekly rest days at the location of the business trip, rather than upon returning from it.
In Art. 113 of the Labor Code of the Russian Federation contains the procedure and grounds for hiring people to work on weekends and non-working holidays. Two categories of grounds have been established when an employee can be required to work on a day off or a non-working holiday. The first category includes the following circumstances:
1) preventing a catastrophe, industrial accident or eliminating the consequences of a catastrophe, industrial accident or natural disaster;
2) prevention of accidents, destruction or damage to the employer’s property, state or municipal property;
3) 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 posing endanger the life or normal living conditions of the entire population or part of it.
In these cases, the involvement of workers in work is permitted without their consent.
With the written consent of employees, it is allowed to involve them in work on weekends and non-working holidays if it is necessary to perform unforeseen work, on the urgent completion of which the normal work of the organization as a whole or its individual structural divisions or an individual entrepreneur depends in the future.
In other cases, involvement in work on weekends and non-working holidays is possible with the consent of the employee and taking into account the opinion of the primary trade union organization.
The requirement to inform people with disabilities in writing, as well as women with children under three years of age, of their right to refuse to work on days off and non-working holidays is also somewhat modified. According to the proposed wording, the employer will be obliged to familiarize these employees “against signature.”
Working on weekends and non-working holidays is prohibited for pregnant women and workers under the age of 18 (Articles 259, 268 of the Labor Code of the Russian Federation).
In accordance with Art. 153 of the Labor Code of the Russian Federation, work on a non-working holiday is paid at least double the amount:
1) piece workers - at least at double piece rates;
2) employees whose work is paid at daily and hourly rates - in the amount of at least double the daily or hourly rate.
Thus, when calculating wages, it is taken into account at least twice as much for the time actually worked on a holiday.
For employees receiving a monthly salary, work on a non-working holiday is paid in the amount of no less than a single daily or hourly rate in addition to the salary, if work on a weekend and a non-working holiday was carried out within the limits of the monthly working time standard, and in an amount of at least double the hourly or daily rate above the salary if the work was performed in excess of the monthly norm.
The collective agreement may provide for higher wages for work on a holiday.
To ensure order and, if necessary, promptly resolve emerging issues on holidays and sometimes on weekends, the employer appoints responsible duty officers.
Such duty differs from work called duty, provided for by work schedules (shifts), as well as from duty (and essentially also work), for which workers are specially hired (doctors on duty, watchmen, mechanics on duty, etc.). In contrast to duty, here workers perform their main work under an employment contract with an appropriate work and rest schedule.
Duty is the presence of an employee in an organization by order of the employer before or after the end of the working day, on weekends or holidays as a person responsible for order and for the prompt resolution of urgent issues that arise that are not related to the production activities of the organization.
A special Resolution of the All-Union Central Council of Trade Unions of April 2, 1954 was adopted on duty. There is no normative legal act on duty; They are not mentioned in the Labor Code of the Russian Federation either. In this regard (and since) the rules on duty, provided for by the said Resolution of the All-Russian Central Council of Trade Unions, do not contradict the Labor Code of the Russian Federation, they should be guided in practice.
Employees are allowed to go on duty no more than once a month.
For duty on weekends and holidays, all employees are provided with time off for the next 10 days of the same duration as the duty.
In the case of being called to duty before or after the end of the working day, attendance at work is shifted accordingly so that the duration of duty or work together with duty does not exceed the established duration of the working day.
Hours of duty in excess of the time of daily work according to the schedule (schedule) must be compensated by time off in the same way as compensation of duty time on weekends and holidays.
According to established practice, employees who cannot be involved in overtime work are not assigned to duty.
Working beyond the established limit
working hours
Establishing a standard working time does not, however, exclude cases of performing work in excess of this standard. In accordance with Art. 97 of the Labor Code of the Russian Federation, the employer has the right, in the manner established by the Labor Code of the Russian Federation, to involve an employee in work beyond the working hours established for this employee in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, a collective agreement, agreements, local regulations, employment contracts:
1) for overtime work (Article 99 of the Labor Code of the Russian Federation);
2) if the employee works on irregular working hours (Article 101 of the Labor Code of the Russian Federation).
Part-time work is carried out not at the initiative of the employee, but by agreement of the parties. This is the performance by an employee of other regular paid work under the terms of an employment contract in his free time from his main job (Article 282 of the Labor Code of the Russian Federation). Part-time work is performed within the framework of the working hours established under this employment contract (i.e. normal).
Part-time work is regulated by Art. Art. 60.1 and 60.2 of the Labor Code of the Russian Federation, as well as Art. Art. 282 - 288 of the Labor Code of the Russian Federation. In accordance with Art. 282 part-time work - an employee performing other regular paid work under the terms of an employment contract in his free time from his main job. Concluding employment contracts for part-time work is permitted with an unlimited number of employers, unless otherwise provided by federal law.
An employee has the right to enter into employment contracts to perform other regular paid work in his free time from his main job with the same employer (internal part-time job) and (or) with another employer (external part-time job) (Article 60.1 of the Labor Code of the Russian Federation). With the written consent of the employee, he may be entrusted with performing, during the established duration of the working day (shift), along with the work specified in the employment contract, additional work in a different or the same profession (position) for additional pay (Article 60.2 of the Labor Code of the Russian Federation). Thus, in accordance with Part 1 of Art. 60.2 of the Labor Code of the Russian Federation, internal part-time work is allowed to perform work that does not coincide with that for which the main work is performed for a given employer. For certain categories of workers, the Labor Code of the Russian Federation establishes exceptions, for example, for teaching staff who are allowed to work part-time, including in a similar position or specialty (Article 333 of the Labor Code of the Russian Federation). Internal part-time work is not permitted in cases where reduced working hours are established, with the exception of cases provided for by the Labor Code of the Russian Federation and other federal laws.
An employee has the right to enter into an employment contract with another employer to work on an external part-time basis, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. For example, according to Art. 276 of the Labor Code of the Russian Federation, the head of an organization has the right to work part-time for another employer only with the permission of the authorized body of the legal entity or the owner of the organization’s property or a person (body) authorized by the owner (Article 276 of the Labor Code of the Russian Federation).
In Art. 97 clarifies that the concept of “work outside the established working hours” includes not only overtime work, but also work with irregular working hours (Article 101 of the Labor Code of the Russian Federation).
Work outside normal working hours cannot exceed four hours per day for part-time workers; four hours for two consecutive days and 120 hours per year for overtime workers.
The ban on part-time work is established for:
1) persons under the age of 18;
2) those working in hard work, work with harmful and (or) dangerous working conditions, if the main work is associated with the same conditions, as well as in other cases established by federal laws;
3) members of the Board of Directors of the Bank of Russia in accordance with Art. 19 of the Federal Law of July 10, 2002 N 86-FZ "On the Central Bank of the Russian Federation (Bank of Russia)". They cannot be deputies of the State Duma and members of the Federation Council, deputies of legislative (representative) bodies of constituent entities of the Russian Federation, deputies of local government bodies, civil servants, as well as members of the Government of the Russian Federation;
4) members of the Government of the Russian Federation (Article 11 of the Federal Constitutional Law of December 17, 1997 N 2-FKZ “On the Government of the Russian Federation”;
5) civil servants in accordance with Art. 17 Federal Law of July 27, 2004 N 79-FZ “On the Civil Service of the Russian Federation”;
6) prosecutors (Article 4 of the Federal Law as amended on January 17, 1992 N 2202-1 “On the Prosecutor’s Office of the Russian Federation”);
7) judges of courts of all levels: from the Constitutional Court of the Russian Federation to justices of the peace (Article 3 of the Law of the Russian Federation of June 26, 1992 N 3132-1 “On the status of judges in the Russian Federation”).
Remuneration for persons working part-time is made in proportion to the time worked, depending on output or on other conditions determined by the employment contract.
When setting standard assignments for persons working part-time with time-based wages, wages are paid based on the final results for the amount of work actually completed.
Persons working part-time in areas where regional coefficients and wage allowances have been established are paid taking into account these coefficients and allowances.
Features of part-time work for certain categories of workers (teaching, medical and pharmaceutical workers, cultural workers) are determined in the manner established by the Government of the Russian Federation.
Thus, Resolution of the Ministry of Labor of Russia of June 30, 2003 N 41 “On the peculiarities of part-time work for teaching, medical, pharmaceutical workers and cultural workers” (hereinafter referred to as Resolution of the Ministry of Labor of Russia N 41) establishes the features of part-time work for these categories.
Quite often, doctors have to work part-time.
Moreover, according to paragraph 2 of Resolution of the Ministry of Labor of Russia No. 41, not every such job is considered part-time.
So, they are not part-time jobs, in particular:
1) conducting a medical examination with a one-time payment;
2) provision of consulting by highly qualified specialists in an amount of no more than 300 hours per year;
3) work without holding a full-time position in the same institution or another organization, including duty in excess of the monthly working hours according to the schedule.
Article 284 of the Labor Code of the Russian Federation limits the maximum duration of work for both external and internal part-time work. Thus, an employee cannot work part-time for more than 4 hours a day and 16 hours a week. However, for medical and pharmaceutical workers, a different duration of part-time work is established. It is given in paragraphs. "b" clause 1 of Resolution of the Ministry of Labor of Russia No. 41.
According to Federal Law of June 30, 2006 N 90-FZ, Art. 98 is excluded from the section “Working time”, and the new art. 60.1, which is devoted to general provisions on part-time work, is placed in the section “Employment contract”.
In Art. 284 of the Labor Code of the Russian Federation, the norm on limiting the duration of part-time work has been changed. Instead of limiting the time of part-time work to 16 hours per week, it is established that the duration of part-time work during a month should not exceed half the monthly standard of working time established for the corresponding category of workers. On days when the employee is free from performing work duties at his main place of work, he can work part-time full time (shift).
Previously, there was such a concept as “internal part-time work”, and Art. Art. 98 and 99 of the Labor Code of the Russian Federation explained that if you formalize an employment relationship, that is, additional internal part-time work, then you do not have to pay an increased amount. That is, you work over 40 hours, and you are paid according to the contract, and not at one and a half or double the rate as for overtime work.
Overtime work is work performed by an employee at the initiative of the employer outside the established working hours, daily work (shift), as well as work in excess of the normal number of working hours during the accounting period.
When recording working hours by the day, work beyond the established duration of the working day is considered overtime.
In the case of cumulative accounting, overtime will be considered work in excess of the established duration of the work shift.
Usually, an order is issued regarding the performance of overtime work, which stipulates the reasons why it is necessary and the categories of workers involved in the work. However, if such an order was not issued, but there was a verbal order from one of the administration representatives, then the work is considered overtime.
Overtime work is recognized in practice even when it was carried out not only with the knowledge of the employer, but also of the immediate supervisor of the work (foreman, site manager, etc.). However, in all cases, involvement in overtime work is possible only with the written consent of the employee.
Work is considered overtime regardless of whether it was part of the employee’s duties or not.
Overtime work is not considered to be work in which the actual duration of daily work on certain days may not coincide with the duration of the scheduled shift.
Overtime work beyond the established duration of the working day is not recognized when working standard hours with a flexible work schedule.
Work beyond the stipulated working hours of employees with irregular working hours, if it is compensated by additional leave of more than 28 calendar days, is not considered overtime.
Overtime work during vacation hours without pay is not considered, as well as work performed part-time (in excess of the established duration of working hours), work performed by an employee beyond the time stipulated by the employment contract, but within the established duration of the working day (shift), working part-time (Resolution of the Plenum of the Supreme Court of November 24, 1978 No. 10 “On the application by courts of legislation regulating the remuneration of workers and employees”).
Work in the order of combining professions (positions) does not apply to overtime (Article 151 of the Labor Code of the Russian Federation).
Work under civil law contracts (for example, assignments, paid services, contracts, etc.), carried out in free time from work, does not apply to overtime.
Involvement in overtime work is carried out by the employer with the written consent of the employee and does not require permission from the representative body of employees in the following cases established by Art. 99 of the Labor Code of the Russian Federation:
1) if necessary, perform (finish) work that has begun, which, due to an unforeseen delay due to technical production conditions, could not be performed (finished) during the working hours established for the employee, if failure to perform (non-complete) this work may lead to damage or destruction of property the employer (including the property of third parties located at the employer, if the employer is responsible for the safety of this property), state or municipal property, or create a threat to the life and health of people;
2) when carrying out temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the cessation of work for a significant number of workers;
3) to continue work if the replacement employee fails to appear, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift worker with another employee.
An employer’s involvement of an employee in overtime work without his consent is permitted in the following cases:
1) when carrying out work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
2) when carrying out socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of water supply, gas supply, heating, lighting, sewerage, transport, and communications systems;
3) when performing 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, threatening the life or normal living conditions of the entire population or part of it.
In other cases, involvement in overtime work is permitted with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.
Pregnant women, workers under the age of 18, and other categories of workers are not allowed to work overtime in accordance with this Code and other federal laws. Involvement of disabled people and women with children under three years of age in overtime work is allowed only with their written consent and provided that this is not prohibited for them due to health reasons in accordance with a medical report issued in the manner established by federal laws and other regulations legal acts of the Russian Federation. At the same time, disabled people and women with children under three years of age must be informed of their right to refuse overtime work upon signature.
The duration of overtime work should not exceed 4 hours for each employee for two consecutive days and 120 hours per year.
The employer is required to ensure that each employee's overtime hours are accurately recorded.
In other cases, in addition to those specified in Art. 99 of the Labor Code of the Russian Federation, involvement in overtime work is allowed in addition to the written consent of the employee, taking into account the opinion of the representative body of employees. That is, the Labor Code of the Russian Federation establishes a double guarantee against the unreasonable involvement of workers in overtime work.
The procedure for taking into account the opinion of the elected trade union body when engaging in overtime work is regulated by Art. 372 of the Labor Code of the Russian Federation.
For a certain category of workers, there is a direct ban on being involved in overtime work.
Pregnant women, workers under 18 years of age, and other categories of workers are not allowed to work overtime in accordance with federal law. Involving disabled people and women with children under 3 years of age in overtime work is permitted with their written consent and provided that such work is not prohibited for them for medical reasons. At the same time, disabled people and women with children under 3 years of age must be informed in writing of their right to refuse overtime work. These guarantees also apply to employees with disabled children under the age of 18; workers caring for sick members of their families in accordance with a medical report (Part 2 of Article 259 of the Labor Code of the Russian Federation); fathers raising children of the corresponding age without a mother, and guardians (trustees) of minors (Article 264 of the Labor Code of the Russian Federation).
Very often, overtime work is confused with the so-called irregular working hours. The latter is a condition of an employment contract concluded with certain categories of workers (usually managers, specialists) and consists in the fact that on certain days, if there is a production need, these workers can be involved in work beyond the working day (shift).
For each individual employee (and not on average for all persons involved in overtime work, not for the organization as a whole), overtime work cannot last more than 120 hours per year and 4 hours for two days in a row.
In some cases, certain regulations allow higher overtime limits. This applies, for example, to employees of railway transport, metro, some categories of drivers, forest industry workers, etc. In these cases, the rules of special legal acts apply.
So, for example, in paragraph 5 of the Regulations on the peculiarities of working time and rest time for communication workers dated September 8, 2003 N 112 (approved by Order of the Ministry of Communications of Russia dated September 8, 2003 N 112) it is stated that the use of overtime work is allowed in cases provided for in Art. 99 of the Labor Code of the Russian Federation, as well as in the following exceptional cases:
1) when carrying out urgent work to eliminate accidents on communication lines and station equipment;
2) when carrying out work on the transportation and delivery of mail and periodicals in cases of delay of railway, air, sea, river and road transport or untimely submission of periodicals by publishing houses;
3) when processing increased telephone, telegraph and postal exchanges on the eve of holidays (January 1, 2 and 7, February 23, March 8, May 1, 2 and 9, June 12, November 7 and December 12);
4) when processing orders for periodicals during the subscription campaign;
5) in case of unscheduled delivery of pensions.
Involvement in overtime work in these exceptional cases is permitted with the written consent of the employee and taking into account the opinion of the elected trade union body of the organization.
The Labor Code of the Russian Federation provides for a special procedure for paying overtime work.
Previously, overtime was considered work beyond normal working hours. There are a sufficient number of categories of workers who worked shorter working hours, and for them the concept of “overtime” did not exist. These include all medical and teaching workers - they did not receive additional pay for overtime work. According to the current version of the Labor Code of the Russian Federation, overtime work of these categories of workers must be paid.
It must be remembered that the time of part-time work for doctors is also regulated by Decree of the Government of the Russian Federation of November 12, 2002 N 813 “On the duration of part-time work in health care organizations for medical workers living and working in rural areas and in urban settlements.” According to this Resolution, doctors who live and work in rural areas and urban settlements can work part-time for 8 hours a day and 39 hours a week.
As with medical workers, for teachers, part-time work should not exceed half of the monthly working hours, calculated based on the established length of the working week. And for teaching staff (including trainers, teachers, trainers), whose half of the monthly working time for their main job is less than 16 hours per week - 16 hours of work per week.
But in addition to part-time work, a teacher can, without restrictions, perform:
1) literary work (for example, editing, translation and reviewing works, scientific and creative work without holding a full-time position);
2) teaching work with an hourly wage of no more than 300 hours per year;
3) consulting in institutions in the amount of no more than 300 hours per year;
4) supervision of graduate students and doctoral students, head of the department, management of the faculty (if additional payment is provided for this work);
5) teaching work in the same educational institution with additional pay;
6) work without holding a full-time position in the same institution or another organization (for example, managing offices, laboratories and departments, leading subject and cycle commissions, supervising student internships);
7) work in excess of the established norm of hours of teaching work for the salary rate of teaching staff;
8) organizing and conducting excursions with hourly or piecework wages without holding a full-time position.
The list of these types of work is given in paragraph 2 of Resolution of the Ministry of Labor of Russia No. 41. The performance of such work is not considered as part-time work, therefore there is no need to conclude an agreement with the teacher. With the consent of the employer, highly qualified teachers can work part-time in institutions for advanced training and retraining during regular working hours.
Article 152 of the Labor Code of the Russian Federation regulates the issue of remuneration for workers involved in overtime work in the prescribed manner. Applying the rules of Art. 152 of the Labor Code of the Russian Federation, it should be noted that currently:
1) differences in remuneration for workers involved in overtime work have been eliminated, depending on whether the employee works on the basis of a time-based wage system or works on a piecework basis;
2) specific amounts of remuneration for overtime work can be determined in a collective agreement or in an employment contract.
In all cases, for the first 2 hours of overtime work, the employee is now paid no less than one and a half times the amount, and for subsequent hours - no less than double the amount. In other words, the rigidly centrally established upper limits of surcharges for overtime work have been abolished. You cannot pay less than the limits established in Art. 152 of the Labor Code of the Russian Federation, but you can pay more.
Federal Law No. 90-FZ excluded from Art. 152 of the Labor Code of the Russian Federation, part 2, which regulated the procedure for remuneration of part-time workers. In addition, it is now possible not only to provide time off for overtime work, but also to add days off to annual leave, releasing the employee from work on other days for the number of hours for which the employee was involved in overtime work.
