Is it worth agreeing to constant processing? Features of attraction to overtime work of individual employees. Who is not allowed to work overtime

Post by blog editor Ilya Varlamov, who complained about constant overwork and lack of vacation, as well as the answer of the blogger himself in the spirit of “whoever doesn’t like it, let him leave.” And although the law provides for overtime for people with a normalized schedule only in emergency cases, obliging the employer to pay overtime, things are exactly the same in many Russian offices. In the process of preparing the next important project, employees sit up late "for the idea." With the help of The Village experts, I figured out why this is happening and how to deal with the need to stay up late at work.

Is it worth agreeing to processing

Anastasia Knyazeva

Analyst, personnel holding Ankor

It's worth agreeing to work overtime if the time spent means less to you than acquiring new skills, favoring your superiors, or solving a problem in the shortest possible time. Of course, overtime is not a prerequisite for success. However, it is worth sacrificing free time if you risk missing deadlines, the violation of which entails large costs.

It is worth remembering that compensation for overtime work depends on what mode of work is provided for in your employment contract. If the work schedule is defined in the contract as irregular, the time worked in excess of the norm is compensated by the presence of at least three additional days to the annual paid leave. If the working day is normalized, then according to the Labor Code, overtime work is paid as follows: the first two hours - at least one and a half times, the next hours - at least twice the size. At the same time, in order to involve you in overtime work, the manager must obtain your written consent. However, there are situations when such consent is not needed - in particular, when eliminating the consequences of an industrial accident or natural disaster. An employee may not work more than four hours of overtime on two consecutive days.

I note that, protecting your rights, you should not be too categorical. An employee who takes a boss's request to work overtime as an excuse to start legal proceedings risks damaging their relationship. It is better to show flexibility and reach a compromise outside the walls of the court.

What the law says and how it is used

Maximilian Grishin

Lawyer of the Moscow office of the international law firm Ilyashev & Partners

Overtime work is regulated by Article 99 of the Labor Code. It says that processing is possible only with the written consent of the employee and only in certain situations. For example, an employer may force you to work overtime when you urgently need to complete work that has not been completed due to some unforeseen circumstances (if the damage from non-performance is greater than the overtime payment). Also, an employee can be called during non-working hours, when it is necessary to urgently repair equipment, without which the entire production will stop. Without the consent of the employee, overtime work is possible only in emergency situations - in the event of major accidents, disasters, and so on.

Overtime is paid only if the company has a set working day. Any violation of this duration or non-payment of processing is a reason for proceedings with the labor inspectorate. Therefore, now an irregular working day is very often prescribed in an employment contract or internal documents of a company. The law does not provide for restrictions on irregularity, the schedule can be at least 24/7.

Chermen Dzotov

founder of the legal company "Dzotov and partners"

An employment contract with an irregular working day is also inconvenient for an employer. He imposes on him many additional obligations (the need to issue a written order, a limited list of positions, etc.). Therefore, more and more often a civil law contract is concluded. It is convenient in that it prescribes only the specific goal required to achieve it. How this will be done is not specified separately. The signatory of such an agreement will be deprived of any social and labor guarantees. The agreement will be drawn up in such a way that although there will be no direct indication of an irregular working day, all of the named conditions will contribute to just such a mode of labor activity. An example is the work of a taxi driver. If you conclude a civil law contract with him for the provision of transportation services, then the performance of these services for the most part will be irregular.

A citizen who agrees to work irregularly can be given the following advice. Firstly, after all, to conclude an employment, and not a civil law contract. In this case, it will be more protected. Secondly, the contract with the conditions of overtime work is essentially similar. But the main plus of overtime work is that such work is paid extra. Whereas for irregularity, only additional leave should be provided without any separate payments.

How it actually happens

Alexander Gulko

owner of the Gulko Judicial Bureau

I was approached by an employee of a well-known Moscow developer with a request to help deal with the employer on a legal level. The fact is that the management organized the work in such a way that its processing daily ranges from one and a half to four hours. The woman is absolutely exhausted, because after she leaves the office at nine or ten in the evening, she has another hour and a half to get home. In such an incredible mode, a person has been working for the last six months. It should be noted that no bonuses, overtime pay or compensatory leave are provided.

It would seem to spit and leave. But the woman is 47 years old, her positions are usually filled by younger employees, so it will not be so easy for her to find a job. This, unfortunately, is used by the employer. It is worth noting that our client is a great professional in her field, has several technical educations, constantly improves her skills, but is a very gentle person.

After the first meeting, we recommended that the developer's employee contact the CEO directly. Armed with the relevant paragraphs of the Labor Code. The general director turned out to be an adequate lady, paid a bonus (but not more than 5% of the total number of overtimes over the past six months), agreed that overtime should not be an everyday norm. But after a month and a half, our client, unfortunately, still quit of her own free will. Because her conversation with the general lasted only two days. Processing began again: at 19:00 new reports were required for the president of the company, for the financial director, and everything must be done by 10:00 tomorrow. She did not file a lawsuit for reimbursement of overtime.

Because it is very difficult in Russian reality to win a lawsuit with an employer who likes free overtime. Most often, employers do not issue a written order to involve an employee in overtime work, and he does not require a copy of such an order. And according to the law, only officially registered processing is recognized as such and paid. It is worth weighing all the prospects. After all, a new potential employer is unlikely to like such a wayward worker who sued the old employer. My only advice is to try to record all your overtime as much as possible: take sheets of arrivals and departures to the office on your phone, copy written assignments from management, and audio-record conversations about overtime.

Dmitry Smirkin

director of public relations Parallels

The contracts of middle and top-level managers, as a rule, contain references to irregular working hours. This is compensated by the amount of wages and various forms of additional motivation (bonuses and personal bonuses). All working conditions are negotiated at the stage of the interview and negotiation of the employment contract. You can refuse a job offer at any time. Payment for overtime working hours depends on the level of civility of the business. Large companies, as a rule, comply with the requirements of the Labor Code and pay for additional hours in accordance with established standards. In less advanced organizations, labor “for an idea” is not excluded. If we talk about areas, then, as a rule, PR specialists, sales managers, technical support employees, account managers in outsourcing agencies are forced to live in a 24/7 work schedule.

Work until late in the evening, return home by taxi, because. the metro is already closed, and many of the other "joys" of processing are familiar. In some organizations, overtime is considered the norm. What should an employee do in such a situation who does not want to give all his time to work, and what does the Labor Code say about overtime?

Related materials:

1. the worker is unable to do his job
2. the employee has problems with the distribution of his time (the so-called time management), and he cannot distribute the work in such a way as to complete it before the end of the working day
3. wish or requirement of management

The latter will be discussed.

Leader's wish or requirement

Spending all the time in the office, especially when there is a family, is unacceptable for many employees. Although such work may be a wish, and sometimes a direct requirement of the leader, you need to watch your interest. Employees - they are not robots, they have their own life apart from office duties. And of course, overworking is by no means a way to increase labor productivity: tired people are more likely to make mistakes.

For workaholic managers who are passionate about their work and consider the norm to work 20 hours a day without any incentives, it will be difficult to understand an employee who does not want to work in the same mode.

Overtime work becomes an unpleasant surprise if, when applying for a job, the systematic need to work late was silent. The situation becomes especially difficult if the employee likes the job and does not want to quit.

What to do? It is polite to “swing rights” and ask either for compliance with the employment contract, if it stipulates the length of the working day, or for compensation for overtime work. Moreover, the Labor Code contains norms on the basis of which this can be done.

Communication with superiors

Before going to the authorities, re-read your employment contract, maybe there is a clause about processing.

Review your job description carefully. Maybe you have been given additional responsibilities beyond those described in the instructions, and you are actually working for yourself and "for that guy."

Before communicating with management, consider the reasoning for your position. This is necessary to get your point across and get what you want, not get fired.

Simple arguments like "I'm getting tired" and "Pay me for overtime" are ineffective because it is not clear from them that work in the company is interesting for you, and your activity is productive. In addition to stating the very fact of unwillingness to continue to overwork or perform duties that are not yours, you need to present options for getting out of the situation, moreover, this must be done so that the boss does not start looking for a replacement for you.

Of course, there are unforeseen circumstances, rush jobs or checks. And if you are asked to linger, then you should not immediately swear, especially if overtime is not a common thing in the company. However, you should immediately stipulate compensation for overtime work.

In a conversation about compensation, knowledge of the TC will help you.

TC:overtime work

According to (Article 99), overtime is work that is performed by an employee at the initiative of the employer outside the working hours established for the employee.

Article 104 of the Labor Code of the Russian Federation obliges the employer to ensure that the length of working time does not exceed the normal number of working hours: 40 hours per week or 160 hours per month (Article 91 of the Labor Code of the Russian Federation).

Important! Involvement in overtime work should be allowed only with the written consent of the employee. With the exception of accidents and other emergencies at work, as well as the performance of unforeseen work, on the urgent implementation of which the further work of the organization as a whole or its individual divisions depends.

The Labor Inspectorate responds to workers' complaints about unpaid overtime. In the event that the employer cannot be compensated for overtime work, contact the inspection.

Overtime must not exceed 4 hours on two consecutive days or 120 hours per year. It is the employer's responsibility to ensure that overtime hours are accurately recorded for each employee.

Overtime work, in accordance with, must be compensated. For the first two hours, it must be paid at least one and a half times, and for the following hours, as well as forced work on weekends and non-working holidays, at least twice the amount. At the request of the employee, instead of money as compensation, he can receive additional days for vacation or time off (Article 13 of the Labor Code of the Russian Federation).

Overtime may be waived if:

• pregnant
• underage workers (except for creative professions)
• disabled people
• women with children under the age of three.

Processing with shift schedule

In accordance with Article. 103 of the Labor Code of the Russian Federation, a shift work mode can be established in an organization when “the duration of the organization’s production process exceeds the permissible duration of daily work, as well as in order to more efficiently use equipment, increase the volume of products or services provided.”

At the same time, employees should be familiar with the shift schedule that regulates the issues of starting and finishing work, the duration of breaks for rest and meals, the procedure for transferring workers from one shift to work to another, etc.

The shift schedule must be communicated to all employees no later than one month before its introduction.

For employees working in shifts, work on weekends and non-working holidays is paid taking into account certain features. So, for going to work on a schedule on Saturday and Sunday, they are paid the usual salary (). If an employee was recruited to work on a day that is not defined in his schedule as a worker, the organization is obliged to accrue remuneration in an increased amount of at least twice the usual amount.

Processing by pieceworkers

Under the piecework wage system, products produced during working hours in excess of the established duration are paid at normal piece rates, and in addition, the employee is paid extra for each hour of processing: for the first two hours - at least 50% of the hourly wage rate, and for each subsequent hour - at least 100% of this rate.

At some enterprises (organizations) or for some positions (more often - management and accountants) are characterized by permanent processing, under which overtime work, work on weekends or holidays, that is, all work outside the normal working hours, will be considered within the framework of this article. time.

According to Art. 91 of the Labor Code of the Russian Federation, the normal working time cannot exceed 40 hours per week. Subject to the provisions of other articles of Ch. 15 of the Labor Code of the Russian Federation, processing in the above sense also arises if, by virtue of the norms of legislation or an employment contract, a reduced working time is established for an employee (for example, for a disabled person of group 2 in accordance with Article 91 of the Labor Code of the Russian Federation) or part-time work (for example , a pregnant woman at her request in accordance with Article 92 of the Labor Code of the Russian Federation), and in fact he is working out the norm established by the above article. 91 of the Labor Code of the Russian Federation.

In accordance with the provisions of 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 outside 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 regulatory acts, employment contract:

• for overtime work (Article 99 of the Labor Code of the Russian Federation). It should not be forgotten that for some categories of workers a complicated, limited procedure has been established for involving them in overtime work. So, according to part 5 of Art. 99 of the Labor Code of the Russian Federation, the involvement of disabled people in overtime work, women with children under the age of three years is allowed only with their written consent and provided that this is not prohibited by them for health reasons. At the same time, disabled people, women with children under the age of three, must be familiarized with their right to refuse overtime work against signature;
• if the employee works on an irregular working day (Article 101 of the Labor Code of the Russian Federation).

Despite the fact that the Labor Code of the Russian Federation clearly and clearly sets out both the procedure for attracting employees to these types of work, and the procedure for processing and paying for these works, in practice, disputable situations for the employer arise from time to time related to the use of overtime at their enterprise. Let's consider several practical situations in terms of their relevance and potential risks that they cause. Taking into account examples from practice, we will try to identify the mistakes of the employer (if they really exist) when applying processing, and also try to find acceptable measures to correct the situation before a dispute arises. When describing the situation, general data for the enterprise will be indicated (for example, “there is processing”, but without indicating exactly how many people are working).

Situation 1: Overtime is available, but not fixed and not paid

Risks:

• the emergence of a labor dispute between the employee and the employer with a requirement to pay for overtime;
• the establishment by the regulatory authority when checking the presence of processing, the issuance of an appropriate order and bringing to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor and labor protection legislation.

How to

To apply for overtime work, you must:

• take from employees a written consent to overtime work (only for the cases listed in parts 2 and 4 of article 99 of the Labor Code of the Russian Federation). This consent can also be obtained in the form of the employee's signature on the order indicating "I agree to overtime work, number, signature";
• issue an order on involvement in overtime work indicating the provision of compensation for this work;
• familiarize the workers involved in the work with the order against signature;
• pay overtime work on time in accordance with the requirements of Art. 152 of the Labor Code of the Russian Federation. According to this norm, overtime work is paid as follows: for the first two hours of work at least one and a half times, for subsequent hours - at least double the amount. Specific amounts of payment for overtime work may be determined by a collective agreement, a local regulation or an employment contract. At the request of the employee, overtime work, instead of increased pay, may be compensated by providing additional rest time, but not less than the time worked overtime.

Note: the procedure for attracting employees to work on a weekend or holiday is similar to that described above, regulated by Art. 113 of the Labor Code of the Russian Federation, and compensation is provided in the manner and in the amount provided for in Art. 153 of the Labor Code of the Russian Federation.

To establish an irregular working day:

• adoption of a local act on the regime of irregular working hours, indicating the list of positions that can be involved in work in this mode (Article 101 of the Labor Code of the Russian Federation);
• issuance of an order on the establishment of an irregular working day for specific employees (by surname);
• an indication of this condition in the employment contract or the conclusion of an additional agreement to an already existing employment contract indicating compensation for work in irregular working hours. Usually - in the form of providing additional annual paid leave, the duration of which cannot be less than three calendar days (Article 119 of the Labor Code of the Russian Federation). But it is possible to provide (in addition to vacation) and compensation in the form of increased pay, which is not prohibited by Art. 149 of the Labor Code of the Russian Federation.

Case Study

The employee filed a lawsuit for overtime pay for the disputed period. The employer-respondent insisted that overtime work by virtue of the interpretation of Art. 99 of the Labor Code of the Russian Federation, the employee did not have. The court found that the employee was given a normal working time (40 hours a week), a summary accounting of working time with an accounting period of a quarter; the plaintiff worked on a rotating holiday schedule. The information on the number of working hours reflected in the schedule coincided with the information indicated in the time sheet. However, in the course of the case, it was established that the company additionally kept a specific journal for machinists, in which the machinists themselves reflected information about the work performed and the amount of time spent on it. The specified information was checked and accepted by an authorized representative of the employer. On the basis of the information from the indicated journal, the fact of processing the plaintiff was established. At the same time, rejecting the defendant's arguments, the court pointed out that the fact that this log is filled out and maintained by the driver himself does not indicate the unreliability of the information reflected in it. In addition, the court took into account that the representative of the defendant at the hearing did not deny the fact that the accounting of working time is also carried out according to this journal. Taking into account these conclusions, the court exacted payment for overtime work from the defendant (determination of the Perm Regional Court dated March 12, 2014 in case No. 33-2160/2014)).

Conclusion: even if the employer “tryes” not to formalize overtime work in any way, when considering a dispute in court, other evidence of the employee’s performance of work on the instructions of the employer outside the working hours established for him may “surface”.

Situation 2: Processing is available, processed, but not paid

Risks

Same as in case 1.

How to

• Pay for overtime work in accordance with Art. 152 of the Labor Code of the Russian Federation.
• Compensate for work on a weekend or holiday in accordance with Art. 153 of the Labor Code of the Russian Federation.
• If an increased payment is provided for by a local act and an employment contract with an employee for working in irregular working hours, pay the specified amount.

Case Study

The court ordered the employee to pay the underpaid wages, as it established that, in fact, during the disputed period, the employee worked more than the norm of working hours. Meanwhile, in the course of the dispute, the court found that the registration of overtime work was “half-hearted”: the duty schedule and the shift log reflected the employee’s increased work time compared to the norm, and the time sheet recorded only the norm of working hours in accordance with Art. 91 of the Labor Code of the Russian Federation. However, this did not prevent the court from making this decision even under such circumstances (appeal ruling of the Altai Regional Court dated February 19, 2014 in case No. 33-1364 / 2014)).

Conclusion:"Half" registration of the involvement of an employee in overtime and / or partial reflection of overtime in documents for recording working hours does not guarantee that the employer can save money on overtime pay with impunity.

Situation 3: Processing is available, paid for, but not issued (incorrectly executed, including in terms of payment calculation)

Risks:

• issuance of an order by the regulatory authority to bring the documentation into compliance (unlikely, since the scope of verification by these authorities lies in the plane of identifying violations of the rights of employees, and not the procedure for internal processing of personnel and accounting documentation);
• the occurrence of a tax dispute, as there are no documents confirming the company's expenses for overtime pay;
• some confusion may arise, the result of which will be a dispute between the employer and the employee with a requirement for the latter to return unreasonably (since there is no documentary registration of involvement in overtime work) the money received in remuneration;
• the risk of a labor dispute with an employee about the amount of accrued payment for overtime.

How to

• Do not forget to document each case of involving employees to work in excess of the working hours established for them in accordance with the requirements of the Labor Code of the Russian Federation (discussed above).
• Accurately calculate overtime pay. Article 152 of the Labor Code of the Russian Federation establishes a unified procedure for paying overtime hours. Overtime work is paid for the first two hours of work at least one and a half times, for subsequent hours - at least twice the amount. In the case of applying the summarized accounting of working hours, based on the definition of overtime work, the calculation of overtime hours is carried out after the end of the accounting period. In this case, work in excess of the normal number of working hours for the accounting period is paid for the first two hours of work at least one and a half times, and for all other hours - at least twice the amount.

Case Study

The employee filed a lawsuit for the recovery of wages, indicating that he was incorrectly paid hours of overtime. During the consideration of the case, it was found that the calculation of payment for overtime was made by the employer incorrectly: the calculation of payment for overtime hours was made for each day in which there was processing. From the documents submitted by the defendant, it followed that the plaintiff was paid for 263.6 hours of overtime work in the following order: in one and a half times - 163 hours, in double the amount - 100.6 hours, 5 hours were paid in double the amount, as holidays. Meanwhile, the enterprise used a summarized accounting of working hours, in connection with which the employer should start calculating processing after the end of the accounting period and pay overtime hours in the amount of 263.6 hours as follows: the first 2 hours of overtime work of the plaintiff for the second half of the year - in one and a half times , the remaining 261.6 hours - in double size. Thus, the court agreed with the plaintiff's claims and ruled to recover additional overtime pay from the employer according to the new calculation (decision of the Pechora City Court of the Komi Republic in case No. 2-1038/2012)).

Conclusion: even if the employer paid overtime, but incorrectly made the calculation (executed it), the undercharged amounts may be recovered from him by decision of the labor dispute resolution body.

Situation 4: Processing is processed, paid in full, but its maximum amount has been exceeded

Risk:

Holding the employer liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor and labor protection legislation, if the total number of overtimes for one employee exceeds the amount established by Part 6 of Art. 99 of the Labor Code of the Russian Federation.

How to

In accordance with Part 6 of Art. 99 of the Labor Code of the Russian Federation, the duration of overtime work should not exceed 4 hours for each employee for two consecutive days and 120 hours per year. Since part 7 of Art. 99 of the Labor Code of the Russian Federation, the obligation to keep records of working hours is assigned to the employer, it will be he who will be found guilty of exceeding the maximum number of overtime work.

Case Study

The employer was brought to administrative responsibility in the form of an administrative fine for violating Part 6 of Art. 99 of the Labor Code of the Russian Federation, drivers of a healthcare institution were involved in overtime work for more than 120 hours a year. The employer appealed against the decision to bring to administrative responsibility to the court, however, the court considered the guilt of the head doctor of the healthcare institution to be established and proven in committing an administrative offense under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and denied the claim to the punished employer (decision of the Birobidzhan City Court of the Jewish Autonomous Region dated March 21, 2011 in case No. 12-54 / 2011)).

Conclusion: it is important not only to correctly draw up the involvement of an employee to work outside the normal working hours established for him and pay for such work in an increased amount, but also not to exceed the maximum amount of time for the production of these works, established by Part 6 of Art. 99 of the Labor Code of the Russian Federation.

Situation 5: There is no overtime, the employee has an opposite opinion on this matter, but has not received an explanation about this

Risk:

The emergence of a labor dispute on the issue of payment for overtime work or the provision of other compensation for work outside the normal working hours established for the employee.

How to

To eliminate the risk, it is recommended to explain to the employee the procedure for compensating for his work in an increased volume with the justification of the calculations by the norms of regulatory and local acts. Confirmation of familiarization will be the signature of the employee in the familiarization sheet with the local act of the employer. We should not forget that it is the responsibility of the employer, fixed in part 2 of Art. 22 of the Labor Code of the Russian Federation.

Case Study

An employee of a health care institution filed a lawsuit to recover payment for overtime work, work on weekends. In the lawsuit, she explained that, by order of the management, she went to work on her days off to draw up patient cards and other documentation. During her own working hours, she received a larger volume of patients than expected, since instead of nine therapists, only five worked. Due to a shortage of staff, all patients from other areas were distributed among working therapists, so her workload was increased, seven hours of daily work was not enough, but the employer did not pay for work outside of working hours in an increased amount and did not compensate for it in other ways. During the consideration of the case, the facts of a reduced number of employees in a healthcare facility and an increased workload for working therapists were confirmed. But at the same time, the court found that the employer used the brigade form of work of medical employees: all patients were distributed evenly, and an additional payment was made to wages for the brigade method of work. There were no orders to engage employees to work outside the working hours established for them, this fact coincided with the data of the schedule, time sheet, accounting documentation for payroll, journals and other evidence presented by the defendant in the case. Based on the foregoing, the court concluded that the plaintiff did not have overtime, that she was adequately paid for her work in the increased workload mode as part of the brigade and, accordingly, did not find grounds for satisfying her claim (decision of the Aldan District Court of the Republic of Sakha (Yakutia) dated April 10, 2013 in case No. 2-441/2013)).

Conclusion: far from always, an increase in the workload of an employee means the use of his labor outside the normal working hours established for him; the employee's going to work on his day off to complete the documentation that was not executed during working hours, in the absence of orders to engage in work on a day off, cannot be qualified as engagement to work on the initiative of the employer, but is regarded as a personal initiative of the employee.

conclusions

1. The law does not prohibit the employer from applying overtime, that is, to attract workers outside the normal working hours established for them (with the exception of certain categories of workers), however, it requires the employer not only to correctly register (“keep records of working hours” - part 7 of article 99 Labor Code of the Russian Federation), but also increased payment / provision of appropriate compensation (Articles 152, 153, 119 of the Labor Code of the Russian Federation).
2. Concealment of overtime in the overwhelming majority of cases results in labor disputes with employees demanding payment for overtime hours worked by them in accordance with labor legislation.
3. Hidden processing can be revealed during the inspection by regulatory authorities of the procedure for compliance with labor laws by the employer. in this case, the employer is awaiting an order to eliminate the violation and, possibly, bringing to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor and labor protection legislation.
4. Even the correct registration and calculation of payment without the actual fact of payment of funds creates the risk of claiming these amounts by the employee. The recovery of these amounts to the employee may be refused only if he misses the deadline for applying to the court established by Art. 392 of the Labor Code of the Russian Federation, and the employer's statement on the application of the consequences of missing this deadline.
5. Proper execution and full payment for overtime in accordance with the calculation made by the employer also does not guarantee the absence of labor disputes and decisions to refuse to satisfy the claims of plaintiff workers. On the contrary, in the course of the examination of the case, it may well be revealed that the employer, by incorrect calculation, paid overtime in a reduced amount.

In addition to these conclusions, it is also necessary not to forget about some important details when using processing at the enterprise. They were not discussed in this article, but it would not be superfluous to recall them.

memo

• Some workers are prohibited from engaging in overtime work. These include pregnant women, workers under the age of eighteen (part 5 of article 99 of the Labor Code of the Russian Federation), as well as workers in the period of apprenticeship (art. 203 of the Labor Code of the Russian Federation).
• For some categories of workers, a complicated, limited procedure has been established for involving them in overtime work. So, according to part 5 of Art. 99 of the Labor Code of the Russian Federation, the involvement of disabled people in overtime work, women with children under the age of three years is allowed only with their written consent and provided that this is not prohibited to them for health reasons. At the same time, disabled people, women with children under the age of three, must be familiarized with their right to refuse overtime work against signature.
• In disputes over payment for overtime, one should not forget about the possibility of imposing additional sanctions on the employer by the court and the GIT in the form of bringing to liability under Art. 236 of the Labor Code of the Russian Federation for late payment for overtime.

Overtime work is considered one of the options that allow you to earn extra money, get additional income. Sometimes the boss offers to stay at work after hours to finish the assignment received earlier. Many gladly agree, knowing that this will bring them a possible surcharge. According to the Labor Code of the Russian Federation, the employer does not have the right to abuse such offers, the violation of which is accompanied by financial penalties in the form of fines imposed on the enterprise.

The Labor Code of the Russian Federation is aimed at protecting the rights of workers. It includes articles that regulate work in excess of the norm, prohibit employers from applying increased loads on their employees, which allows them to maintain their health.

The Labor Code of the Russian Federation has a separate chapter devoted to the definition of work time standards. Article 91 of the Labor Code of the Russian Federation states that with the usual organization of working hours, the amount of hours worked cannot be more than 40 with a 5 or 6 day work week. If the employee has exceeded the time limit established in the labor law, then all hours worked are paid.

It is noted that overtime is recognized as work in which an employee is used by superiors in excess of the normative hours approved by law. The initiative of such a stay at the workplace must necessarily come from the management and have good reasons for this. The use of employees for overtime work is possible only when the consent of each of them in writing is obtained. It is also necessary to have the approval of the trade union body of the enterprise.

The grounds on which it is possible to withdraw workers at excess time may be as follows:

1. It is required to complete the started task within certain strictly established deadlines, in case of non-observance of which, loss or damage to the property and property of the employer is possible.
2. If a break in work can lead to the creation of situations that threaten the health or even death of people, then there is a need to continue the previous actions taken. Previously planned activities were disrupted due to unforeseen circumstances and technical reasons.
3. Repairing and refurbishing a building or equipment that may result in downtime for a significant number of employees.
4. With continuous production and the non-appearance of the shift, the employer may ask the employee to stay at work for a while. Management does not have the right to leave him for a full 2nd shift. Measures must be taken to find an alternative solution.

There may be circumstances in which the involvement of employees in overtime work does not require their consent:

1. In case of accidents or catastrophes at work to eliminate their consequences.
2. Employees of such areas that are vital for a large number of the population, in violation of the normal existence of people: water supply, gas supply, electricity supply, heating, transport, communications.
3. In the event of emergencies, military situations or disasters associated with natural disasters, as well as fires, famine or epidemics.

Video - Overtime payment with summarized accounting of working hours

Who is not allowed to work overtime

• pregnant women;
• minor citizens;
• workers with harmful working conditions;
• disabled people of 1 and 2 groups;
• women who have children under 3 years of age.

The last two categories, if necessary, can be withdrawn during additional hours, but at the same time they must sign 2 documents. The first is their consent to the processing, and the second is that they have every right to reject such an offer.

Time limits for different categories of workers

At any enterprise, a normalized record of the time worked by each employee is kept. Overtime is usually calculated based on a comparison of the number of planned hours for a certain period, and those hours that were actually worked out. Usually, a month is taken for calculations, but a quarter, and even a year is possible.

1. For minors under 16 years old - 24-hour week, from 16 to 18 years old - 35-hour week.
2. Under special working conditions associated with danger and harmful to health, a 30 or 36-hour week is approved.
3. For all other employees, the week is set at 40 hours.

Overtime Time Limits

Legislation defines restrictions on the use of workers overtime. The employer has the right to involve an employee in additional work for no more than 4 hours. And this should not happen more than 2 days in a row.

Every year, the country's government approves the production calendar, which sets standard hours for all categories of workers. The management of the enterprise must ensure that employees working in shifts do not have more than 120 hours of overtime per year. If such a situation occurs, penalties will be imposed on the organization. According to Article 5.27 of the Code of Administrative Offenses, for each violation, an official will be punished from 1,000 to 5,000 rubles, and an enterprise - from 30,000 to 50,000 rubles. It is possible to suspend the activities of the organization for up to 90 days.

Important! In case of violations by the employer, an employee who has overtime over 120 hours must receive full compensation for it.

Overtime registration

There is no strictly established form for fixing overtime hours. The following processing methods are recommended:

1. The written notification contains information about the reason for the additional work, the date and time during which the employee must perform it. This document is handed to the employee, which he signs, expressing his consent.
2. If several employees are withdrawn, then it is more reasonable to draw up an order to involve them in overtime work. It signs the basis for processing, the date and time for each employee. There is a special column where the consent is signed.
3. Processing should be noted in the report card in the form of a special designation "C" with the establishment of the number of overtime hours. Usually, forms approved by Rosstat or are used to maintain time records.

Important! An employer can protect itself from issues related to processing. To do this, it is required to fix the condition on irregular working hours in the labor agreement. Under this regime, no overtime hours are charged.

Payment for processing

The Labor Code contains information on the established minimum for payments provided for the exit of employees in excess time. Tariffs for processing are set at each enterprise. They are fixed in a collective agreement or in a contract concluded with an employee. At the same time, these rates should not be less than those guaranteed under the Labor Code.

According to Article 152 of the Labor Code of the Russian Federation, when processing on weekdays, the first two hours of overtime are calculated at one and a half times, the following hours are calculated at double pay. Article 153 establishes the amount of payment for going to work on weekends and holidays. Prices in this case are always increased by at least 2 times. There is an alternative payment. If the employee agrees, then he can get a day off on any other day at will. The remaining payment will be charged in a single amount.

Calculation example

If an employee is called for additional work on Tuesday for 4 hours, then the next time he can be involved in such work no earlier than Thursday. Pay for 4 hours worked on Tuesday will be calculated as follows:

1. If a specialist who is on a salary is called for overtime work, then first you need to find out the cost of one hour. With a salary of 25,000 rubles and a 168-hour balance, one hour costs 148.80 rubles. The first 2 hours of processing are paid in the amount of 148.80 * 1.5 = 223.20 rubles, the other 2 hours - 148.80 * 2 = 297.60 rubles. The amount of payment for processing will be 520.80 rubles.
2. If the employee has a piecework wage, then the calculation of the cost of overtime hours is determined from his tariff rates. The calculations are made by analogy with the first method.
3. In case of a shift regime with a quarterly accounting period, the calculation is carried out as follows. When the accounting period is closed, the actual hours worked for 3 months are summed up and compared with the balance of working hours for the quarter. If the fact exceeds the normative balance, then this difference is processing.

40 hours of work per week (or even less), of course, is the norm. But everyone knows how difficult it can be to complete tasks, especially urgent ones, without “grabbing” a couple of hours from rest time. Many employees work in irregular working hours - this is the specifics of the position. Others are called upon to work overtime in the evenings or even on weekends. What can I say, in emergency situations sometimes you have to work on a holiday. All these cases of additional labor costs should be under special control, require proper registration, accurate accounting and appropriate compensation.

At the beginning of our conversation about processing, we recall the main provisions on the duration and modes of working time.

HR Dictionary Working time- this is the time during which the employee, in accordance with the Internal Labor Regulations and the terms of the employment contract, must fulfill his labor duties

Rule 1. Labor legislation establishes normal working hours.

Part 2 of Article 91 of the Labor Code of the Russian Federation establishes the normal duration of the working week no more than 40 hours. It must be remembered that for certain categories of workers, reduced working hours are normal (Article 92, Part 4 of Article 173, Part 4 of Article 174, Part 3 of Article 176, Article 320, Part 1 of Article 333 and part 1 article 350 of the Labor Code of the Russian Federation).

If the daily or weekly working hours established for a particular category of workers are not “suitable” for the organization (for example, for a transport company, enterprises with a continuous production cycle, organizations with a shift regime, with a rotational method of organizing work), then summarized accounting is applied working hours, in which the duration of working hours for the accounting period (month, quarter and other periods) should not exceed the normal number of working hours (Article 104 of the Labor Code of the Russian Federation).?

Rule 2. The duration of the weekly uninterrupted rest is established.

An employee's weekly uninterrupted rest cannot be less than 42 hours (Article 110 of the Labor Code of the Russian Federation).

According to the general rule established by Part 1 of Art. 113 of the Labor Code of the Russian Federation, it is prohibited to work on weekends and non-working holidays, with the exception of cases when employees are involved in work on such days, provided for in parts 2 and 3 of this article (with and without the consent of employees).

Rule 4. The employer establishes working hours in accordance with the law.

The working time regime is established by the employer, taking into account the requirements of the Labor Code of the Russian Federation, the specifics of the activities and the composition of the company's employees (part 1 of article 91, 103 and 189 of the Labor Code of the Russian Federation). In addition, the mode of working time and rest time (if for a given employee it differs from the general rules in force for a given employer) is a mandatory condition of an employment contract (paragraph 5, part 2, article 57 of the Labor Code of the Russian Federation).

At the same time, the employer in his activities cannot always “keep within” the established norm. There are unforeseen disruptions in the production process and extraordinary circumstances, urgent and lucrative contracts appear, deadlines for performing special company tasks or reporting are coming to an end, etc. In such situations, it becomes necessary to increase the length of working hours beyond the established norm.

Labor legislation, under certain conditions, allows employers to extend the working hours of employees beyond its normal duration.

Yes, Art. 97 of the Labor Code of the Russian Federation defines the following cases of involving employees to work in excess of the working hours established for them:

• overtime work (Article 99 of the Labor Code of the Russian Federation);
• work in irregular working hours (Article 101 of the Labor Code of the Russian Federation).

Also, under certain conditions, it is allowed to attract employees to work on weekends and non-working holidays.

Processing in the company, as a rule, is temporary.

In accounting - during the reporting period, in the marketing department - during the introduction of a new assortment matrix of goods, in the logistics service - during the supply period, etc.

Processing is also typical for employees holding certain positions - company management, chief accountant, other heads of structural divisions, secretaries and assistants to managers, specialists involved in the implementation of new business projects, etc.

Note that any cases of processing must be reasonable and justified for both the employer and employees for the following reasons.

Reason 1. An eight-hour working day (with a 5-day working week) is a physiologically determined standard of working time; if it is observed, the employee has time to fully relax and is ready to work productively.

Reason 2. Workers should not fall from fatigue from constant processing and sacrifice their free time because of this (which can lead to discontent in the team).

Reason 3. Overtime enthusiasts should not show unhealthy fanaticism in an effort to receive double pay with overtime at any cost and consider it bad form on the part of other workers to leave work on time or before the boss.

Reason 4. For the employer, the systematic overtime is a very costly mechanism, since the wage fund practically doubles.

Therefore, both from the point of view of labor legislation and from the point of view of the mutual interests of the employer and employees, processing in any company should not be of a protracted and chronic nature.

DOCUMENTATION AND PAYMENT OF PROCESSING

Additional labor costs of employees associated with processing must be formalized with appropriate documents and compensated.

Article 149 of the Labor Code of the Russian Federation establishes that when performing work in conditions that deviate from normal, including overtime, work at night, weekends and holidays, the employee is paid the appropriate payments provided for by labor legislation and other regulatory legal acts containing norms labor law, collective agreement, agreements, local regulations, labor contract. The amounts of such payments established by the collective agreement, agreements, local regulations, labor contract cannot be lower than those established by labor legislation and other regulatory legal acts containing labor law norms.

However, it is far from always possible to receive payment for work that goes beyond the established working hours. Let's figure this out. Let's start with overtime.

By the way

OVERTIME WORK

Overtime is the work performed by an employee at the initiative of the employer outside the working hours established for him: daily work (shift), and with the summarized accounting of working hours - in excess of the normal number of working hours for the accounting period (part 1 of article 99 of the Labor Code of the Russian Federation, letter Rostrud dated 02.12.2009 No. 3567-6-1).

Such an initiative of the employer should be reflected in the relevant organizational and administrative document.

Some of our employees "like" to stay in the office after the end of the working day, and then make claims that they work overtime without any accounting and payment. At the same time, their immediate supervisors believe that they simply work inefficiently during the working day, so they do not have time to do anything. Are the workers right? Do I need to pay for such processing under the rules of overtime pay?

To recognize processing as overtime work, it is necessary that the initiative to attract an employee to work overtime comes from the employer, and not from employees. It is very important that each case of involvement in overtime work is justified and formalized by order of the head.

If the employee, of his own free will and discretion, came to work early or stayed in the evening for several hours, such work will not be considered overtime and, as a result, will neither be paid nor taken into account when determining the number of hours worked (Article 99 of the Labor Code of the Russian Federation, letter Rostrud dated March 18, 2008 No. 658-6-0). Please note: in these situations, you can even talk about a violation of the work schedule established by the employer.

It is also not overtime, although it is performed outside the working day, the work of employees who have an irregular working day (Articles 97 and 101 of the Labor Code of the Russian Federation, letter from Rostrud dated 07.06.2008 No. 1316-6-1) or part-time workers (Article 601 of the Labor Code RF).

Overtime Rules

When engaging employees in overtime work, the employer must comply with the following rules.

Rule 1: Overtime cannot be scheduled in advance.

As follows from the definition of overtime work (Article 99 of the Labor Code of the Russian Federation), its use in most cases is forced for the employer due to some circumstances or violations in the course of economic activity (production process) and is of an exceptional nature. For this reason, overtime work cannot be planned in advance (Rostrud letter dated 06/07/2008 No. 1316-6-1). This is confirmed by judicial practice.

Thus, in the cassational ruling of the Supreme Court of the Republic of Karelia dated April 13, 2010, the Judicial Collegium for Civil Cases agreed with the conclusion of the court of first instance (decision of the Petrozavodsk City Court dated March 1, 2010) regarding paragraph 4 of the contested order of the State Civil Inspectorate of the Republic of Karelia dated December 17, 2009 No. 63 / 22/2-933 on the prohibition to involve drivers in overtime work on the basis of an overtime schedule drawn up in advance for drivers, substantiating their position with the following arguments.

In accordance with Art. 99 of the Labor Code of the Russian Federation, the involvement of an employee in overtime work is allowed with his consent and in the cases provided for in this article.

According to paragraph 5.2.10 of the collective agreement, it is possible to attract employees to whom the procedure for the summarized accounting of working hours is applied to overtime work on the conditions provided for in Art. 99 of the Labor Code of the Russian Federation and clause 5.2.7 of the collective agreement. The accounting period for CTA drivers is one month. By virtue of clause 5.2.7 of the collective agreement, if employees are involved in overtime work, the parties are guided by the norms of Art. 99 of the Labor Code of the Russian Federation.

Meanwhile, the court found that in relation to drivers it is allowed to involve them in work outside the normal working hours. At the same time, overtime work is planned almost monthly for a year in advance, for which the written consent of the drivers is requested. However, this is contrary to Art. 99 of the Labor Code of the Russian Federation, according to which the consent of the employee to work overtime must be obtained by the employer from the employee before each fact of involvement in such work.

As a result, the decision of the Petrozavodsk City Court dated March 1, 2010 on the present case was upheld, and the cassation appeal of the applicant (employer) was not satisfied.

Rule 2: Overtime is counted at the end of a certain period.?

Depending on the procedure for recording working time, overtime will be work that is performed at the initiative of the employer outside (Article 99 of the Labor Code of the Russian Federation):

• the established duration of daily work for this category of workers (for example, 8 hours a day) - with the usual accounting of working time;
• the normal number of working hours for the accounting period (month, quarter, year) - with a summarized accounting of working time.

Note! For employees with reduced working hours, work outside of it is recognized as overtime.

Rule 3. The law establishes the maximum duration of overtime work.

The duration of overtime work should not exceed four hours for each employee for two consecutive days and 120 hours per year (part 6 of article 99 of the Labor Code of the Russian Federation).

For car drivers, with the summarized accounting of working time, overtime work during the working day (shift) together with work according to the schedule should not exceed 12 hours. The exception is cases when it is necessary to complete the flight or the shifter did not appear (clause 23 of the Regulations on the peculiarities of the working hours and rest time of car drivers, approved by order of the Ministry of Transport of Russia dated 08.20.2004 No. 15).

There are many part-time employees in the organization. Can they work overtime? And if so, what are its limits?

The law does not contain any exceptions for attracting part-time workers to overtime work.

With regard to the overtime limit for part-time workers, the following must be borne in mind. The duration of the working day for them cannot exceed four hours (they can be involved in full-time work only on days free from their main work). In addition, the norm of working hours for a month (or another accounting period) for them should not exceed half of the monthly norm of working hours (norms of working hours for another accounting period) in accordance with the production calendar (Article 284 of the Labor Code of the Russian Federation). But at the same time, a general limitation on the duration of overtime work applies to part-time workers - no more than four hours for two consecutive days and no more than 120 hours a year (Article 99 of the Labor Code of the Russian Federation), since the law does not contain another rule.

Note! On December 6, 2011, Federal Law No. 402-FZ “On Accounting” was adopted, which will come into force on January 1, 2013.

Rule 4. The employer must keep accurate records of overtime worked.

Because of these severe restrictions, the employer is required to ensure that each employee's overtime hours are accurately recorded. Such accounting is kept in the time sheet according to unified forms No. T-12 and No. T-13, approved. Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1. Reason - Part 7 of Art. 99 of the Labor Code of the Russian Federation, paragraph 2 of Art. 9 of the Federal Law of November 21, 1996 No. 129-FZ “On Accounting”, paragraph 1 of Art. 252 and 313 of the Tax Code of the Russian Federation.

How is overtime recorded on the time sheet?

In column 4 of the unified form No. T-13 (columns 4 or 6 of the unified form No. T-12), the letter code "C" or the numeric code "04" is entered, and under it the number of hours and minutes worked overtime is indicated (clause 2 of the Instructions on the application and filling out forms of primary accounting documentation for accounting for labor and its payment, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1).

Rule 5. Overtime work is episodic. Involvement in overtime work should not be systematic, it can occur sporadically in certain cases (Rostrud letter dated 07.06.2008 No. 1316-6-1).

Rule 6. Violation of the procedure for engaging in overtime work entails administrative liability.

Note! Under no circumstances should pregnant women, minors (with the exception of artists and athletes) and employees be involved in overtime work during the period of the student agreement

In case of violation of the procedure for attracting an employee to overtime work, the employer is liable in the form of an administrative fine (part 1 of article 5.27, Code of Administrative Offenses of the Russian Federation, resolution of the Federal Antimonopoly Service of the Central District of March 21, 2006 in case No. A08-10945 / 05-21.):

• for officials - in the amount of 1,000 to 5,000 rubles;
• for legal entities - from 30,000 to 50,000 rubles. or administrative suspension of activities for up to 90 days. At the same time, violation by the employer of the procedure for engaging in overtime work (for example, exceeding the maximum allowable number of hours of overtime work per year) should not affect the exercise of the employee's right to pay for overtime work.

Rule 7. It is forbidden to involve certain categories of workers in overtime work.

1) pregnant women (part 1 of article 259);

2) employees under the age of 18, with the exception of creative workers and athletes (Article 268 and Part 3 of Article 3488 of the Labor Code of the Russian Federation);

3) employees during the period of validity of the student agreement (part 3 of article 203 of the Labor Code of the Russian Federation). The law guarantees these employees timely and proper rest, which means that no circumstances can serve as a basis for involving them in overtime work, even if the employees themselves agree to this.

Depending on the reasons for the need for overtime work, involvement in it can be carried out both with the consent of the employee and without it. (Table 1).

In exceptional cases, when an employee can be involved in overtime work without his consent, the employer must issue an order on involvement in overtime work and familiarize the employee with it against signature.

I work in the human resources department of a large industrial enterprise. Orders to involve employees in overtime work are signed by the general director, but he, of course, cannot be aware of all the current affairs of the plant, even when it comes to industrial accidents. How to properly draw up documents in these cases, because the head of the organization needs to somehow provide all the necessary information?

Indeed, it is difficult to imagine a situation where the head of a large industrial enterprise with several thousand employees independently receives and keeps in mind information about all the problems in the work.

In order for the head of the organization to decide on the need to involve an employee in overtime work, as well as determine the procedure for such involvement, it is often necessary to inform him of this in writing, for example, in a memorandum.

The text of this document names the circumstances that caused such a need, and information about when and which employee needs to be involved in the work. Exceptional circumstances referred to in the memorandum may be preliminarily recorded by the relevant act.

If the reason for overtime work was a production accident, as a rule, an order is first issued for the main activity to eliminate the consequences of such an accident, where personnel issues are resolved, among other things. Then, on the basis of this document, the personnel service prepares an order for personnel to involve individual employees in overtime work.

Involvement in overtime work in cases where it is necessary to obtain the written consent of the employee, such consent should be issued in advance - before issuing an order on involvement in overtime work.

How can I get an employee's prior consent to work overtime?

Note! For a table with an algorithm for attracting employees to work overtime in various situations, see.

In practice, several options are used for this. An employee can be sent a written notice of the need for overtime work, getting acquainted with which against signature, he can express his consent (or disagreement) to such work. This option is not always convenient in conditions of limited time for making and processing a decision on overtime work.

Another option allows you to save time - the employee can be familiarized with the memorandum, which will then be presented to the head of the organization, against signature (Attachment 1).

Only after the written consent of the employee is issued, it is possible to issue an order to involve him in overtime work. (appendix 2).

Table 1

Procedure for engaging in overtime work

In those situations where, in addition to the written consent of the employee, it is required to take into account the opinion of the elected body of the primary trade union organization, the draft order on involvement in overtime work must be sent to the trade union committee.

Peculiarities of involving individual employees in overtime work

With written consent and in the absence of a ban on working overtime for health reasons, in accordance with a medical report, it is allowed to involve in overtime work:

• disabled people (part 5 of article 99 of the Labor Code of the Russian Federation);
• women with children under the age of three (part 5 of article 99 and part 2 of article 259 of the Labor Code of the Russian Federation);
• mothers and fathers raising children under the age of five without a spouse (parts 2 and 3 of article 259 of the Labor Code of the Russian Federation);
• workers with disabled children (parts 2 and 3 of article 259 of the Labor Code of the Russian Federation);
• workers caring for sick family members (parts 2 and 3 of article 259 of the Labor Code of the Russian Federation).

At the same time, it is necessary, against signature, to familiarize such employees with their right to refuse overtime work (part 5 of article 99, part 2 of article 259 and article 264 of the Labor Code of the Russian Federation).

The procedure for processing documents

As we have already noted, each case of involving an employee in overtime work must be formalized by order (instruction) of the head. There is no unified form of this document, therefore it is drawn up in any form. The order (instruction) must indicate:

• reasons for the need for overtime work;
• involved workers;
• duration of overtime work;
• payment procedure.

Please note: you cannot issue one order (instruction) on overtime work immediately for a month, quarter or year. Also, it is impossible to prepare and approve lists of employees involved in overtime work in the future in advance.

The collective agreement and (or) employment contracts, as well as local regulations of the employer, should not contain conditions confirming in advance the consent of the employee to work overtime in the future.

According to Art. 152 of the Labor Code of the Russian Federation, overtime work is compensated at the choice of the employee either by increased pay or by providing additional rest time (Table 2).

Article 152 of the Labor Code of the Russian Federation is very laconic, its norms indicate only the size of the multiplying coefficients for the corresponding hours of work, without naming either the basis for their application or the calculation algorithm itself. This article also does not mention payment for overtime work if it occurs at night, weekends and non-working holidays.

table 2

Overtime compensation

In this regard, the following questions often arise in practice:

1. What to take to calculate the base - only the tariff part of the salary (tariff rate, salary) or consider additional payments and allowances for them (if any)?

2. How to determine the cost of an hour of overtime work for an employee who has a salary or a monthly tariff rate?

3. What hours of work are paid at the rate of one and a half, and what hours - at the double rate with the summarized accounting of working time?

4. How to pay for overtime night work (both as overtime and as night work or only as overtime or only as night work)?

5. How to pay for overtime work on weekends and non-working holidays (both as overtime and as work on weekends and holidays, or only as overtime, or only as work on weekends and holidays)?

HR Dictionary Analogy- the resolution of any case not directly regulated by law, by applying a legal norm regulating relations of a similar nature (analogy of law), or on the basis of general legal principles (analogy of law). Analogy is used only as a last resort and serves as a means of filling gaps in the law.

Base for calculation of coefficients. In this case, you can apply the rules of labor law by analogy.

Because Art. 152 of the Labor Code of the Russian Federation does not determine the basis for the application of multiplying factors, with regard to overtime pay, the norms of Art. 153 of the Labor Code of the Russian Federation, which regulate the payment for work on weekends and non-working holidays in relation to the daily or hourly tariff rate, the daily or hourly part of the official salary, and for piece workers - to piece rates.

So, in a collective agreement or a local regulatory act (for example, in the Regulations on wages), the following procedure can be provided: part of the official salary (excluding additional payments and allowances).

Payment for overtime work (if the employee chooses this form of compensation) is made in the following order:

• piecework workers - for the first two hours of overtime work at one and a half piecework rates; starting from the third hour of overtime work and further - at double piece rates;
• employees whose work is paid at daily and hourly tariff rates - for the first two hours of overtime work in the amount of one and a half daily or hourly tariff rates; starting from the third hour of overtime work and further - in the amount of a double daily or hourly tariff rate;
• employees receiving a salary (official salary) - for the first two hours of overtime work in the amount of one and a half daily or hourly rates (part of the salary (official salary) per day or hour of work); starting from the third hour of overtime work and further - in the amount of a double daily or hourly rate (part of the salary (official salary) for a day or hour of work).

The cost of an hour of overtime work by an employee who has a fixed salary or monthly tariff rate. As you know, the norm of working hours according to the production calendar varies by month during the calendar year. And the amount of wages of such an employee does not depend on the number of working hours in a particular month, if the norm of working hours for this month is fully worked out according to the production calendar. In this situation, it is advisable to apply the following formula:

The proposed calculation will allow the cost of an hour of work for all categories of workers to be calculated on the basis of equal conditions, and its value will not depend on the number of working hours in the corresponding month, since the formula uses the indicator “average monthly number of working hours in a particular calendar year”.

According to the production calendar for 2012, the average monthly number of working hours will be:

Payment of overtime hours with the summarized accounting of working hours. The difficulty in this case is due to the fact that the employee is involved in overtime work on certain days. At the same time, the number of overtime hours is calculated based on the results of the accounting period (month, quarter, other period) (Articles 99 and 104 of the Labor Code of the Russian Federation).

Therefore, it is not possible to count hours of overtime work separately for each day of involvement in overtime work. In the situation under consideration, increased pay for overtime work should be determined only on the basis of the results of the accounting period.

The employer has the right to establish in the local regulatory act another, optimal for him, procedure for calculating the hourly part of the salary (hourly tariff rate).

For example, with daily accounting, apply the norm of working hours according to the production calendar in the month of involvement in overtime work, and with summarized accounting - the average monthly number of working hours for the accounting period.

Overtime at night. Work in the period from 10 p.m. to 6 a.m. refers to night work, the restrictions on which for individual workers are established by Art. 96 of the Labor Code of the Russian Federation. The employer sets the specific amount of additional payment for night work on his own, but it cannot be less than 20% of the hourly tariff rate (hourly part of the salary) for an hour of work at night (part 2 of article 154 of the Labor Code of the Russian Federation, Decree of the Government of the Russian Federation of 22.07. 2008 No. 554 “On the minimum wage increase for night work”). It must be provided for in the labor or collective agreement or local regulatory act. Surcharges for night work may be provided for by industry tariff agreements.

If there is a need for an employee to work overtime at night, then such work (subject to the procedure for attracting, established by Articles 99 and 96 of the Labor Code of the Russian Federation) is paid both as overtime and as night work (Articles 152 and 154 of the Labor Code of the Russian Federation). At the same time, the amount of the additional payment should be calculated as follows: separately for overtime work and separately for night work. In this case, increasing coefficients are not multiplied, unless otherwise provided in the local regulatory act of the employer.

On April 16, 2012, the referent of the commercial department of Alpha LLC Rychkov V.V. was instructed (with his consent) to work overtime - from 20:00 to 24:00 (Moscow time) to organize video conversations with American partners in New York in a conference room to clarify important details of a joint business project to open a network coffee houses.

The employee has a five-day working week, the duration of the working day is 8 hours, from 11:00 to 20:00, a lunch break is 1 hour. The official salary of the referent is 50,000 rubles. The duration of normal working time in 2012 in accordance with the production calendar is 1986 hours.

According to the Regulation on remuneration in force at Alfa LLC, payment for overtime work is made for the first 2 hours in the amount of one and a half hours of the hourly part of the salary, and for subsequent hours - in double the amount, and additional payment for work at night is made c k = 0.2 hourly part of the salary. How should such overtime work be paid?

All overtime hours worked from 20:00 to 24:00 must be paid as overtime according to the rules of art. 152 of the Labor Code of the Russian Federation. In addition, the number of overtime hours worked by the referent at night (2 hours from 22:00 to 24:00) must also be paid as night time (part 2 of article 154 of the Labor Code of the Russian Federation).

Calculate the amount of payment for overtime, issuing it with an accounting statement-calculation (app

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