Labor Code, processing: the most necessary nuances in the concept. The concept of recycling, its causes

How is processing paid according to the labor code of the Russian Federation? Today, the 40-hour work week doesn't seem like such a workable achievement. Few even realize that the right to work 8 hours a day with two days off a week has been gained in a hard struggle between trade unions and production owners. After all, a few decades ago, the employer did not even think about how to pay for overtime hours and take care of additional rest time. However, the provision in Art. 91 of the Labor Code of the Russian Federation, the norm of 40 working hours does not mean at all that a valuable specialist cannot be involved in overtime work.

Recycling Code

There is a misconception that overtime is all the “extra” hours spent at work. Anything can be the reason for such labor enthusiasm: excessive workload, approaching deadlines for the completion of projects and reporting, improper work organization, and the like. But, if the employee himself, and not his employer, initiated the delay in production, then talk about overtime work in the context of Art. 99 of the Labor Code of the Russian Federation does not have to be said. After all, the main condition for recognizing the additional stay at the enterprise as processing will be the desire of the authorities to continue the process outside the normal working hours. Even if such a desire is based on real economic reasons or was the result of an unforeseen malfunction, the employee involved in the extended work will still be required to obtain written consent. True, the legislator has provided for several situations in which the disagreement of specialists will not matter (Article 99 of the Labor Code):

• elimination of the consequences of accidents, disasters and catastrophes;
• restoration of regular operation of housing and communal services, transport, communications and e-mail systems. networks;
• emergency work and measures to prevent disasters and disasters.

Only pregnant women, minors, disabled people and single mothers of young children received exemption from extended labor service.

Whatever the circumstances of attracting an employee to additional work, the authorities must remember to limit its maximum duration: no more than 4 hours a day, no more than two days in a row. If we are talking about shift work, then no more than 120 such overtime hours can be accumulated in a year, art. 99 TK.

120 hour limit exceeded, what happens?

Every year, the government approves the production calendar, which indicates not only holidays and weekends, the transfer of working days, but also the norm of working hours within each month, quarter and the whole year. For example, in 2017, the total annual duration of work should not exceed 1973 hours. If an emergency situation arose at the enterprise that required working out additional time, then the employer is obliged to distribute the extra hours in such a way that there are less than 2093 in a year.

If the authorities overlooked and did not send a trouble-free employee to rest on time, as a result of which the processing amounted to 121 hours or more, then it will be difficult to avoid a fine. The fact is that this violation is classified as administrative and threatens with a fine of up to 5,000 rubles for officials and for the enterprise itself, up to 80,000 rubles. A repeated violation already threatens with disqualification for managers and suspension of activities for the company, Art. 5.27 Administrative Code, 195-FZ. It is clear that such sanctions serve as a powerful incentive for employers, in accordance with the requirements of Art. 99 of the Labor Code, kept a strict record of working hours and did not load some workers more than others, or took care of expanding the staff.

No matter how the situation with the regulatory authorities for the enterprise develops, the employee must receive payment for processing over 120 hours in full, according to the rules of Art. 152 of the Labor Code of the Russian Federation.

Even if the employer violated the procedure for engaging in overtime work and exceeded the threshold of 120 hours per year, this should not affect the employee who worked in good faith. Payment is subject to all the time of processing (joint opinion of the Ministry of Finance and the Federal Tax Service (8)).

Overtime Payment Methods

The Labor Code fixed the minimum level of payment for overtime. How the overtime hours at each particular enterprise should be paid, the employer is obliged to fix in the collective agreement or in the labor contract with the employee. Here it is also relevant to remember that by a local act on the enterprise, management can only increase labor guarantees, it is unlawful to establish them in a smaller amount than in the Labor Code of the Russian Federation.

If the collective agreement does not indicate any additional motivating coefficients for paying hours of processing, then the accounting department will calculate compensation for the free time spent on the needs of the enterprise at the rates prescribed in Article 152 of the Labor Code. Namely, the first 2 hours are one and a half times the average hourly rate, and all subsequent ones are double.

40 hour week

The easiest way to record and calculate overtime pay for workers on a normal schedule (40 hours, daytime, weekdays). In this case, it is enough that the rater fixes the date of the extended work and its duration in the timesheet with the code "C" or "04". The code only says how many hours of processing are allowed per year and per day, how many hours they can have per month is not indicated there. Based on this, it can be theoretically calculated that the maximum overtime is possible at 84 hours in the longest month (two days of overtime for 4 hours with a break of one day for 31 days). In practice, it is unlikely that the employer will be able to obtain the consent of the employee to such difficult working conditions, especially since the trade union will not agree to such an agreement.

As an example of calculating payment for additional work, we can assume that the employee worked three additional days in a month, two - four hours, one - three. The salary of an employee is 15,000 rubles per month, there are 21 working days in it. Then the calculation will take place in several stages:

1. The division of hours worked into the first and subsequent hours. In the current case, more than 2 hours were worked three times. This means that 6 hours will be paid in one and a half size.
2. Determining the number of "followers". For three days, the employee has accumulated 5 hours, which can be described as the third or more in a day.
3. Direct calculation of the surcharge

15000/21/8=89.29 rubles - average hourly rate,

(6 * 1.5 + 5 * 2) * 89.29 \u003d 1696.51 rubles for the entire time of overtime work.

In the matter of fair payment for the labor zeal of employees and encouraging their loyalty, the main requirement will be the need for rigorous and clear reflection in the real time sheets of processing (forms T-12 and T-13)

Shift work schedule

The victory of the trade unions in the struggle for the right to consider the normal 40-hour working week does not mean a strict ban on the use of other duration of employment of employees in the enterprise. For those companies whose work specifics do not allow interrupting the production process or imply a round-the-clock need of the population for their availability, Article 103 of the Labor Code provides for the possibility of working in several shifts according to the approved schedule. When performing such work, it is difficult to coordinate the work of all employees during the week or month within the normal working hours. The legislator prudently allowed the employer to keep records of hours worked summarized within the period chosen by him (month, quarter, year), art. 104 TK. At the same time, management should carefully monitor that in the extended accounting period the number of hours worked does not exceed the quarterly or annual norm.

Drawing up a shift schedule with overtime hours included in it is regarded as a violation of labor rights and is fined under the same article. 5.27 of the Code of Administrative Offenses. In the case when the need to work longer arose unforeseen, it is worth knowing how the payment for processing is calculated with the summed accounting of working hours.

For example, the norm of hours in one of the quarters of last year was 454, the employee actually worked 480, of which 12 fell on a holiday. The employee's salary is 30,000 rubles. Here you need to know how to calculate the number of processing hours: 480-454-12= 14 hours. Since work on a holiday is already paid twice as much (Article 153 of the Labor Code), its duration is excluded from the total amount of overtime.

The most controversial moment arises when figuring out how to pay for the processing of hours according to the norms of Art. 152 TK. There are several opinions on how to determine the number of "first two hours" of processing in the summarized accounting. The code itself, unfortunately, does not provide clarification on this matter. Until 2012, they used Soviet practice and used a simple method:

• 14-2=12
• 2 hours is paid with a coefficient of 1.5 of the salary,
• the remaining 12 - at twice the average hourly rate.

But, by the Decision of the Supreme Court of December 27, 2012, this technique was no longer relevant. The calculation has become somewhat more complicated, but has become more objective. According to the court's clarification, the shift schedule cannot include overtime hours in advance, which means that, in fact, it can be clearly seen in the time sheet when the employee stayed at work outside the normal shift. Accordingly, you can calculate the number of "first" hours and the number of subsequent ones. In this situation, the need to accurately and as accurately as possible fill in the timesheet of working hours comes to the fore.

Overtime with reduced work hours

Some specialties and industries provide for a reduced working week. For them, working 36 or 24 hours in five working days is recognized as the norm, and any time in excess of it will be considered worked overtime. Some may wonder how many overtime hours are allowed per year for this schedule? The opinion that the annual limit of possible processing should also be proportionally reduced is erroneous. Just in this case, when calculating the number of additional hours, the norm should be taken not 1973 hours, but 1775.4 (with a 36-hour week in 2019). Then the maximum possible duration of labor in 2019 will be:

1775.4 + 120 = 1895.4 hours per year (including work on weekends and holidays).

Payment for processing will be carried out according to the current algorithm from the previous part (as with a shift work schedule).

Payment for processing on weekends and holidays

The double rate rule for work on weekends and public holidays is widely known among working people. This is the main consolation argument for those who are "lucky" to perform work duties instead of active celebration or recreation. Some believe that working overtime on a holiday will increase their earnings by another one and a half to two times. The opinion of the Supreme Court on this matter is different: an additional increase in payment and accrual of remuneration at the same time under Articles 152 and 153 of the Labor Code is regarded as excessive (7). Therefore, if the processing fell on a day off, then you need to pay for its entire duration in double the amount, Art. 153 TK.

An exception is allowed only in a situation where the employee has expressed a desire to receive a day of rest instead of money. In this case, the hours worked according to the schedule are not subject to payment, they are replaced by rest time. But with the payment for processing, the situation is different, the employer is obliged to accrue earnings during this time, but already in a single amount.

If the forced presence at work lasts until 22:00 or later, the employee will also receive a cash bonus for working at night. The answer to the question of how to pay for these processing hours also has its own characteristics.

For example, the shift of an employee according to the schedule ended at 20.00, due to the illness of a partner, he was forced to stay at the production site for another 4 hours, until 24.00. Therefore, the night period had 2 hours of work. The average hourly rate is 100 rubles. Then the tabulagram will show new amounts of earnings:

• 2*100*1.5= 300 rubles - for the first hours of extended work,
• 2*100*2= 400 rubles - for subsequent,
• 2*100*20%= 40 rubles - surcharge "night",
• Total: 740.00 rubles for 4 hours of overtime.

Replacing payment with rest time

Just as with holiday work, overtime hours may be compensated by days off during the reference period. So, if a quarterly segment of the year is chosen as accounting, then time off for processing must be provided during these three months. Postponing weekends to subsequent periods is prohibited.

When overtime pay is replaced by additional rest days, overtime hours will be paid at the rate of a one-time average hourly rate.

The problem of processing and questions related to how many hours of it are allowed per month, quarter or year is relevant, first of all, for those companies that cannot meet the 8-hour working day. An extended or continuous technological cycle makes it necessary to expand the scope of working time, and sometimes to turn to employees with an urgent request to spend their free time for the benefit of the enterprise. For managers of such industries, knowledge on the topic of charging for overtime and on the legally possible number of overtime hours per month is simply necessary.

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

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 Work 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 is indicated the number of hours and minutes worked overtime (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 (Annex 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, overtime work is paid 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 the extra 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

• HR and Labor Law

The labor legislation of the Russian Federation provides for the possibility of the employed population of the country to carry out their official duties in excess of the norm. Processing, or overtime work, can also be initiated by the employer, however, the consent of the subordinate is required (with a number of exceptions). Therefore, working citizens and their employers need to know how processing is paid according to the Labor Code of the Russian Federation.

The concept of recycling, its causes

The provisions of the Labor Code of the Russian Federation are designed to provide guarantees to the employed population of the country and protect their rights. The text of the document outlines the rules governing the work of employees in excess of the norm, in particular, the time frame of work is determined, the excess of which is fraught with excessive stress on the body and deterioration in the health of the employee. The norms of labor legislation also answer the question of how processing is paid and what it is. So, in Art. 99 of the Labor Code of the Russian Federation states that processing is considered to be that labor activity in which the subject works in excess of the time established by law (Article 91 and Article 94 of the Labor Code of the Russian Federation).

Both the subordinate and the employer can act as the initiator, but the second must have a good reason for this.

The employer can charge the employee with the obligation to perform work in excess of the norm only if he has previously acquired his written consent to such activities. If the company has a trade union, it is also necessary to obtain its approval.

The grounds for attracting subordinates to work overtime may be:

• the need to urgently complete an important project that has tight deadlines, ignoring which is fraught with serious losses for the company;
• the presence of an important production task;
• stoppage of the production process that requires elimination and can lead to adverse consequences (entailing a production accident or causing harm to the health of the team of workers);
• the need for urgent repair of equipment, buildings or any other mechanisms and structures directly related to production activities, ignoring which can cause a long downtime;
• the specifics of production, assuming. If the shift of the employee does not appear at the workplace at the set time, the employer has the right to ask the subordinate to stay for a certain amount of time.

The employer is prohibited from leaving the same employee at the workplace for two full shifts. In such circumstances, management should decide to replace the staff as soon as possible.

There are also situations in which consent to overtime work from a subordinate is not required. These include:

• cases of accidents and other disasters, as well as the need for prompt elimination of the consequences of emergency situations;
• accidents at facilities that are important for large groups of the population, in particular, water utilities, gas and power stations, boiler houses;
• accidents on highways, disruptions in communication;
• military conflicts, epidemics, fires, as well as natural disasters that require intervention.

Working hours according to the Labor Code of the Russian Federation

Based on Art. 94 of the Labor Code of the Russian Federation, the normalized working time for one employee per day is:

In addition to the norm of the standard working day, labor legislation also establishes restrictions on overtime work. So, the employer has the right to use the overtime work of a subordinate in the amount of not more than 4 hours for two days in a row.

Responsibility for exceeding the requirements of recycling standards

The Government of the Russian Federation annually determines, in accordance with which hourly labor standards are determined. The employer must control the processing of subordinates. Thus, the total amount of overtime worked by each individual employee should not exceed 120 hours per year. Otherwise, the management will receive a fine on the basis of Art. 5/27 of the Code of Administrative Offenses of the Russian Federation:

• from 1000 to 5000 rubles. for officials
• from 30.000 to 50.000 rubles. For the company.

In addition, it is also possible to suspend the production process for up to 90 days.

In circumstances where a person has exceeded the annual processing rate (120 hours), he is entitled to full compensation for the hours worked.

It is also important to note that the refusal of the employer to pay for the processing of subordinates is considered a gross violation of the law. Such circumstances are the basis for applying to the prosecutor's office or the labor inspectorate. The most effective measure to restore justice is to file a collective complaint with the labor inspectorate. However, for this, workers will need proof of overtime, that is, they will need to provide a working time schedule that records overtime.

Categories of workers who are prohibited from processing

The legislation establishes a list of groups of the employed population, which are strictly prohibited from engaging in overtime work, in particular:

• women expecting a baby;
• persons under the age of 18;
• employees employed in production with harmful working conditions;
• disabled people of groups 1 and 2;
• mothers of children under three years of age.

It is important to note that the last two groups of workers may be given additional hours of work, however, with their consent. In addition, employees will also need to sign two papers. The first involves agreeing to work overtime, and the second is the right to reject an offer of additional work. That is, the employee must be aware of his right to refuse such activities without adverse consequences for himself.

The procedure for processing processing

The procedure for processing employees is not regulated by law. However, based on practical activities, we can distinguish the following recommendations for the design of overtime work:

1. The written notice of the employee must contain information about the reasons for the processing, the date, as well as the time during which the person will perform specific duties. The employee certifies such a notice with his signature as a sign of consent to overtime work.
2. If overtime work involves the work of a group of subjects, it is more appropriate to draw up an Order on the involvement of subordinates in overtime work. The document in question should contain information about the reasons for additional work, the date and time for each employee separately. The consent signature is affixed in a separate column by each staff unit.
3. In the time sheet, additional work is marked with the letter "C". The number of overtime hours worked is also affixed.

In the event of an irregular working day specified in the employment agreement, overtime hours are not taken into account.

The procedure for involving employees in overtime activities must comply with the requirements of labor legislation. In particular, this procedure involves the following steps:

1. Giving notice to the subject.
2. Providing the subject with written notice of the right to refuse overtime work.
3. Certification of the specified documents by the employee as a sign of his consent with their content.
4. Execution of the corresponding order of the head.
5. Subsequent fixation of overtime worked by the employee in the time sheet.

The procedure for payment for processing under the Labor Code

The Labor Code of the Russian Federation contains information on the minimum wage for processing. Tariffs for overtime work, however, are individual for each enterprise. They are reflected in a collective agreement or an employment contract with a subordinate. These tariffs must not violate the law, in particular, must not be below the minimum value. They can be higher - the increasing factor is independently determined by the head of the company.

There is no maximum limit for processing fees.

Based on Art. 152 of the Labor Code of the Russian Federation, overtime work in the first two hours of weekdays is paid at one and a half times the standard salary of the subject, and all subsequent hours of processing are paid at a double rate.

A common question is how paid. In such circumstances, it is extremely important to keep a schedule of overtime hours worked. This is done by the heads of departments, based on the data of daily completed logs. Upon filling in all the papers, the schedule is transferred to the accounting department for further analysis and payments at the rates established in the legislation and locally at the enterprise.

It is also important to note how overtime is paid for shift schedules. With a shift schedule, it is not possible to establish a 40-hour work week, since the amount of working time per month is unequal. In such circumstances, it is necessary to proceed from the method adopted by the company to calculate wages:

• if there are hourly rates, they must be multiplied by the number of overtime hours worked and added to the employee's standard rate;
• in the case where the salary is based on the salary, it is necessary to calculate the earnings per hour, and then calculate the overtime.

Overtime payment under these regimes is carried out upon the end of the working period, which should not exceed one year. If the work activity involves harmful or dangerous conditions, payment for processing may be made after the end of the quarter.

Features of wages on weekends and holidays

Based on the provisions of labor law, work in is not considered overtime work. This provision is due to the fact that the payment for such work is already carried out in double volume.

Despite the fact that earlier legislation implied full-time payment to a subject who goes to work on a holiday or non-working day, regardless of how much he actually worked, in modern conditions the employee will receive wages in proportion to the time that he actually worked .

Thus, processing can be paid both in the minimum amount determined by law, and in excess of it, but not lower. The employer and subordinates need to be informed about the rules and procedures for engaging in overtime work, as well as about the subsequent payment for processing, so that the activities carried out do not violate established legislative norms.

To answer this question, it is important to understand what recycling is.

Work: what is the norm by the hour

According to labor law, for each employee, the duration of the working time must be established, during which he is obliged to fulfill the duties assigned to him. The generally accepted norm is considered to be a 40-hour week. For certain categories of workers, it is even less. However, there are situations in which an employee may stay late at work. We are talking about the irregularity of the working day (fixed in the employment contract) and overtime work, which requires payment for processing. Delay at the workplace due to unfulfilled duties assigned to the employee on time is not considered processing. An offer of paid overtime can only come from an employer.

Processing (aka overtime)

If the representative of the employer takes the initiative to involve the employee in performing work outside the established time period for work, he involves him in overtime work at the end of the worked - day or night - shifts. Overtime will also be considered work less than 8 hours a day for workers who work on and it exceeds the norm established for them. As a rule, processing is of a non-permanent nature, in particular, it is applicable during the period of supply of materials, reporting. Practice, including judicial practice, shows that processing cannot be planned in advance, this is a kind of forced measure. Enforcement of the decision may require the consent of the employee in writing. No representative of the employer may contain provisions that, in the event of appropriate circumstances, the employee is obliged to consent to overtime work.

What processing time is possible?

Since processing involves additional labor costs, it must be controlled, officially recorded and paid for accordingly. The employer should ensure accurate records of working hours for each employee. A unified form of accounting is a time sheet in which an alphabetic (“C”) or numeric (“04”) code is entered indicating the processed time up to minutes. Fixing the duration of work in excess of the norm is necessary in order to avoid a 4-hour excess for two days and a 120-hour excess for a year. These rules also apply to contributors. For car drivers who are subject to summary records of working hours, scheduled work + overtime work cannot be more than 12 hours, except in situations where it is necessary to complete the flight or wait for a shift.

Who is not eligible for overtime work?

The processing of working time, for which it is obligatory, cannot concern a number of employees. No one has the right to involve in the processing of persons who have not reached the age of majority, pregnant women. Women who are dependent on children under the age of three, disabled people can work overtime with written consent and in the absence of contraindications for health reasons (if there is a corresponding medical opinion). Their familiarization with the possibility of refusal must be recorded against signature. Similar guarantees apply to a parent who is raising children under the age of five without his soulmate, employees with disabled children and those who care for sick members of their families with a medical certificate.

Under what circumstances is it necessary to obtain written consent for processing from an employee?

Payment for processing under the Labor Code of the Russian Federation must be made with the mandatory consent of the employee if:

For technical reasons, there was a delay in production, the employee did not complete or did not complete the work on time within the working hours, and the stoppage may threaten the life and health of people, lead to damage or destruction of property;
- there are malfunctions in mechanisms, structures, the lack of repair in which can cause a stop in the work process for many workers;
- the replacement employee did not show up for work, and the process stoppage is unacceptable; at the same time, the employer must take all necessary measures to replace the employee.

These circumstances do not oblige the employee to agree to processing (he may refuse). Refusal should not be regarded as a violation of discipline at work.

When does an employer not require consent?

Payment for processing will be made without a written consent to the implementation of overtime work when:

The need to carry out work to prevent a catastrophe, accident at work or eliminate their consequences;
- the need to carry out work aimed at eliminating accidents in centralized systems of gas, heat, hot and cold water supply, sanitation, communications, lighting, transport;
- the need to carry out work in cases that endanger the lives of the population (military or state of emergency, natural disasters).

Under these circumstances, the employee's refusal is unacceptable.

Penalties

The lack of appropriate consent to perform overtime work, as well as failure to keep track of processing time, may result in an administrative penalty (fine, suspension of the organization's activities):
- for officials - 1000-5000 rubles;
- for legal entities - 30,000-50,000 rubles. or suspension of the organization's activities for up to 90 days.

Documentation of processing

Hourly processing, wages for it must be properly executed. Sometimes it may be necessary to write a report to the manager, which should indicate the circumstances of the incident and the need to involve one or another employee in overtime work. Then you should notify the employee about the need for processing by sending him a written notice or familiarizing yourself with the report against signature, if necessary, obtain consent, then issue an order to pay for processing. There is no unified form of such an administrative document. It can be drawn up arbitrarily with the obligatory content of the reasons for processing, who and for how long should be involved in the work. The order is issued for each case of processing. It cannot be prepared in advance for a certain period with an indication of the employees.

Labor law states that the employer should be properly compensated for hours of work in excess of the norm. We are talking about both overtime work and work on weekends, holidays, at night. The answer to the question: “How are overtime paid according to the Labor Code of Russia?” - lies in article 152 of the document on labor law, which speaks of the need for the employer to provide for the first two hours of work one and a half, for the next hours - double pay. Higher coefficients are also possible if this is reflected in the local regulatory framework of the enterprise, collective or labor contracts. Also, the time worked can be replaced by rest equal to or exceeding the hours of processing. The choice of one or another method of compensation is the prerogative of the employee, not the employer.

In practice, you can often encounter a number of questions about how overtime is paid, which are not explained by the Labor Code, relating, for example, to situations where overtime falls on weekends and holidays or at night. So, in the case of processing that falls at night, must be paid (at least 20%) and separately for overtime work. Overtime on a weekend or holiday will only count as work on a weekend or holiday with corresponding double pay. Payment for overtime with a shift schedule is calculated based on the excess of the norm of working hours for the accounting period. Everywhere it is calculated differently, however, judicial practice determines the approach in which the first 2 hours of the total number of overtime hours in the accounting period should be paid in one and a half, all the rest - in double size. Initially, the employer should document the procedure for paying for overtime, that is, what base for the application of multiplying factors will be taken into account (bare salary (tariff rate) or salary + allowances). To pay for overtime, it is better to prepare a detailed accounting statement-calculation. In case of overworking hours in excess of the maximum allowable rate, the employee must receive compensation in full.

What is considered "recycling"? This is the first question that arises when considering the topic of overtime work. The answer to it can be found in: “overtime work is work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and with the summarized accounting of working time - in excess of the normal number of working hours for the accounting period.

Do not forget that it is possible to involve an employee in work after the time specified in c only with the written consent of the subordinate. In addition, this is allowed only in cases provided for in Article 99 of the Labor Code. For example, if necessary, finish the work that has been started, if its failure to do so may result in damage or destruction of any property.

On a note

It is possible to involve an employee in work after the time specified in the labor contract only with the written consent of the subordinate.

However, sometimes you do not need to ask the consent of a specialist for overtime work. For example, in the performance of work necessary to prevent a catastrophe, an accident or eliminate their consequences. A complete list of cases when it is not necessary to be interested in the opinion of an employee can be found in the article mentioned above.

However, we must not forget that workers of certain categories cannot be involved in processing under any circumstances. These include: pregnant women, adolescents under eighteen years of age, other employees in accordance with the laws of the country. But the involvement in overtime work of disabled people, women with children under the age of three, is allowed only with their written consent and provided that this is not prohibited by them for health reasons. At the same time, they must be familiarized with their right to refuse processing against signature.

And one more thing: the duration of overtime work should not exceed for each employee four hours for two consecutive days and one hundred and twenty hours a year. the company is required to keep records of processing. Do not forget that liability is provided for violation of labor legislation (). This rule establishes sanctions up to the suspension of the company's activities.

Overtime calculation

Now we know what counts as recycling. Next, consider the question of how to pay for such work. All processing is paid in accordance with: for the first two hours at least one and a half times, for the next hours - at least twice. That is, the law establishes only the minimum amount of additional payment, but specific figures need to be fixed in a local regulatory act or an employment contract.

On a note

If you need to call an employee for service on a weekend or holiday, then you need to pay for such work exactly as work on a weekend (holiday).

Please note that the specific procedure for calculating the hourly wage rate of an employee on a salary must be fixed in an employment contract with an employee or in the regulation on remuneration adopted by the organization.

Do not forget: the employee has the right to receive additional rest time instead of increased pay for overtime work. In this case, the duration of the day off cannot be less than the processing time. However, there is one caveat: even if an employee is given additional rest time, this does not mean at all that he does not need to pay overtime. In this case, the hours of processing must be paid in a single amount, because the day off only compensates for the increased pay.

Work at night and on holidays

One more thing: if an employee, then you need to pay for his work both for overtime and for night time (only for those hours that fell on the period after 22:00). Let me remind you that the extra payment for night work cannot be less than 20 percent of the hourly tariff rate calculated for an hour of work at night.

But if you need to call an employee to work on a weekend or holiday, then you need to pay for such work exactly as work on a weekend (holiday) day. That is, in accordance with Thus, salaried specialists are paid in the amount of at least a single daily or hourly rate in excess of the salary if the employee worked within the monthly norm of working hours. If the specialist was employed in excess of the monthly norm of working time, then payment is made in the amount of at least double the daily or hourly rate in excess of the salary.

In conclusion, I note that if the authorities require a certain employee to work more than 40 hours a week, it is enough to establish an irregular working day in the employment contract with him. However, of course, the employee must agree to such a regime.