In an unstable financial and economic climate, many employers seek to optimize labor costs. To do this, a reduction in staff.
Meanwhile, the tasks that the dismissed workers performed remained. Enterprising employers transfer them to the shoulders of employees who are not subject to reduction, and do not establish any additional payments for the performance of these tasks. Such actions are illegal, because workers have to work more than the time set by the standards in order to be in time. Such employee activities are called overtime. Consider its features.
Definition
According to article 99 of the Labor Code of the Russian Federation, overtime work involves the fulfillment of duties by an employee beyond the duration of the daily shift established for him by the norms. At some enterprises, a summarized time record is kept. In such cases, according to the Labor Code of the Russian Federation, overtime work is considered to be the performance of duties in excess of the normal number of hours for the billing period. The norm is 40 hours a week.
Special categories
For some workers, the labor law sets a shorter work duration:
- For minors - 24-35 hours a week.
- For persons whose working conditions are harmful (3-4 tbsp.) Or dangerous, - no more than 36 hours / week. Assessment of production conditions is carried out by a special commission. Based on the results of the analysis, an act is drawn up.
- For disabled 1-2 groups - no more than 35 hours / week.
Abbreviated shifts are also set for pedagogical and medical workers, women working in the North and in the territories equivalent to it.
Accordingly, for all these categories of employees, overtime work is recognized as professional activity carried out in excess of established standards. It requires additional payment.
Important points
It should be said that the involvement of workers in overtime work is carried out on the initiative of the employer. Employees have the right to stay at the enterprise of their own free will. However, such cases are not considered overtime.
The employer must organize an accurate record of the time during which the citizen is at the enterprise. It must be remembered that overtime work should not exceed 120 hours per year.
Legislation
TK does not allow for forced involvement in overtime work. However, the law provides for a number of cases where the employer has the right to detain his employees. They are fixed in 2 parts of article 99 of the Labor Code. According to the norm, overtime work is allowed with:
- Necessities to complete the started production operation, the end of which was not possible due to unforeseen delays during the shift. Overtime work in this case is justified if its non-fulfillment can lead to damage or loss of property (including that owned by third parties, but held by the tenant in custody), municipal or state property, and a threat to the health or life of the population.
- Carrying out repair or restoration of mechanisms, structures, if their malfunction can lead to the cessation of work of most of the personnel of the enterprise.
- The absence of a changing employee to continue working, the interruption of which is unacceptable. In such cases, the employer must promptly take measures to replace a working citizen with another employee.
In all these cases, the employer must obtain consent from the employees for overtime work. In this case, the opinion of the union must be taken into account.
Exceptional Cases
In 3 parts 99 of the article of the Labor Code, circumstances are fixed under which engaging in overtime work is allowed without obtaining consent from employees:
- Implementation of measures necessary to prevent an accident, catastrophe, eliminate their consequences.
- Carrying out work aimed at eliminating unforeseen circumstances, as a result of which the normal functioning of the trunk (centralized) systems of gas, water, heat, electricity, communications, transport is disrupted.
- Implementation of measures due to the introduction of martial law or emergency, emergency work in emergency situations. It is, in particular, about floods, fires, other natural disasters, as well as other cases in which the life or health of the population is endangered.
Overtime pay
The Labor Code provides for 2 options for compensation to an employee for labor in excess of established standards. The first way is increased payouts.
Overtime work is paid for the first 2 hours - one and a half times, and for the next - no less than double. Specific amounts of payments can be fixed by collective agreement, internal regulatory act of the enterprise, labor contract.
Unfortunately, the TC does not define a unified procedure for calculating overtime pay. Therefore, enterprises install it independently, taking into account the specifics of the activity. Some organizations calculate the cost of one hour of overtime based on the amount of earnings for the month in which the employee performed it and the number of hours provided for this employee, according to the production calendar. At other enterprises, the calculation is based on the monthly salary and the average monthly number of hours.
As a result, when using different methods of calculating overtime pay, completely different amounts can be obtained. In order to avoid conflicts, it is advisable to fix the selected calculation rules by an internal regulatory act.
Summarized Time Tracking
Using it is often difficult to determine which jobs are overtime and which are normalized. Accordingly, difficulties arise in calculating compensation. To solve the problems that arise, one should be guided by the Recommendations on the application of flexible working hours in institutions, organizations, enterprises of the national economy, approved in 1985.
In accordance with paragraph 5.5 of this normative act, when performing overtime work by citizens who are transferred to a flexible work regime, hourly work records are carried out in total relative to the specified billing period (month, week). Accordingly, only those hours that are worked out in excess of the norm provided for a specific period will be recognized as non-standard.
Accordingly, overtime work of 2 hours will be paid in one and a half times, and the next hours in excess of the norm - in double.
Rules Practice
Based on the above information, the following calculations can be made. Suppose a citizen worked 43 hours overtime in 20 days of the reporting period. Of these, 40 hours will be compensated in one and a half size, and the remaining 3 - in double.
The rules enshrined in paragraph 5.5 of the Recommendations were recognized as true by the RF Armed Forces, despite the fact that the Ministry of Health provided slightly different explanations. Thus, in a Letter of 2009, the department recommended that overtime work be settled at the end of the reporting period. For example, if an employee had worked out excess of the norm 19 hours, then 2 of them are paid in one and a half, and 17 - in double size.
Overtime weekend work
According to the general rules enshrined in Article 153 of the Labor Code, labor activity on non-working (including holidays) days must be paid in double amount. In practice, the question often arises - how to calculate the earnings of a citizen involved in overtime work? Explanations on this subject are present in the Decree of the State Labor Committee of 1966.
According to the normative act, when calculating hours worked overtime on a weekend or holiday, they should not be taken into account, since this labor activity is already paid twice.
Additional days of rest
According to the provisions of Article 152 of the Labor Code, an employee may refuse monetary compensation. Instead, the employee can take extra rest. Its duration should not be less than the time worked overtime.
Nuances
Special rules apply to:
- Employees, contractors, subsidiaries of FIFA.
- Football Confederations and National Associations.
- RFU.
- Organizing Committee "Russia-2018" and its subsidiaries.
If the activities of the employees of these organizations are associated with the implementation of sports events, overtime work is compensated by additional rest. Its duration should not be less than the time worked out in excess of the norm established by the plans. Another procedure may be enshrined solely in an employment contract.
In relation to these employees, the procedure provided for by Article 152 of the Labor Code does not apply.
Who can work like that?
The legislation enshrines a list of persons whose engagement in work beyond established norms is not allowed. It is defined in paragraph 5 of article 99 of the TC. According to the norm, the employer is not entitled to employ overtime pregnant employees and minors. The exception is athletes under the age of 18, creative workers of the media, cinematographic organizations, video and television crews, theater / concert institutions, circuses, as well as other persons involved in the performance / creation of works. A complete list of relevant positions and professions is approved by government decree No. 252 of 2007.
Attracting overtime work to women who have minors (up to 3 years old) dependents, disabled people is allowed only with their consent. It is given in writing. At the same time, these citizens must have a medical certificate stating that overtime work is not prohibited by them for health reasons.
Women with children under 3 years of age, as well as disabled people, have the right to refuse to work in excess of the norm. This opportunity should be explained to them by the employer for signature.
Similar rules for engaging in overtime work are established for:
- Single parents raising children under 5 years old without a spouse.
- Employees with a dependent disabled child.
- Workers caring for sick relatives.
Employee Consent
At some enterprises, the content of the labor contract includes the condition that, if necessary, a citizen, on the basis of an order, will be employed overtime, including on holidays / weekends, and also at night. The leaders of such organizations believe that, having fixed this clause in the contract, they have already automatically taken the consent of the employees. However, this is not the case.
Such a clause cannot be fixed in an employment contract. Each time there is a need to attract a citizen to work overtime, it is necessary to obtain his written consent. This position is confirmed by judicial practice.
To obtain consent, a notification is sent to the employee. It gives reasons for the need for overtime work. When notifying women with children under 3 years old, fathers / mothers raising a child without a spouse, employees with disabled children or those with disabilities, they must be informed about the possibility of refusal.
What to do if the employee has not given consent?
If an employee refuses to work overtime, the employer will have to find a replacement. At the same time, the law prohibits the application of disciplinary sanctions to an employee who has not given consent. Otherwise, they will be unlawful.
These rules, however, do not apply in cases where the consent of the employee is not necessary.
Union involvement
Attracting staff to work overtime is carried out taking into account the position of the elected body of the trade union organization, if the corresponding case is not regulated by the norms of the Labor Code. The rules for union participation in resolving the issue are enshrined in article 372 of the Code. Consider them.
Before accepting an order to attract an employee to work, an overtime employer sends his project with justification to the union. The five-day elected body of this organization draws up a reasoned opinion and passes it on to the employer.
In case of disagreement of the trade union with the draft order, a proposal is sent to the employer to amend it. The employer, in turn, can agree with him or within three days must hold a joint meeting with the union to reach consensus.
If a mutually acceptable solution is not found, the disagreements must be formalized in a protocol. After that, the employer has the right to issue an order to attract staff to work overtime. This act can be challenged in the State Labor Inspectorate or in court.
Contents of the order
The standardized form of this document is missing. Therefore, the company must develop its own form, taking into account the requirements of the legislation for such documents. The order must specify:
- Full name and position of employee.
- The reason for engaging in overtime work.
- Start date
- Employee consent information.
The employee gets acquainted with the order and signs.
The document can also give the amount and procedure for paying overtime if this is enshrined in a local legal document.
The amount of payment may be established by agreement of the parties.
In some cases, the employer issues a separate order to award compensation for overtime work. This may be due to the fact that its appearance was not determined before the start of processing.
additional information
Overtime hours must be reflected in the time sheet. For this, the document provides a code of "C" or "04". This code indicates the number of hours and minutes processed.
If a time wage is set for an employee, for each hour of the first 2 overtime hours, a 50% rate is added to the main salary, and 100% for each subsequent hour.
If the payment is piece-rate, then the processing time, as well as products released within this period, must be paid according to the general rules, plus the procedure established for the time-based work schedule is in effect.
If overtime work is carried out at night, payment is made both for processing and for night work. The minimum surcharge for each non-standard hour at night is 20% of the tariff or part of the salary.
A written explanation of an employee may be evidence of overtime. In addition, waybills with appropriate marks and other supporting documents may be provided.
Is extra vacation payable?
There is no definite answer to this question. As established in Article 153 of the Labor Code, as compensation for work overtime, an employee may receive additional rest instead of increased pay. At the same time, the legislation does not prohibit the payment of rest days. Consequently, the employer has the right at his own discretion to issue the employee and monetary compensation.
The procedure for providing rest
There are no clear rules in the legislation. However, paragraph 39 of the Armed Forces Decree of 2004 clarifies that unauthorized use of vacation days and time off is considered absenteeism and may constitute grounds for termination of the contract. In this case, the provisions of Art. 81 shopping mall.
The unauthorized use of rest days is not recognized as a failure if the employer, in violation of the obligation established by law, refused to provide the employee, and the time of their use did not depend on the employer's discretion. Failure to provide additional rest for overtime work is unlawful if the employee chose it as compensation.
Finally
Experts recommend not involving staff in overtime work without serious reason. If nevertheless such a need arose, it is necessary to observe the order established by the Labor Code.
Engaging an employee in overtime work is considered illegal if his consent is not available. The exception is cases expressly provided by law. In addition, in certain circumstances, it is necessary to seek the opinion of the elected body of the union. Equally important is the state of health of the employee. The employee should not have contraindications.
The employee must be provided with compensation. This may be a cash payment or additional days of rest. The evasion of the employer from the performance of this obligation is unlawful. The employer, at its discretion, can provide both material compensation and rest.