Sometimes you need to ensure uninterrupted production around the clock. The question arises of involving workers at night and paying for their labor. There are several important nuances that not every accountant knows about, let alone the employees themselves. How to prevent "sit on your neck" and get a surcharge for night hours?
Work at night in terms of law
Night work is regulated by articles 96 and 154 of the Labor Code. First of all, he clearly defines the concept of night time - according to the law, this time is from 22 to 6 in the morning.
An important point: at night, the employee has the right to work 1 hour less, but only if he was not specially accepted for work on the night shift. In this case, the duration of the night shift is equal to the day.
In addition, the night shift is not reduced for employees who already work less than 8 hours - in accordance with article 92 of the Labor Code. These are adolescents, people with disabilities and workers with harmful working conditions.
Often at the enterprise they establish a shift regime and a 6-day working week - 1 day off must be mandatory. Moreover, the surcharge for night hours is still charged, although a night shift is equivalent to a day shift in duration.
Who should not be involved in night work?
You can’t work at night:
In the latter case, there is an exception: adolescents under the age of 18 can be involved in night work and receive a surcharge for night hours, but only when it comes to creating or performing a work of art - for example, young actors can perform in the theater or act in films, where work often goes at night.
Who should give written consent?
There are categories of workers whose involvement in work at night only with their written consent:
mothers of children under three years old;
disabled people or parents of disabled children;
caring for a sick relative - confirmed by a medical report;
single mothers or single fathers with children under 5 years old;
guardians of children under 5 years old.
Moreover, these employees must be notified in writing and signed on their right to refuse to work at night.
To attract other workers to night work, it is enough to notify them in writing in advance. Moreover, the law does not establish for what time before the start of the night shift, they must be notified.
How to calculate the surcharge for night hours and how to be guided?
The government believes that night work should be paid at least 20% higher than during the day. Moreover, surcharge for night hours with a shift schedule is also charged. This requirement is established by Decree No. 554 of July 22, 2008.
The calculation of the surcharge for night hours is determined by Article 154 of the Labor Code. You will need to know the following initial data:
hourly rate - according to the employment contract;
time actually worked, in hours - according to the time sheet;
the correction factor adopted by the organization (not lower than 1.2 - this is a requirement of the Labor Code).
An important point: the size of the surcharge for night hours should be fixed in the collective labor contract. It is the same for all employees - regardless of their position or position in the company.
To get the cost of time worked, you just need to multiply these 3 digits.
Examples of calculating nighttime supplement
Imagine a certain conditional Mr. I., who, according to the time sheet, worked at night for 5 hours - from 22.00 to 03.00. In the collective labor agreement approved by the organization, an extra charge for night hours is accepted with a shift schedule of 50% of the tariff rate. The basic tariff rate of I. is 150 rubles per hour. Accordingly, for his night work, he will receive 979 rubles - already after deducting 13% of personal income tax.
Now imagine a similar situation, only in the collective labor contract the percentage of surcharge for night hours is not specified. Then it will be determined in accordance with the Labor Code and will be 20% of the base tariff rate. Under the same conditions, the employee will receive only 783 rubles - also after deduction of 13% personal income tax.
The last example illustrates how important it is to carefully read the terms of an employment contract. It is quite possible that in the second example, when applying for a job, I. promised 1.5 or even 2 rates for night work. However, he can no longer prove anything.
It turns out that you can motivate the employer to pay more than what is prescribed by law. How is this done in practice?
Can the allowance for night work be higher than 20%?
Often, the employer sets his own coefficient. The law does not prohibit this. The main thing is that it should be no less than 1.2.
On average, 1 hour of night work in the market costs 1.5 hour tariff rates. And gradually it will approach 2 - this is the ratio that most employees working at night call fair.
This happens under the pressure of trade unions. The fact is that too many workers consider 20% insufficient compensation. To keep the team and avoid the strike, the employer has to make concessions. This once again emphasizes the importance of primary trade union organizations - when the majority opinion is expressed in an organized manner, one has to reckon with it.
But in companies where there are no unions, the employee has to defend his rights alone. Moreover, there is almost no chance to somehow influence the opinion of the head, because the law in this case is on the side of the latter.
There is only one thing left - to change the employer. Therefore, the presence of an internal union ensures that this organization not only respects the rights of workers, but also listens to their opinions.
Is the allowance due for black and gray salary?
There are no such concepts in the legislation as black and gray salary. But 90% of employees of small private companies get it.
The so-called white salary is typical only for government agencies and “blue labels” - large companies for which a reputation is worth more than dubious savings.
However, with this approach, the employee is only minimally protected by law (with a “gray” scheme) and can only guarantee with certainty a small portion of the due payment. After all, the Labor Code and regulatory documents, as well as other guarantees and benefits, establish the minimum surcharge for night hours. Accordingly, in order to use them, you need to be inside the legal field - all agreements with the employer must be formalized.
What is a black salary?
Black salary is also gradually becoming a thing of the past. Today it is unprofitable to hire employees without registration - the state imposes too large fines for this. Moreover, both for the enterprise and for officials. This is dangerous for the employee himself - he is responsible for concealing income and non-payment of personal income tax.
In addition, an employee without registration is completely dependent on the will of the employer - you can remain without a salary at all. In this case, one does not have to talk about any social guarantees. Including the allowance for night work. There would be at least something to get ...
What if the employer deceived you?
In fact, such an employee has only one chance to get his own - to prove in court that he was misled by the employer - an employment contract was concluded with him, and the employer did not officially hold it.
However, in this case, at least, the testimony of colleagues is needed that the employee really worked the stated time, as well as the contract concluded with him.
Other evidence will come in handy: audio and video recordings of the employment process, recordings from surveillance cameras in the office, recordings from surveillance cameras in neighboring buildings - this will help to record the time of arrival and departure of the employee, as well as to prove the fact of his being in the office of the company. Compensation for non-pecuniary damage will also require evidence.
Even if successful, the lawsuit will stretch for several months. It will take some more time for the employer to execute the court decision - to fully pay for the work done.
In any case, few people will be pleased to “knock out” their salary in this way. Therefore, it is better to prevent this situation.
Why is gray salary dangerous?
Gradually, employers are moving away from the black wage scheme. Lawyers have found a loophole in the law - now the gray scheme for paying the required compensation is in fashion.
In this case, the employee is formalized. They even conclude an employment contract with him - formally, there is nothing to complain about. But only the contract does not indicate the entire salary, but only part of it. Most often, this is the minimum wage - 11,163 rubles for 2018, however, depending on the region, it can differ in a big way. So, for Moscow the minimum wage is 18,742 rubles.
The rest is paid in the form of travel expenses for which insurance premiums are not charged, or in an envelope. Such an employee can count on social guarantees, but only within the “white” part of the salary.
Each employee must remember that when he receives his salary “in an envelope” he breaks the law - he hides part of his income from paying personal income tax and can be held responsible for it at any time, just like his employer. In addition, insurance premiums are not transferred in full, which means that the future pension will be less.
In practice, however, it is that thousands of people work in this way. And this doesn’t really bother them, as long as everything is good at work. But if the relationship with the boss deteriorates, or the employee decides to quit for other reasons, problems begin.
As a rule, he will not only not receive additional money for night work from the informal part, but also the entire gray part of his salary.
In addition, the employee becomes a hostage to the employer, who dictates his conditions and does not take into account the labor code and the formal contract. So, the working day in such companies often lasts up to 16 hours instead of the prescribed 8, and no one will pay overtime. Do not like it - quit. Only get the official salary.
In such firms, a constant staff turnover is often specially supported — savings on salaries and taxes at the end of the year are substantial.
In order not to fall into a similar situation, do not settle for a salary “in an envelope”. It’s better to get less, but officially - that’s how you are protected by the law.
Why do workers agree to such enslaving conditions?
Why do employees agree to different schemes of deception, because it is unprofitable primarily for themselves? The thing is that employers shamelessly use the illiteracy of the population in legal matters.
It simply doesn’t occur to many that, following the boss’s request, they violate the law and may be held liable for this, even criminal. In addition, the majority prefers to get more now than to think about their own pension, because it will not come soon.
Another reason is that in the general case taxes make up 43% of the payroll - 13% of personal income tax and 30% of social contributions. This is a lot.
Formally, only personal income tax is deducted from the employee’s earnings, the employer accrues insurance premiums additionally - from his own funds. However, in practice this is not entirely true.
How does everything really happen?
Imagine that a company is ready to pay an employee 100,000 rubles a month. Personal income tax will be deducted from this amount - 13%. There are 87,000 rubles left. However, the company must take somewhere another 30,000 rubles and pay social contributions.
Everything is simple - instead of 100,000 rubles, the employee will have only 70,000 rubles. Another 13% of personal income tax will be deducted from this amount - 9,100 rubles. Total in the hands of the employee will receive 60,900 rubles. And the employer will pay even less than originally wanted - only 91,000 rubles.
This is if you do everything officially. However, if the average employee’s salary in the market is 100,000 rubles, it will be almost impossible to find a specialist for that kind of money.
There is a second option. The employee is offered to conclude an employment contract with a minimum salary of 18,742 rubles (for Moscow), and receive the rest of the salary “in envelope”. In this case, “on hand” the employee will receive almost 92,000 rubles. The monthly difference of 31,100 rubles is a significant incentive to meet them.
So they drive naive simpletons into a trap. And when the employee understands what happened, it is too late. He worked for 3-4 months. The company regularly pays the salary, but "in the envelope" he has not received anything yet. Every day he hears tales of temporary difficulties, works overtime and at night, but cannot quit - it is a pity to lose money, which he most likely will never see.