Overtime work: nuances of involvement and payment. The procedure for involving employees in overtime work - step-by-step actions of the employer

Everyone knows that recently, against the background of the instability of the financial and political climate in our country, organizations have been trying to reduce their costs. Sometimes such a reduction, as employers believe, is possible only by laying off workers. However, someone needs to do the work. Therefore, the remaining employees work, as they say, tirelessly, and in most cases such overtime is not paid or compensated in any other way. But if such an employee, forced to work in two shifts, appeals to the State Labor Inspectorate or the court, then they, of course, will side with him, because this is nothing more than overtime work. Today we will tell you what is meant by overtime work, what guarantees and compensations are provided to employees performing such work, and how to register for involvement in it. In accordance with Art. 99 of the Labor Code of the Russian Federation, overtime is recognized as work performed by an employee at the initiative of the employer outside the working hours established for the employee - daily work (shift), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period.

Let us remind you that according to Art. 91 of the Labor Code of the Russian Federation, the normal working time is 40 hours per week. However, for some categories of workers, reduced working hours are established, which is normal for them (Article 92 of the Labor Code of the Russian Federation). These include, in particular:

— minor workers — from 24 to 35 hours a week depending on age;

- disabled people of group I or II - no more than 35 hours per week;

- employees whose working conditions at their workplaces, based on the results of a special assessment of working conditions, are classified as hazardous working conditions of the 3rd or 4th degree or hazardous working conditions - no more than 36 hours per week;

— women working in the Far North (Article 320 of the Labor Code of the Russian Federation);

— teachers (Article 333 of the Labor Code of the Russian Federation);

— health workers (Article 350 of the Labor Code of the Russian Federation).

Note. If an employee is late at work on his own initiative, such work is not considered overtime.

When inviting employees to work overtime, it is worth remembering that the duration of such work should not exceed four hours for each employee for two consecutive days and 120 hours per year. To do this, the employer is obliged to ensure accurate recording of the duration of overtime work for each employee.

When is it possible to engage in overtime work?

The Labor Code prohibits forced labor, and its norms are intended, among other things, to ensure the right of every employee to fair working conditions. Part 2 of Art. 99 of the Labor Code of the Russian Federation limits cases when an employer can involve an employee in work beyond normal working hours:

- if it is necessary to perform (finish) work that has begun, which, due to an unforeseen delay due to technical production conditions, could not be performed (finished) during the working hours established for the employee, if failure to perform (non-complete) this work may lead to damage or destruction of the employer’s property (in including property of third parties held by the employer, if he is responsible for the safety of this property), state or municipal property, or create a threat to the life and health of people;

— when carrying out temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the cessation of work for a significant number of workers;

- to continue work if the replacement employee does not show up, if the work does not allow a break. In this case, the employer is obliged to immediately take measures to replace the shift worker with another employee.

In such situations, the employer will have to obtain written consent from the employees. We'll tell you how to do this a little later.

However, an employer can involve an employee in overtime work without his consent. This is possible (Part 3 of Article 99 of the Labor Code of the Russian Federation):

— when performing work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;

— when carrying out socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) sewerage systems, gas supply systems, heat supply, lighting, transport, communications;

- when performing work the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (in case of fire, flood, famine, earthquake, epidemic or epizootic) and other cases posing endanger the life or normal living conditions of the entire population or part of it.

Note! In any other cases, involving an employee in overtime work is permitted with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.

Compensation for overtime work

How an employer must compensate for overtime work is established in Art. 152 Labor Code of the Russian Federation. In particular, this norm provides two options.

1. Increased pay. Overtime work is paid for the first two hours of work at least one and a half times the rate, for subsequent hours - at least twice the rate. Specific amounts of overtime pay may be determined:

— collective agreement;

— local regulations;

- an employment contract.

Unfortunately, the Labor Code does not define the procedure for calculating compensation: someone calculates the cost of an hour of overtime work based on the salary for the month in which it was performed and the normal number of working hours for a given employee according to the production calendar for that month, while others based on the salary for the month in which the work was performed and the average monthly number of working hours, determined based on the number of working hours according to the production calendar for a specific calendar year and the number of months in the year. As a result, when calculated using different methods, different amounts may be obtained. Therefore, in order to avoid disputes with employees, we recommend establishing the procedure for calculating overtime pay in local regulations.

Let us note that most questions arise in the case of payment for overtime work when recording working hours together. To solve them, we advise you to refer to the Recommendations on the use of flexible working time regimes at enterprises, institutions and organizations in sectors of the national economy, approved by Resolution of the USSR State Committee for Labor No. 162, All-Union Central Council of Trade Unions No. 12-55 of 05/30/1985.

According to clause 5.5 of these Recommendations, in the case of overtime work performed by persons transferred to the flexible working time regime, hourly accounting of this work is carried out in total in relation to the established accounting period (week, month), that is, only hours worked in excess of those provided for this are considered overtime period of normal working hours. Their payment is made in accordance with current legislation: one and a half times the amount for the first two hours, falling on average on each working day of the accounting period, double the amount for the remaining hours of overtime work.

Thus, if an employee, for example, worked 43 hours overtime in 20 working days of the accounting period, 40 hours (20 days x 2) he will be paid at one and a half times, and three hours at double the rate.

The procedure for calculating pay for overtime work set out in paragraph 5.5 of the above Recommendations was recognized by the Supreme Court of the Russian Federation in Decision dated October 15, 2012 N AKPI12-1068 as correct, although the Ministry of Health and Social Development provided other explanations. Let us recall that the department in Letter dated August 31, 2009 N 22-2-3363 recommended paying overtime work at the end of the accounting period: the first two hours of work - at least one and a half times the rate, all other hours - at least double the rate. That is, if an employee at the end of the accounting period had 19 hours of overtime, then two hours should be paid at one and a half times the rate, and 17 hours at double the rate.

Question: How do I pay for overtime work on a non-working holiday?

According to the general rule defined by Art. 153 of the Labor Code of the Russian Federation, work on a day off or a non-working holiday is paid at least double the amount. However, the Decree of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions dated 08.08.1966 N 465/P-21 approved Explanation N 13/P-21, by virtue of clause 4 of which, when calculating overtime hours, work on holidays performed in excess of working hours should not be taken into account , since it has already been paid double.

2. Additional rest. Instead of increased payment Art. 152 of the Labor Code of the Russian Federation allows an employee to receive additional rest time for overtime work. How long should this rest be? Certainly no less than the time worked overtime. That is, if an employee worked three hours above normal working hours, then the additional rest provided as compensation should be no less.

Note! Overtime work of FIFA employees, FIFA subsidiaries, FIFA counterparties, confederations, national football associations, the Russian Football Union, the Russia 2018 Organizing Committee, its subsidiaries, whose work activities are related to the implementation of events, is compensated by the provision of additional rest time, but not less than time worked overtime, taking into account the plans of the relevant organizations for the implementation of activities, unless otherwise provided by agreement of the parties to the employment contract. At the same time, the requirements of Art. 152 of the Labor Code of the Russian Federation (Article 11 of the Federal Law of June 7, 2013 N 108-FZ “On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup and amendments to certain legislative acts of the Russian Federation”).

Procedure for engaging in overtime work

1. We determine who can be involved in overtime work. This is an important point. It is worth noting that according to Part 5 of Art. 99 of the Labor Code of the Russian Federation, pregnant women and workers under the age of 18 cannot be involved in overtime work. The exception is minor athletes (Part 3 of Article 348.8 of the Labor Code of the Russian Federation), as well as creative workers of the media, cinematography organizations, television and video crews, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or ) performance (exhibition) of works (Article 268 of the Labor Code of the Russian Federation), the List of professions and positions of which was approved by Decree of the Government of the Russian Federation of April 28, 2007 N 252.

Involvement of disabled people and women with children under three years of age in overtime work is allowed only with their written consent and provided that this is not prohibited for them due to health reasons in accordance with a medical report. At the same time, disabled people and women with children under three years of age must be informed by signature of their right to refuse overtime work. Under the same conditions, the following may be involved in overtime work (Article 259 of the Labor Code of the Russian Federation):

- mothers and fathers raising children under the age of five without a spouse;

— employees with disabled children;

- workers caring for sick family members.

2. We obtain the employee's consent. Some employers include in the employment contract a provision that, if necessary, according to the order, the employee can be involved in both overtime work and work on weekends and at night. They believe that since an employee has signed an employment contract with such a condition, then he has already agreed to perform overtime work and his written consent is not necessary. However, this is not true: consent to perform overtime work cannot be recorded in an employment contract; the employee’s written consent must be obtained every time there is a need to involve him in such work. This position is confirmed by court decisions. For example, the Chelyabinsk Regional Court in its Ruling dated April 22, 2014 in case No. 11-4403/2014 indicated that the inclusion in an employment contract of conditions stipulating the employee’s obligation to perform work outside the working hours established for the employee, as well as on weekends and non-working holidays , contrary to labor laws.

So, in order to receive an employee’s response about his consent or disagreement to perform overtime work, he must be sent a notice indicating the reasons that necessitated the need to involve the employee in such work. Let us give one more nuance: when notifying disabled people, women with children under the age of three, as well as mothers, fathers raising children under the age of five without a spouse, employees with disabled children or caring for sick members families, fathers raising children without a mother, and guardians (trustees) of minors, the document must inform them of the right to refuse to perform overtime work.

So, if an employee does not agree to work overtime, he will have to offer to work overtime to another employee, and disciplinary measures cannot be applied to the person who refuses, since they will be considered illegal (see, for example, the Appeal ruling of the Chelyabinsk Regional Court dated April 22, 2014 in the case N 11-4380/2014). The exception is the cases mentioned in Art. 99 of the Labor Code of the Russian Federation, when it is not necessary to obtain the employee’s consent.

3. We take into account the opinion of the elected body of the primary trade union organization. If the company has a trade union and cases when you need to work overtime are not specified in Art. 99 of the Labor Code of the Russian Federation, the employer, in addition to the employee’s consent to such work, needs to request the opinion of the elected body of the primary trade union organization.

The procedure for taking into account the opinion of the elected trade union body when involving an employee in overtime work is regulated by Art. 372 Labor Code of the Russian Federation. Let's describe it briefly. Before issuing an order to involve an employee in overtime work, the employer must send a draft of such an order and the rationale for it to the elected body of the primary trade union organization, which, no later than five working days from the date of receipt of the draft order, must send the employer a reasoned opinion on it in writing.

If the elected body of the primary trade union organization does not agree with the draft order on involvement in overtime work or proposes to improve it, the employer may agree with it or will be obliged to conduct additional consultations within three days after receiving a reasoned opinion in order to achieve a mutually acceptable solution. If agreement is not reached, the disagreements that arise are documented in a protocol, after which the employer has the right to issue an order, which can be appealed to the relevant State Labor Inspectorate or to the court.

4. We issue an order. If the employee agrees to work overtime and has no medical contraindications, a corresponding order is issued. There is no unified form for such an order, so it is drawn up in any form.

Remember that if an employee agreed to work overtime and read the relevant order, but did not start work without a good reason, then he can be subject to disciplinary action, taking into account the requirements for carrying out this procedure (Articles 192, 193 of the Labor Code of the Russian Federation) .

5. We issue an order to provide compensation for overtime work. This step is appropriate only if the type of compensation was not determined before the order was issued and the employee chose increased pay or additional rest only after completing overtime work. In this case, it is necessary to issue an additional order to provide compensation in accordance with Art. 152 Labor Code of the Russian Federation.

Finally

— request the written consent of employees and the opinion of the elected body of the primary trade union organization;

— check whether, according to a medical report, the recruited employees are not contraindicated from working overtime;

- compensate for work beyond normal working hours.

Subject to compliance with the requirements of Art. Art. 99 and 152 of the Labor Code of the Russian Federation, any court and State Tax Inspectorate will be on your side.

Many institutions, in the course of their activities, from time to time need to involve their employees in overtime work. In this article, we will remind you how to properly involve employees in such work, which employees are contraindicated from it, and also tell you how to pay for overtime work, taking into account the latest clarifications of the Ministry of Health specialists (Letter dated July 2, 2014 No. 16-4/2059436 “On remuneration for overtime work").

Let us recall that according to Art. 99 Labor Code of the Russian Federation 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 in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period.

The nuances of attracting employees to work overtime

The employer must remember that involvement in overtime work is permitted with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization. So, in Art. 99 Labor Code of the Russian Federation provided cases in which it is necessary to obtain the written consent of the employee to engage him in overtime work :

• if it is necessary to perform (finish) work that has begun, which, due to an unforeseen delay due to technical production conditions, could not be performed (finished) during the working hours established for the employee, if failure to perform (non-complete) this work may lead to damage or destruction of the employer’s property ( including property of third parties located at the employer, if the employer is responsible for the safety of this property), state or municipal property or create a threat to the life and health of people;
• when performing temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the cessation of work for a significant number of workers;
• to continue work if the replacement employee fails to appear, if the work does not allow a break. In this case, the employer is obliged to immediately take measures to replace the shift worker with another employee.

To involve certain categories of workers in overtime work, in addition to their written consent, it is necessary to obtain a medical certificate that such work is not prohibited for them due to health reasons. This medical certificate is issued in accordance with By order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 No.  441n “On approval of the Procedure for issuing certificates and medical reports by medical organizations”. Such employees include:

• disabled people;
• women with children under three years of age.

note

Disabled people and women with children under three years of age must be informed by signature of their right to refuse overtime work.

We draw your attention to categories of citizens who cannot be involved in overtime work . This:

• pregnant women;
• workers under the age of 18, with the exception of creative workers in the media, cinematography organizations, television and video crews, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in in accordance with the lists of jobs, professions, positions of these workers, approved by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations. This list has been approved By Decree of the Government of the Russian Federation dated April 28, 2007 No.  252 ;
• employees during the period of validity of the apprenticeship contract ( Part 3 Art. 203 Labor Code of the Russian Federation);
• other categories of workers in accordance with the Labor Code and other federal laws.

Besides, Art. 99 Labor Code of the Russian Federation provided cases when an employer’s involvement of an employee in overtime work is allowed without his consent :

• when carrying out work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
• when performing socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) sanitation systems, gas supply, heat supply, lighting, transport, communications systems;
• when carrying out work the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (in case of fire, flood, famine, earthquake, epidemic or epizootic) and other cases posing danger threat to the life or normal living conditions of the entire population or part of it.

In conclusion of this section of the article, we note that the duration of overtime work should not exceed four hours for each employee for two consecutive days and 120 hours per year. At the same time, the employer is obliged to ensure accurate recording of the duration of overtime work for each employee. In the time sheet (form T-12 or T-13), hours worked overtime are indicated by the letter code “C” or the digital code “04”.

Employees with irregular working hours are not paid for hours worked in excess of normal working hours, as they are compensated by additional leave ( Letter of Rostrud dated 06/07/2008 No.  1316-6-1 ).

The nuances of paying overtime work

The procedure for paying overtime work has been established Art. 152 Labor Code of the Russian Federation. This article stipulates that overtime work is paid for the first two hours of work at least one and a half times the rate, for subsequent hours - at least twice the rate. In this case, the specific amounts of overtime pay can be determined by a collective agreement, local regulations or an employment contract.

In addition, as stated in this article, at the request of the employee, overtime work, instead of increased pay, can be compensated by providing him with additional rest time, but not less than the time worked overtime.

We would like to draw your attention to one nuance related to the additional payment for overtime work when recording working hours together. The position of employees of the Ministry of Health and Social Development, presented in Letterdated 31.08.2009 No.  22-2-3363 , is as follows: when recording working hours in aggregate, additional payment for overtime work is made at the end of the accounting period.

However, in Decision of the Supreme Court of the Russian Federation dated October 15, 2012 No.  AKPI12-1068 it is recognized that this provision contradicts clause 5.5 of the Recommendations on the application of flexible working time regimes in enterprises, institutions and organizations of sectors of the national economy, approved Resolution of the USSR State Committee for Labor No.  162, All-Union Central Council of Trade Unions No.  12-55 from 05/30/1985, according to which, in the case of overtime work performed by persons transferred to flexible working hours, the hourly accounting of these works is kept in total in relation to the established accounting period (week, month), that is, only hours worked in excess of the established for this period are considered overtime working time standards. Their payment is made in accordance with current legislation: one and a half times the amount for the first two hours, falling on average for each working day of the accounting period, double the amount for the remaining hours of overtime work. Thus, if an employee, for example, worked 30 hours overtime (14 working days of the accounting period), he will be paid at one and a half times for 28 hours (14 days x 2), and for two hours at double the rate.

Let us give an example of calculating wages for overtime work for an employee who is paid an hourly wage, taking into account the decision of the RF Armed Forces.

Example.

The employee of the institution has a summarized recording of working time. The accounting period is a month, the duration of the work shift is 12 hours. This employee is given an hourly wage of 180 rubles/hour. In August he worked 14 shifts, which corresponds to

168 hours - normal working hours according to the production calendar for August 2014. In addition, in the same month, due to production needs, he was involved in overtime work for two hours per shift, there were three such shifts in total. Overtime work in an institution is paid in accordance with Art. 152 Labor Code of the Russian Federation. We will calculate the payment for such work.

Due to the fact that the employee was involved in overtime work for two hours per shift, and there were three such shifts in total for the month, the total number of overtime hours will be equal to 6 hours (2 hours x 3). Thus, the additional payment for overtime work will be 1,620 rubles. (180 rub./hour x 6 hours x 1.5).

As for the procedure for calculating the hourly tariff rate from the established monthly rate, we draw your attention to the explanations of the Ministry of Health employees given in Letter dated 07/02/2014 No.  16-4/2059436 . In it, they provide answers to the following questions: how is the hourly rate calculated for calculating additional payments for overtime work for medical workers working on a schedule (during the year, in some months, overtime or shortfall from the norm of working hours according to the production calendar is possible), is it legal when calculating payment? hours of overtime use the average annual cost of one hour?

So, the Ministry of Health noted that Art. 152 Labor Code of the Russian Federation does not establish the procedure for determining the minimum one and a half and double amount of overtime pay. In his opinion, when paying overtime work, you can use the rules Art. 153 Labor Code of the Russian Federation, according to which the minimum amount of double payment is double the tariff without taking into account compensation and incentive payments.

In addition, officials indicated that the specific amounts of overtime pay may be determined by a collective agreement, local regulations or an employment contract. One-and-a-half and double payments may include all allowances and surcharges established in the organization or part of them.

The letter also noted that the current legislation does not provide for the procedure for calculating the hourly wage rate from the established monthly rate for the purpose of paying overtime work. Thus, according to employees of the Ministry of Health, it is advisable to calculate the hourly tariff rate by dividing the salary established for the employee by the average monthly number of working hours, depending on the established length of the working week in hours. This means that the average monthly number of working hours (for example, with a 36-hour work week) is calculated by dividing the annual norm of working hours in hours by 12. Thus, in 2014, the average monthly number of working hours with a 36-hour work week will be 147. 7 hours (1,772.4 hours / 12).

The Ministry of Health argues for this approach to determining the average monthly number of working hours by the fact that this procedure for calculating part of the salary per hour of work to pay for overtime work (at night or on non-working holidays) allows you to receive the same pay for an equal number of hours worked in different months.

This procedure for calculating the hourly wage rate from the established monthly salary must be enshrined in a collective agreement, agreement or local regulation.

Let's give an example of calculating wages for overtime work for an employee whose salary is set.

The doctor has a summarized recording of working hours. The accounting period is a month, the duration of the work shift is 12 hours. His monthly salary is 18,000 rubles. In August, the doctor worked 13 shifts, which is 156 hours. We will calculate the payment for overtime work, provided that such work in the institution is paid for the first two hours at one and a half times, and for subsequent hours - at double.

According to the 2014 production calendar, with a 36-hour work week in August 2014, the normal working time is 151.2 hours. This month the doctor worked 13 shifts of 12 hours, which amounted to 156 hours for the month. This means that he worked 4.8 hours of overtime (156 - 151.2). In 2014, the average monthly number of working hours with a 36-hour work week will be 147.7 hours (1,772.4 hours / 12).

Consequently, the hourly portion of the employee’s salary will be 121.87 rubles. (RUB 18,000 / 147.7 hours). Thus, overtime pay will be equal to RUB 1,048.08. ((121.87 rubles x 2 hours x 1.5) + (121.87 rubles x 2.8 hours x 2)).

In conclusion, we note that Art. 152 Labor Code of the Russian Federation minimum wages for overtime work have been established. An institution in its local regulations may establish other amounts of payment for such work, but not lower than those provided for by the Labor Code. In addition, an institution may establish in a local regulatory act the procedure for calculating the hourly wage rate from the established monthly salary in order to pay for overtime work, since this is not provided for by current legislation. We also remind you that additional payment for overtime work is part of the employee’s salary, therefore, it is subject to personal income tax and insurance contributions to extra-budgetary funds ( clause 1 art. 210 Tax Code of the Russian Federation, Part 1 Art. 7 Law no.  212-FZ).

In an unstable financial and economic climate, many employers seek to optimize labor costs. To achieve this, staff reductions are being carried out.

Meanwhile, the tasks that were performed by the laid-off workers remain. Enterprising employers shift them onto the shoulders of employees who were not laid off, and do not impose any additional payments for performing these tasks. Such actions are illegal, since employees have to work longer than the standard hours in order to get everything done. This type of employee activity is called overtime. Let's consider its features.

Definition

According to Article 99 of the Labor Code of the Russian Federation, overtime work involves the performance of duties by an employee beyond the duration of the daily shift established for him by the standards. Some enterprises keep cumulative time records. 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 pay period. The norm is 40 hours a week.

Special categories

For some employees, labor legislation provides for reduced work hours:

1. For minors - 24-35 hours per week.
2. For persons whose working conditions are harmful (grade 3-4) or dangerous - no more than 36 hours/week. A special commission assesses production conditions. Based on the results of the analysis, a report is drawn up.
3. For disabled people of groups 1-2 - no more than 35 hours/week.

Shortened shifts are also established for teaching and medical workers, women working in the North and in territories equated to it.

Accordingly, for all of these categories of employees, overtime work is recognized as professional activity carried out in excess of established standards. Additional payment is required for this.

Important points

It should be said that the involvement of employees in overtime work is carried out at the initiative of the employer. Employees have the right to stay at the enterprise at their own request. However, such cases are not considered overtime work.

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.

Legal requirements

The Labor Code does not allow forced overtime work. However, the legislation provides for a number of cases when an employer has the right to detain its employees. They are enshrined in part 2 of Article 99 of the Labor Code. According to the norm, working overtime is allowed if:

1. The need to complete a started production operation, the completion of which was not possible due to an unexpected delay during the shift. Overtime work in this case is justified if failure to do so could lead to damage or destruction of property (including property owned by third parties, but in the custody of the employer), municipal or state property, or create a threat to the health or life of the population.
2. Carrying out repairs or restoration of mechanisms and structures, if their malfunction can lead to the cessation of work of most of the enterprise personnel.
3. Failure of a rotating employee to appear to continue work, the interruption of which is unacceptable. In such cases, the employer must promptly take measures to replace the working citizen with another employee.

In all of the above cases, the employer must obtain consent from employees to work overtime. In this case, it is necessary to take into account the opinion of the trade union.

Exceptional cases

Part 3 of Article 99 of the Labor Code stipulates the circumstances under which engagement in overtime work is permitted without obtaining consent from employees:

1. Carrying out measures necessary to prevent an accident, disaster, and eliminate their consequences.
2. Carrying out work aimed at eliminating unforeseen circumstances that disrupt the normal functioning of main (centralized) gas, water, heat, electricity, communications, and transport systems.
3. Carrying out activities caused by the introduction of martial law or a state of emergency, urgent work in emergency situations. We are talking, in particular, about floods, fires, other natural disasters, as well as other cases in which the life or health of the population is at risk.

The Labor Code provides for 2 options for compensating an employee for labor in excess of established standards. The first way is increased payments.

Overtime work is paid for the first 2 hours - at one and a half times the rate, and for subsequent hours - at least double. Specific amounts of payments can be fixed by a collective agreement, an internal regulatory act of the enterprise, or an employment contract.

Unfortunately, the Labor Code does not define a uniform procedure for calculating overtime pay. Therefore, enterprises install it independently, taking into account the specifics of their activities. Some organizations calculate the cost of one hour of overtime work based on the amount of earnings for the month in which the employee performed it and the number of hours allocated for this employee, according to the production calendar. At other enterprises, calculation is carried out based on the monthly salary and the average monthly number of hours.

As a result, using different procedures for calculating overtime pay can result in completely different amounts. To avoid conflicts, it is advisable to consolidate the selected calculation rules with internal regulations.

Summarized time tracking

When using it, it is often difficult to determine which jobs are overtime and which are normalized. Accordingly, difficulties arise when calculating compensation. To solve emerging problems, one should be guided by the Recommendations on the application of flexible working hours in institutions, organizations, and enterprises of national economic sectors, approved in 1985.

In accordance with paragraph 5.5 of this normative act, when overtime work is performed by citizens transferred to a flexible work schedule, hourly accounting of work is carried out in total relative to the established billing period (month, week). Accordingly, only those hours that are worked in excess of the norm provided for a specific period will be recognized as irregular.

Accordingly, overtime work lasting 2 hours will be paid at one and a half times the rate, and subsequent hours in excess of the norm will be paid at double rate.

Practice of application of rules

Based on the information above, the following calculations can be made. Suppose a citizen worked 43 hours overtime over 20 days of the reporting period. Of these, 40 hours will be compensated at one and a half times, and the remaining 3 - at double.

The rules enshrined in paragraph 5.5 of the Recommendations were recognized as correct 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 calculated at the end of the reporting period. For example, if an employee worked 19 hours in excess of the norm, then 2 of them are paid at time and a half, and 17 at double rate.

According to the general rules established for activities on a non-working (including holiday) day, payment must be doubled. In practice, the question often arises - how to calculate the earnings of a citizen hired to work overtime on a weekend? Explanations on this matter are present in the Resolution of the State Labor Committee of 1966.

According to the regulation, hours worked overtime on a weekend or holiday should not be taken into account when calculating, since this work activity is already paid at double the rate.

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 additional rest. Its duration should not be less than the time worked overtime.

Nuances

Special rules apply to:

1. Employees, contractors, subsidiaries of FIFA.
2. Football confederations and national associations.
3. Organizing Committee "Russia-2018" and its subsidiaries.

If the activities of employees of these organizations are related to the implementation of sporting events, overtime work is compensated for by additional rest. Its duration should not be less than the time worked in excess of the norm established by the plans. Another procedure may be fixed exclusively in the employment contract.

In relation to these employees, the procedure provided for in Article 152 of the Labor Code does not apply.

Who can work like that?

The legislation establishes a list of persons whose involvement in labor activities in excess of established standards is not permitted. It is defined in part 5 of article 99 of the Labor Code. According to the norm, the employer does not have the right to employ pregnant employees and minors to work overtime. In this case, the exception is athletes under 18 years of age, creative workers in 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 was approved by Government Resolution No. 252 of 2007.

The involvement of women with minor (under 3 years of age) dependents and disabled people in overtime work is permitted 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 for them due to health reasons.

Women with children under 3 years of age, as well as disabled people, have the right to refuse to work beyond the norm. This possibility must be explained to them by the employer against signature.

Similar rules for engaging in overtime work are established for:

1. Single parents raising children under 5 years of age without a spouse.
2. Employees who have a dependent disabled child.
3. Workers caring for sick relatives.

Employee consent

At some enterprises, the content of the employment contract includes a condition that, if necessary, a citizen, on the basis of an order, will be involved in working overtime, including on holidays/weekends, as well as at night. The heads of such organizations believe that by fixing 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 included in an employment contract. Every time there is a need to involve a citizen in overtime activities, it is necessary to obtain his written consent. This position is confirmed by judicial practice.

A notice is sent to the employee to obtain consent. It states the reasons why overtime is required. When notifying women with children under 3 years of age, fathers/mothers raising a child without a spouse, employees with disabled children or who are disabled, they must be informed of the possibility of refusal.

What to do if the employee does not give 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 illegal.

These rules, however, do not apply in cases where there is no need to obtain the employee’s consent.

Union participation

Involvement of personnel 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 the participation of a trade union in resolving an issue are enshrined in Article 372 of the Code. Let's look at them.

Before adopting an order to engage an employee to work overtime, the employer sends his draft with justification to the trade union. The elected body of this organization draws up a reasoned opinion within five days and transmits it to the employer.

If the trade union disagrees with the draft order, the employer is sent a proposal to change it. The employer, in turn, can agree with it or, within three days, must hold a joint meeting with the trade union to reach a consensus.

If a mutually acceptable solution is not found, the disagreement must be formalized in a protocol. After this, the employer has the right to issue an order requiring staff to work overtime. This act can be challenged in the State Labor Inspectorate or in court.

There is no standardized form for this document. Therefore, the enterprise needs to develop its own form taking into account the legal requirements for such documents. The order must indicate:

1. Full name and position of the employee.
2. The reason for engaging in overtime work.
3. Start date of activity.
4. Information about the employee's consent.

The employee reads the order and signs.

The document can also provide the amount and procedure for payment of overtime work, if this is stipulated by 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 assigning compensation for overtime work. This may be due to the fact that its type was not determined before processing began.

additional information

Time worked overtime must be reflected on the timesheet. For this purpose, the document provides a code “C” or “04”. This code indicates the number of hours and minutes processed.

If a time-based wage is established for an employee, for each hour of the first 2 overtime hours, 50% of the rate is added to the basic salary, and for each subsequent one - 100%.

If the payment is piecework, then the processing time, as well as the products produced within this period, must be paid according to the general rules, plus the procedure established for time-based work applies.

If overtime work is performed at night, payment is made both for overtime and for night work. The minimum additional payment for each irregular hour at night is 20% of the tariff or part of the salary.

Evidence of overtime work may be provided by the employee's written explanation. In addition, waybills with appropriate marks and other supporting documents can be provided.

Is additional vacation payable?

There is no clear answer to this question. As established in Article 153 of the Labor Code, as compensation for working overtime, an employee can receive additional rest instead of increased pay. However, the legislation does not prohibit payment for rest days. Consequently, the employer has the right, at its own discretion, to provide the employee with monetary compensation.

Procedure for granting rest

There are no clear rules in the legislation. However, paragraph 39 of the Supreme Court Resolution of 2004 clarifies that unauthorized use of vacation days and time off is considered absenteeism and can be grounds for termination of the contract. In this case, the provisions of Art. 81 TK.

The unauthorized use of rest days is not considered absenteeism if the employer, in violation of the statutory obligation, refused to provide the employee with them, and the time of their use did not depend on the discretion of the employer. Failure to provide additional rest for overtime work is unlawful if the employee has chosen it as compensation.

Finally

Involving an employee in overtime work is considered illegal if his consent is absent. Exceptions are made in cases expressly provided for by law. In addition, in certain circumstances it is necessary to seek the opinion of the elected body of the trade union. The health status of the employee is also important. The employee should not have any contraindications.

The employee must be provided with compensation. This could be a cash payment or additional days of rest. The employer's evasion of this duty is unlawful. The employer, at its discretion, can provide both material compensation and rest.

Overtime work is the implementation of a labor function outside the boundaries of the fixed working day. Art. 99 of the Labor Code of the Russian Federation stipulates that the recruitment of an employee occurs on the initiative expressed by the employer.

Attention! In accordance with Rostrud letter No. 658-6-0 of 2008, a delay at the place of work to perform activities at the request of the employee is not overtime.

The difference between overtime work and irregular working hours is as follows:

• Irregular working hours are negotiated with the employee in advance (when signing an employment contract or changing its provisions by mutual agreement);
• During processing, duration restrictions are established (no more than 120 hours during a calendar year and 4 hours during 2 consecutive days), while the irregular activity schedule does not provide for this;
• Workers cannot be involved in activities under an irregular system (labor legislation provides for rare exceptions); all groups of workers are involved in overtime activities, incl. management.

A significant difference is that payment for overtime performance of labor duties is carried out at a special rate, while irregular activities provide for standard payment.

Ways to attract

Art. 99 of the Labor Code of the Russian Federation provides for the obligation of employers to obtain the employee’s consent to involve him in overtime.

The exceptions are the following situations:

• The need to prevent a disaster or industrial accident;
• Elimination of the consequences of an accident or disaster that has already occurred;
• Introduction of a state of emergency, as well as martial law, in other situations that pose a threat to the population (for example, fire, other natural disaster).

An irregular schedule is considered a special work mode. The peculiarity of this regime is that it is determined for some employees whose positions are determined in accordance with the list of employees with irregular working hours.

The Labor Code of the Russian Federation does not contain a list of positions, including standard ones, for which an irregular work schedule can be determined. According to Art. 101 of the Labor Code, this list is determined by a collective agreement, agreement or internal labor regulations.

If the boss forces you to work overtime in the listed cases, consent from the trade union is not required. For refusal to work under such conditions, a citizen is subject to disciplinary liability on the basis of current legislation.

Art. 99 of the Labor Code of the Russian Federation fixes the grounds when an employee is involved in overtime activities with his consent:

• Carrying out work that has already begun, the delay of which may result in damage to management’s property, poses a threat to people’s health;
• The need to carry out work aimed at repairing mechanisms and buildings, if their breakdown could lead to the cessation of work for a large number of workers;
• If a shift employee fails to show up at the workplace, if the function he performs does not allow for the possibility of going on a break (provided that management urgently searches for a replacement).

The table shows the differences between irregular working hours and overtime work

Action	Irregular working hours	Overtime
The requirement to indicate this labor regime in the employment contract and collective documents, taking into account the opinion of the trade union	required	not required
Frequency of involvement in work beyond the established working hours for the employee	sporadically	possible periodically, but no more than 4 hours for two days in a row and 120 hours per year
Issuance of a special order	required, indicating any reasons	required, but only with indication of the reasons provided for by the Labor Code of the Russian Federation
Obtaining employee consent	Not required	Required (except for cases provided for in Part 3 of Article 99 of the Labor Code of the Russian Federation)
Payment for additional work	On weekdays - not performed, on weekends - according to the rules for paying overtime work	Produced
Providing rest days	In any case - at least 3 additional paid days for vacation	Vacation days are not provided. When working on a weekend, an additional day of rest may be provided.

How to register an employee for overtime work

Processing procedure:

1. Identifying the list of employees who need to be involved in processing. Next, you need to make sure whether they are among those who cannot be involved in additional work in accordance with the legislation of the Russian Federation. Here it is important to take into account all categories of such people, as well as those whose consent is required for the legality of this procedure.
2. Obtaining written consent for overtime work from those employees from whom it is necessary. It must be remembered that even if the employment contract stipulates that the responsibilities of a particular employee include overtime, his consent will have to be obtained each time such a situation occurs. To obtain the employee’s consent to overtime, he must first be sent a notice indicating why he must work overtime. The notice must also indicate: date, time and amount of compensation for overtime hours. Persons who have a legal right to refuse processing must be notified of this.
   If an employee refuses overtime, then sanctions cannot be applied to him, since this is his right. In the event of a refusal, notice must be given to the next employee who may replace him.
3. Obtaining the consent of the trade union bodies, if there is one in the company, when a case occurs when this consent is necessary.
4. Publication of the relevant document. If the employee agrees to work overtime, and there are no problems with the trade union authorities, the employer must issue an order. There is no clearly established form for this order, so it is issued in free form.
5. Issuance of an order to accrue compensation to an employee for overtime. The type and amount of compensation is established for each employee individually in accordance with the labor legislation of the Russian Federation.

According to judicial practice, compliance with the procedure approved by law for attracting employees to overtime work is mandatory. If there was a fact of violation of the law, for example, an order (instruction) was not issued to engage in overtime work, and employees worked after the end of the shift in accordance with the verbal order of the boss, then payment for their work should be made in an increased amount as overtime.

Thus, in order to attract an employee to work overtime, all rules and regulations must be strictly followed. Otherwise, processing will be considered illegal and may be challenged in court.

Prohibition on involvement in processing

Involving employees in overtime work on grounds not provided for in Art. 99 of the Labor Code of the Russian Federation, not allowed.
It is prohibited to involve (even with their consent) in overtime activities:

• Pregnant women;
• Workers who have not reached the age of majority.

The exceptions are some groups of creative workers, the list of which is contained in the RF PP No. 252 of 2007, athletes, employees under a student agreement and specific groups of workers.

Watch a video about long working hours

Checking the legality of attraction to processing

If an employer forces you to work overtime, you must:

1. Check whether you belong to groups of people whose involvement in processing is prohibited or is possible only in certain cases.
2. Make sure that the processing time does not contradict the requirements of the Labor Code of the Russian Federation.
3. Review your timesheet to ensure that overtime hours are recorded correctly.
4. Study the provisions of the collective agreement on the procedure for involving employees in overtime.
5. Make sure that the calculation of payment and the provision of compensation and additional days of rest are carried out correctly.

If all points are complied with by the employer and no violations are found, then the employee does not have the opportunity to hold him accountable.

Many legal theorists and practicing lawyers argue about whether an employer can force people to work overtime. However, in a number of cases, employees can be involved in processing under the Labor Code of the Russian Federation without their consent.

Any questions you may have can be asked in the comments to the article.

Labor legislation on the territory of the Russian Federation covers issues of labor activity in a rather diverse manner.

At the same time, fulfillment of all its requirements is strictly necessary. Especially when it comes to such complex aspects of activity as overtime.

What it is

Today, the term “overtime work” refers to the performance of certain work activities in excess of the norm established by the relevant contract.

The main condition is the presence of appropriate initiative on the part of the employer. If it is absent, then work of this kind is not overtime.

This kind of work can be divided into two main categories:

• without the employee’s consent;
• with the written consent of the employee.

At the moment, a special category of overtime work is one that must be carried out regardless of the availability or consent of the employee to carry out this type of activity.

This type of work today, according to current legislation, includes:

• carrying out any work to eliminate man-made or natural disasters, accidents in industries hazardous to humans;
• when performing work to eliminate problems in the operation of some communication systems:
  • transport;
  • connection;
  • water supply;
  • sewerage;
  • heating;
  • gas supply;
• if the need to perform certain work is required due to the introduction of a state of emergency/martial law;
• work required due to serious disasters:
  • epidemics;
  • fires;
  • thunderstorms;
  • earthquakes and more.

Carrying out all work related to the situations indicated above is strictly mandatory. There are no alternatives.

According to labor legislation, the employee is obliged to fulfill everything required of him by the employer in the situations indicated above.

This type of work currently includes the following:

• if for some technical reasons or other reasons beyond the control of the employee and the employer, certain work was not completed within the working hours established by the employment agreement;
• if it is necessary to carry out repairs of structures and devices, the non-working condition of which will lead to the cessation of work of a very large number of employees;
• for some reason, an employee who is a shift worker did not show up at his place of work - if the work performed at production does not allow for a break.

It is important to remember that in some cases, when hiring, it is necessary to take into account the opinion of the trade union body. But, at the same time, a negative decision of the trade union does not matter.

At the same time, the consent of the employee himself is strictly necessary. If this is not available in writing, then the right to involve him in this type of activity is simply absent.

Today the following type of work is not considered:

It is not considered work of this type if daily duties on some working days exceed the duration of the shift established by a special schedule.

It is taking into account all the points outlined above that the employer will need to formulate the amount of payment for his specific employee. If you have any difficulties, you should consult with a qualified lawyer.

Overtime work according to the Labor Code of the Russian Federation

One of the most important points for many citizens today is the following: can overtime work be compensated for by additional rest?

This and all other issues are discussed in as much detail as possible in special legislation. The regulatory document () is fundamental and should be relied upon first of all.

The most significant NAPs in the Labor Code of the Russian Federation are the following articles:

The employer should always rely on the latest edition of the Labor Code of the Russian Federation. It is important to remember that violation of labor laws can lead to the imposition of not only administrative, but in some cases, criminal liability.

Recently, the labor inspectorate and other similar regulatory bodies have been closely monitoring the activities of employing enterprises.

How is it compensated?

The issue of payment for overtime work is discussed in sufficient detail directly in the Labor Code of the Russian Federation.

The payment rules are established by Article No. 152 of the Labor Code of the Russian Federation and look as follows:

• the first two hours of working overtime are paid in the amount of the standard salary multiplied by an increasing factor of 1.5;
• all other hours of work following the first two are paid using a factor of 2.

At the same time, the amount of payment for overtime work may also be regulated by the following internal documents of the employer:

• collective agreement;
• local regulations;
• directly concluded with the employee in an employment agreement.

But it should be remembered that the provisions of the above documents regulating payment and other conditions for overtime work should not worsen the employee’s position.

This point is reflected in the labor legislation in force in the Russian Federation. If any such violations occur, this automatically makes the document invalid and void.

It is in the interests of the employer to comply with the legality of involving its employees in overtime work.

Otherwise, quite serious problems with the law may arise. Up to deprivation of the right to engage in a certain type of activity. The situation is similar with payment.

It must take place in full. It is prohibited to force an employee to work overtime. There are only a limited number of cases in which it is permissible to involve an employee regardless of his consent.

How are they limited during the year?

The very fact of involving an employee in overtime work is permitted by law. But there are certain time limits. They apply for one calendar year. They are not allowed to be exceeded.

At the moment, the following main restrictions on performing work in this mode are established:

• exceeding the normal working hours for 2 days in a row should not exceed 4 hours;
• the total number of overtime working hours should not be more than 120.

One of the employer's obligations is to record as accurately as possible all overtime hours worked.

Since subsequently, on the basis of this accounting, wages and overtime pay will be formed. Also, this kind of accounting is strictly required for maintaining accounting and tax reporting.

If for some reason the time limit for engaging in overtime work has been exhausted, then the employer does not have the right to engage the employee in the future.

If there is a need to carry out additional work, which employees cannot cope with during regular hours for some reason, the situation should be resolved in other possible ways.

Violation of the limits established by law threatens the employer with administrative liability in accordance with current legislation.

Duration

The duration of overtime working hours is currently limited. The main reasons for this are the following:

• increased energy consumption on the part of the employee;
• reducing the amount of time allotted for sleep, rest and other necessary activities.

The issue of limiting the permissible amount of time involved in overtime work is reflected in the Labor Code of the Russian Federation.

According to statistics from other countries (particularly the UK), people often involved in overtime work often suffer from cardiovascular diseases. The risk of heart attack and other serious illnesses is also quite high.

It is on the basis of these statistics, as well as medical recommendations, that certain restrictions on the duration of overtime work have been established.

Exceeding the established limits is allowed only when performing overtime work in cases where the written consent of employees is not required. For example, this is the elimination of the consequences of natural disasters, as well as various other difficult situations (states of emergency).

Difference from irregular working hours

The term “irregular working hours” means the need to perform some specific work outside the working day.

Also in some cases it is necessary to do this more intensively. Subsequently, all this is compensated by agreement between the employee and his employer.

Such a phenomenon as irregular working hours is regulated by separate articles of the Labor Code of the Russian Federation.

The main regulatory documents are the following:

• Article No. 101 of the Labor Code of the Russian Federation;
• Labor Code of the Russian Federation.

An important difference between irregular working hours and overtime work is that the employer does not have the right to engage in tasks not specified in the employment contract.

At the same time, when working overtime, it is possible to be involved in performing various tasks. Regardless of whether they are present in the employment agreement or not.

Also, the very fact of having irregular working hours is necessarily fixed in the concluded employment agreement.

Engaging in overtime work does not require this. This point is announced directly in the Labor Code of the Russian Federation. Therefore, there is no need to stipulate this point in the contract concluded between the employee and the employer.

But, at the same time, to perform overtime work requires the written consent of the employee himself. Irregular working hours are initially prescribed in the employment contract.

Therefore, the employee gives consent to work in this way at the time of signing the agreement. Both overtime and irregular working hours must always be taken into account directly by the employer and must be paid accordingly.

The employee and the employer himself must be familiar with all the most significant differences between the two designated concepts in advance. This will allow you to avoid the emergence of all sorts of complex and even conflict situations and litigation.

Can disabled people be involved?

It should be remembered that the employer’s right to involve certain categories of employees in overtime work is limited by current legislation.

For example, under no circumstances is it allowed to involve the following categories of citizens in work of this type:

• if the employee’s age is less than 18 years;
• if the employee is a pregnant woman;
• workers of other categories, which are reflected in federal legislation.

At the same time, engaging disabled people in overtime work, as well as women who have children under 3 years of age, is allowed only with written consent, regardless of the type of work. A prerequisite is the absence of any contraindications to overtime work.

For each time overtime work is performed, it will be necessary to draw up a separate, special order. It is not allowed to form one order for any specific period. Compliance with this rule is strictly mandatory.

Regardless of the nature of the work performed, the employer is obliged to provide the employee with a choice of compensation: in the form of additional payment or provision of additional rest time.

Overtime is in most cases an emergency measure and employers do not resort to it often. But often involvement in such work takes place on an illegal basis. If such incidents are detected, the employee must contact the labor inspectorate.

Video: Working outside of working hours