Overtime is not. Features of overtime work. Overtime work is not considered

According to article 99 of the Labor Code of the Russian Federation, overtime work is considered labor activity, in which an employee is involved by the employer to perform his duties for a time exceeding the established working hours.

If an employee of the company under an employment contract has unlimited working terms, and the employee himself periodically remains at his workplace after the end of the working day or starts working earlier than his colleagues, then these delay times will not apply to overtime work.

At the present time, the legislation of the Russian Federation states that employees can be involved in work, the time of which exceeds the established limit, both in the event of an emergency (road accident, technical work, accident, etc.), and in other circumstances requiring the adoption of such measures.

What is overtime?

The involvement of an employee in additional working hours should only be carried out if he gives his consent in writing. The employer must take into account the position of the elected member of the primary union.

Article 99 of the Labor Code of the Russian Federation indicates cases when a person should be attracted to additional work activities only in case of his consent, expressed in writing:

if there is a need to complete an already started work activity, which, due to a sudden delay associated with technical production conditions, could not be implemented within the timeframe set on the schedule.

Additional hours are given only if the failure to complete the work activity can cause damage to the property of the enterprise (this property includes the property of the employer and property transferred to the organization for temporary use, for which the employer is responsible), which was received from the organization of the state or municipal type, or lead to a threat to human life;

during temporary work activities related to the repair / restoration of mechanical devices or structures, when the failure of these objects can lead to the completion of work activities for a large number of workers;
in order to continue working in the event that the employee does not appear on the shift specified for him, if labor activity cannot be interrupted. In this situation, the main responsibility of the employer becomes the search for an employee who can act as a replacement.

Some workers, in order to be involved in overtime work, must, in addition to concluding a written contract, receive a medical certificate that will indicate the employee's suitability for performing additional work duties.

The issuance of a health conclusion is carried out in accordance with the decree of the Ministry of Health and Social Development of the Russian Federation of February 2, 2012 under number 441n. This category of workers includes:

People with disabilities;
Female representatives who have small children (age group - up to 3 years).

When establishing a complete (summarized) accounting of hours of work, the employer must necessarily specify the accounting period in the working rules. This must be done in order to correctly calculate the hours that the employee works overtime.

Also, the rate set for the accounting period should be equated to the rate set for a specific category of employees (should not exceed forty hours per week).

Who Can't Be Involved in Overtime Activities?

Not everyone can work beyond measure.

The following categories of employees may not be involved in additional work:

Women in position;
Workers who have not reached the age of eighteen. True, there are exceptions, this mainly concerns media workers engaged in creative activities, cinematic organizational structures, video and television filming teams, entertainment organizations, as well as other persons who create and exhibit cultural works. This rule is taken into account by the Government of the Russian Federation and is confirmed by the approval of the 3-party commission of the Russian Federation, which is responsible for regulating relations of a social and labor type;
Employees of the company during the functioning of the student contractual obligations;
Other categories of citizens in accordance with the norms of the Labor Code and other legislative acts in force at the federal level.

In addition, article number 99 of the Labor Code of the Russian Federation provides for situations when an employee of a firm or enterprise can be involved in employment by an employer without mandatory consent:

during the implementation of work activities, the need for which arises when it is necessary to prevent a catastrophe, an emergency at work or to eliminate negative consequences caused by a technical failure or a natural disaster;
during the period of socially important work aimed at eliminating circumstances that disrupt the stable operation of centralized water supply systems, gas supply systems, power plants, as well as transport structures;
during the implementation of work activities, due to the need to introduce a state of emergency or VP, or the urgency of work in critical conditions. This applies mainly to catastrophic consequences, which include fires and earthquakes. The rule also applies to other situations that can pose a threat to the lives of townspeople.

It must be said that the time for which the performance of additional work activities is allocated cannot exceed 4 hours for an employee in a period of 2 days and 120 hours per year.

The employer in such a situation must ensure that the duration of overtime work is correctly recorded for each individual employee.

The time sheet of the work schedule represents the time that was worked overtime in the form of a letter designation "C" or numerical coding.

If workers do not have standardized hours of work, then they will not be paid for overtime work. Instead, the additional working period worked will be compensated for by vacation.

How is overtime paid?

The wages are higher than in normal work.

The rules for remuneration for overtime work are spelled out in article one hundred and fifty-second of the Labor Code of the Russian Federation. This article states that payment for additional work activities should be carried out:

For the first 2 working hours - in the amount of one and a half cost;
Over the next period, it doubled.

The amount of wages paid for completing additional work activities can be established both by collective agreement and by local regulatory law or an employment contract.

Also, an employee, on his own initiative, may demand that overtime work be rewarded not with a higher salary, but with additional days off. At the same time, the rest time should not exceed the period during which the overtime work was done.

There is also a small nuance in the document, which is associated with the additional payment for overtime work duties with full accounting of hours worked. Members of the Ministry of Health and Social Development represent the following position: in case of full accounting of the time for which labor activity was carried out, additional payments will be made after the end of the accounting period.

Nevertheless, the official documents of the Armed Forces of the Russian Federation indicate that such a provision contradicts Clause 5.5. This paragraph states that the use of regimes that establish flexible work hours at various enterprises and structural organizations is possible only in full compliance with the decree of the State Labor Committee.

It says that when overtime work is carried out by workers performing their work duties in a flexible schedule, hourly accounting of this activity is carried out in a summary form in full compliance with the recorded accounting period.

This means that overtime is the working time that was worked in excess of the norm accepted for this stage.

Payments are made in accordance with the rules of the current legislation.

For example, if an employee worked overtime for about thirty hours (two weeks of the specified period), then the original amount will be paid to him for twenty-eight hours, the remaining two hours will be paid twice.

Calculation of the salary for overtime work

An example of calculating overtime pay.

To understand how the salary of an employee doing overtime work is calculated, consider an example.

An employee of the institution has been assigned a complete record of the time during which he performs his work. The accounting period is one month, and the shift time is twelve hours.

This employee has an hourly salary of 180 rubles per hour. In the last month of summer, he worked fourteen shifts, which corresponds to 168 hours, which is the standard duration of work.

Also in August, due to some circumstances at work, this worker had to perform additional work duties. The period of overtime work was 2 hours per shift, and there were 3 such shifts in total.

Overtime work carried out at the enterprise must be paid in accordance with article 152 of the Labor Code of the Russian Federation. Now you need to carry out a payroll calculation.

Since the employee worked on an overtime schedule of 2 hours per full shift, and the total number of shifts was three times / month, in the end the time spent on overtime work will be 6 hours (two hours are multiplied by three. So, the additional payment for overtime work will total 1,620 rubles.

The procedure for calculating the hourly tariff scheme from a flat rate for a month is determined by a letter from the Ministry of Health dated July 2, 2014.

It talks about how the hourly discount rate is calculated in order to calculate the amount of additional payment for overtime work by employees of medical institutions who work in accordance with the schedule (in a twelve-month period on certain days there is an opportunity for shortcomings or processing from the established norm according to the calendar production sample), as well as whether it is legal that the average annual price of 1 hour is taken into account when calculating the hourly rate.

Thus, the Ministry of Health established that Article 152 of the Labor Code of the Russian Federation does not determine the procedure for setting the minimum wage for overtime work.

The officials found that when paying for overtime work, the rules of Article 153 of the Labor Code of the Russian Federation can be applied in practice.

This article indicates that the minimum pay in double amounts should constitute a dual rate plan that does not include incentive or compensatory cash payments.

Summing up the above, it must be said that Article 152 of the Labor Code of the Russian Federation provides complete information related to the amount of wages for overtime work. The organization in its own statutory constituent acts has the right to establish a different salary.

True, this size should not be lower than the minimum provided for in the Labor Code of the Russian Federation. You also need to remember that the additional payment for overtime work is part of the employee's salary, which means that it is also taxed by insurance companies.

Learn how to pay for overtime work in this video.

Form for accepting a question, write your

When you read the norms of the Labor Code regarding overtime work, as well as work on weekends, they seem extremely simple. Meanwhile, in practice, their application causes numerous difficulties.

What is written in the Labor Code ...

So let's first take a look at what is written in the Labor Code.

Overtime work - work performed by the employee on the initiative of the employer outside the established duration of working hours, daily work (shift), as well as work in excess of the normal number of working hours for the accounting period (in accordance with part 1 of article 99 of the Labor Code of the Russian Federation).

In part 5 of the same article 99 of the Labor Code of the Russian Federation, it is written that overtime work should not exceed four hours for each employee for two days in a row and 120 hours per year.

Article 152 of the Labor Code of the Russian Federation says that overtime work is paid for the first two hours of work at least in one and a half amount, for the next hours - at least in double the amount.

According to Article 153 of the Labor Code of the Russian Federation, work on a weekend and a non-working holiday is paid at least in double the amount:

piece-workers - not less than double piece-rate rates;
employees whose work is paid at daily and hourly rates - in the amount of at least double the daily or hourly rate;
employees receiving a monthly salary - in the amount of at least a single daily or hourly rate in excess of the salary, if work on a weekend and a non-working holiday was performed within the monthly norm of working time, and in the amount of at least double hourly or daily rate in excess of the salary, if work produced in excess of the monthly rate.

Let's explain these norms with simple examples.

So, we have given the norms of the Labor Code. Now we will try to explain with simple examples how to apply these provisions.

What is overtime

So, overtime work is work performed by an employee at the initiative of the employer outside the established working hours:

daily work (shift) (see Example 1), and
work in excess of the normal number of working hours for the accounting period (see Example 2).

Overtime restrictions

Overtime work must not exceed four hours for each employee on two consecutive days and 120 hours per year. In this norm, too, at first glance, everything is simple.

Overtime pay

Overtime work is paid for the first two hours of work not less than one and a half times, for the next hours not less than twice. Well, everything here seems very simple too.

Continuation of Example 3

Continuation of Example 4

Continuation of Example 2

Payment at the weekend

Work on weekends and non-working holidays is paid at least in double the amount:

piece-workers - not less than double piece-rate rates (see Example 8);
employees whose work is paid at daily and hourly rates - in the amount of at least double the daily or hourly rate (see Example 9);
employees receiving a monthly salary - in the amount of at least a single daily or hourly rate in excess of the salary, if work on weekends and non-working holidays was performed within the monthly norm of working time, and in the amount of at least double hourly or daily rate in excess of the salary, if work produced in excess of the monthly rate (see Example 10).

Using simple examples, we have explained how the law works. And now let's analyze the more complicated "tasks".

Are overtime and weekend work the same thing?

So, it would seem that everything is simple, but in fact, the norms of our legislation are drawn up in such a way that we often do not know how to apply them. Let's think about whether overtime and weekend work are the same? If you try to answer this question, you will find that in some cases we equate these concepts with each other, and in some we consider them different from each other. Moreover, we are usually guided by common sense, and not by the literal rule of the law. Let's give a concrete example.

In part 5 of article 99 of the Labor Code of the Russian Federation, it is written that overtime work should not exceed four hours for each employee for two days in a row and 120 hours per year. Agree, when we read the first half of this sentence, we are assuming that weekend work and overtime work are completely different things. And the norm, according to which an employee must work no more than 4 hours for 2 days in a row, has nothing to do with weekends. After all, the employee usually works on Saturday or Sunday for 8 hours. But when we read the second half of the sentence (overtime work should not exceed 120 hours per year for each employee), most of us start from the diametrically opposite premise that overtime and work on weekends are the same thing. And 120 hours includes work on weekends. What are we guided by in this? Common sense! Although, in order to consider oneself absolutely right in this situation, part 5 of Article 99 of the Labor Code of the Russian Federation should have been formulated as follows: overtime work should not exceed four hours for each employee within two days (if we are talking about working days) in a row and 120 hours a year.

The situation is even more difficult when it comes to paying for work on weekends. In simple situations, everything is really clear: if a person works overtime on weekdays, then we pay for the first two hours of work in one and a half, and the next - in double. If a person is recruited to work on weekends, then the salary for all hours will be calculated at a double rate. Reading the rules regarding pay on weekends and for overtime work, we are absolutely sure that these are different things and you need to pay for such work in different ways. However, usually, if the organization involves employees for work on weekends, then they work 8 hours (the same as on weekdays), which are paid double, but not 13, as written in the letter. In this case, the dispute seems to be as follows. Workers, who appear to work 8 hours a day on a five-day work week, have been recruited to work on weekends. The organization of the enterprise, having read that article 153 of the Labor Code of the Russian Federation says that work on a weekend and a non-working holiday is paid at least double the amount, and multiplied the hourly wage rate when paid by 2. The State Labor Inspectorate, however, considered 5 hours that were worked outside 8 hours normal working hours, overtime. Therefore, in her opinion, overtime for the first two hours should be paid according to the formula: double pay for a day off is multiplied by one and a half for overtime work, plus for the next three hours, pay is made according to the formula: pay double (for a day off) is multiplied by 2 (for overtime work). The logic seemed strange to the organization, since at first glance it seems that double the size for work on the day off includes payment for the fact that the employee works extra time. Of course, this situation is controversial from the point of view of legal assessment, because in this case the legislation can be turned this way and that.

Let us turn again to Article 99 of the Labor Code of the Russian Federation, according to which overtime is considered to be work performed on the initiative of the employer outside:

Normal working hours.
Daily work (shift).
Work in excess of the normal number of hours worked during the reference period.

On the one hand, the logic of labor inspection seems to be correct. Indeed, if the duration of daily work (shift) is 8 hours, then all the rest of the time that has gone beyond this limit is work outside the limit of daily work (shift). That is, it should be regarded (see paragraph 2 of the list) as overtime and paid according to the rules of Article 152 of the Labor Code of the Russian Federation, which says that overtime is paid for the first two hours of work at least one and a half, and for the next hours - at least than double the size. On the other hand, work on a day off is always work outside the normal working hours (see point 1). Indeed, in this case, a person will work more than 40 hours a week. But no one says that the first two hours of work on the day off must be paid at first in double the amount, multiplied by one and a half, and the subsequent hours - in double the amount, multiplied by two. But if the number of hours worked by him does not deviate from the normal duration of the work shift, there is no talk of paying for this day under the rules of Article 152.

Since there is no judicial practice in the application of this article, as there is no clarification on this issue, it is impossible to say which of the parties is absolutely right. After all, the legislation here can be turned in one direction or the other. In addition, it is not clear: if the extra 5 hours were regarded as overtime, why was it not qualified as an offense, because, in accordance with Article 99 of the Labor Code of the Russian Federation, overtime work should not exceed four hours for each employee for two consecutive days. Well, on my own behalf, you can advise: so that such disputes with the labor inspectorate do not arise, do not force the employee to work on a day off for more than normal working hours on weekdays.

How to pay for overtime work and work on weekends with the summarized accounting of working hours?

Document fragment

Article 104 of the Labor Code of the Russian Federation "Summarized recording of working hours"

In organizations or when performing certain types of work, where, according to the conditions of production (work), the daily or weekly working hours established for this category of workers cannot be observed, it is allowed to introduce a summarized accounting of working hours so that the working hours for the accounting period (month , quarter and others) did not exceed the normal number of working hours. The accounting period cannot exceed one year.

The procedure for the introduction of summarized accounting of working hours is established by the internal labor regulations of the organization.

Overtime and weekend wages are often problematic with aggregated time tracking. So, let's try to figure out how payment is made using simple examples.

Usually, the summarized accounting of working time is carried out at enterprises with a shift schedule. In this case, as a rule, either a year or a month is taken for the accounting period. If the number of hours in the accounting period exceeds the normal duration of working time, then the first two such hours are paid in one and a half amount, the rest - in double.

When scheduling work, you should take into account two norms of the Labor Code. Firstly, the norm according to which work for two shifts in a row is not allowed, and secondly, the norm according to which continuous rest must be at least 42 hours per week.

Sometimes, according to the schedule, the working day of an employee working in shifts falls on a generally recognized day off or holiday. The question arises: how to pay for work on such days, at double or single rates? The following answer can be given to it: if the working day of such an employee falls on a holiday, his payment should be made at double rates (even if the number of hours in the accounting period does not exceed the normal number of hours).

As for weekends, the corresponding norm of the Labor Code of the Russian Federation refers to days off for specific employees, and not on generally accepted days off in general. In other words, if, for example, some working day of an employee falls on Sunday, it must be paid in a single amount, but if you ask a person to leave on the day when he has to rest according to the schedule, then this work must be paid in double size (even if the number of hours in the accounting period does not exceed the normal number of hours).

At some enterprises, management and personnel officers sincerely believe that if a summary record of working time is kept in production, then a person can be forced to go out on his day off, according to the schedule, and if at the same time the number of hours during the accounting period does not go beyond the normal range, pay such work in a single size. This approach is absolutely wrong. And if in the generally recognized weekend work of the "shift worker" is paid in a single amount, then in his own - with compensation for such injustice - in double.

Let's try to understand the situation described by the author of the letter. If we look at the production calendar, we can see that in January the normal working hours are 128 hours. A work schedule was drawn up, according to which the employee had to work 156 hours, including 32 holiday hours. As we can see, the employee, according to the schedule, must work significantly more than the normal working hours in January. But since the accounting period is a year, in the following months, in theory, such overwork should be compensated (that is, the person making the schedule should try to make the employee work less than the normal number of hours in February, March, etc.) ... If a person worked according to the schedule, then we would pay him in double the amount of 32 holiday hours, in a single amount - the remaining hours (156 - 32 \u003d 124 hours). And at the end of the year we would have seen if our employee has "extra" hours. If they were available, they would have made an appropriate additional payment (taking into account the fact that the first two hours of overtime work are paid in a single amount, and the next - in double). However, the employee worked 184 hours instead of 156 hours, which is 28 hours more! Of all hours worked, 48 are holidays. In this case, a number of questions arise: why did it happen that the employee did not work on schedule? With such a number of hours, was it possible to comply with the requirements of the legislation, according to which continuous weekly rest should be at least 42 hours and work during two shifts is not allowed? Without seeing the work schedule and time sheet, one can only assume that the employee went to work on his days off. Accordingly, 48 hours on holidays and 28 hours on weekends in this case must be paid in double amount. The rest of the working hours are paid in single. Whether there is overtime that needs to be paid in an increased amount, you will determine at the end of the year.

It happens that the employer is forced to hire employees outside the established working hours, for example, in the evenings with the usual 8-hour working day or on weekends. Such work is (Article 97 of the Labor Code of the Russian Federation):

either overtime;
or work on irregular working hours.

Let's talk about overtime and see what is the allowable amount of overtime for each employee.

Revisions under the Labor Code

Overtime is the work performed by an employee (Article 99 of the Labor Code of the Russian Federation):

firstly, at the initiative of the employer;
secondly, outside the established duration of daily work (shift) for the employee, and in the case of summarized accounting of working time - in excess of the normal number of working hours for the accounting period.

As you can see, in order to recognize overtime work, both conditions must be met. For example, if an employee performs some kind of work at the end of his working day on his own initiative, then such work is not overtime and should not be paid as overtime (Letter of the Ministry of Labor dated 05.03.2018 N 14-2 / \u200b\u200bB-149). In addition, for such work, the employer is not obliged to provide the employee with additional days of rest (Letter of Rostrud dated March 18, 2008 N 658-6-0).

Note that involvement in overtime work should not be systematic (Letter of Rostrud dated 07.06.2008 N 1316-6-1). That is, the employer must initially plan the work of employees so as not to include overtime in the work schedule.

How many hours per month can you work under the Labor Code

Overtime work must not exceed 4 hours for each employee within 2 consecutive days. There is another limitation: overtime work should not exceed 120 hours per year for each employee (Article 99 of the Labor Code of the Russian Federation).

In cases where a summarized recording of working hours is established for an employee, it is important to consider the following. The employer determines the accounting period in the internal labor regulations: a month, a quarter, or another period up to a year (Article 104 of the Labor Code of the Russian Federation). The norm of working time for the reference period should be equal to the norm established for the corresponding category of workers, but not exceed 40 hours per week. And only after the end of the accounting period it will be clear whether any work for the employee was overtime and whether it should be additionally paid.

For example, for an employee, the accounting period is a quarter. The norm of working hours for a 40-hour work week in the first quarter of 2020 is 456 hours. Suppose a person has worked 458 hours during this period. So 2 hours should be paid as overtime. We talked about the payment of overtime work with the summarized accounting of working time.

And it is important to know the following. Even if the number of overtime hours worked by an employee is more than the maximum specified in the Labor Code, the employer must still pay for such overtime in full (Definition of the Constitutional Court of 19.12.2019 N 3363-O).

Overtime work under harmful working conditions

A shortened 36-hour working week has been established for workers employed in jobs with harmful working conditions. Can they be involved in overtime work? According to general rules, it is possible if the following conditions are met (Article 99 of the Labor Code of the Russian Federation):

employees have given written consent to perform overtime work or this is an exceptional case of engaging in overtime work when the employee's consent is not required;
overtime work should not exceed the maximum duration given above.

In accordance with Art. 97 of the Labor Code of the Russian Federation, the employer has the right to attract an employee to work outside the duration of his working time for overtime work.

The article offered to your attention reveals the concept of overtime work, considers guarantees and compensations that are provided to an employee when hired outside the working hours, as well as the procedure for processing documents when attracting an employee to overtime work.

DEFINITION OF SUPER-TIME WORK

Overtime is work performed on the initiative of the employer in excess of the standard of working time established for the employee during the working day (shift) or during the accounting period, and in the case of summarized accounting of working time - in excess of the normal number of working hours for the accounting period.

For workers with shorter working hours, work outside of working hours is also considered overtime.

It is important to note that the normal working hours are 40 hours per week (Article 91 of the Labor Code of the Russian Federation). Reduced working hours are established for certain categories of workers.

These include:

· Employees under the age of 18 (Article 92 of the Labor Code of the Russian Federation);

· Employees who are invalids of I or II groups (Article 92 of the Labor Code of the Russian Federation);

Workers employed in work with harmful and (or) dangerous working conditions (Article 92 of the Labor Code of the Russian Federation, decree of the USSR State Committee for Labor, the Presidium of the All-Union Central Council of Trade Unions of the USSR, dated 25.10.1974 No. 298 / P-22 "On approval of the List of industries, shops, professions and harmful working conditions, work in which gives the right to additional leave and a shorter working day ");

· 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);

· Medical workers (Article 350 of the Labor Code of the Russian Federation).

Thus, for these categories of workers, overtime work will be considered work in excess of the shortened working time (daily work, shift) established for them (Article 94 of the Labor Code of the Russian Federation).

Engaging an employee to work overtime by the employer is allowed with his written consent in the following cases:

1) if necessary, perform (complete) work begun, which, due to an unforeseen delay in the technical conditions of production, could not be performed (completed) during the working hours established for the employee, if non-performance (non-completion) of this work may entail damage or loss of property the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), state or municipal property, or endanger the life and health of people;

2) during the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the termination of work for a significant number of employees;

3) to continue work in the absence of a shift worker, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift with another employee.

The employee, as a general rule, has the right to refusefrom overtime work, which must notify the employer in writing. An employee's refusal to perform overtime work cannot be equated with a violation of labor discipline. However, in the cases listed in Part 3 of Art. 99 of the Labor Code of the Russian Federation, this rule does not apply, that is, the employee's consent to overtime work not required... Such cases include:

1) performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;

2) the performance of socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of water supply, gas supply, heating, lighting, sewerage, transport, communications systems;

3) the production of 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 conditions, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases that pose the life or normal living conditions of the entire population or part of it are at risk.

Labor legislation establishes restrictions on the use of overtime work for certain categories of workers, as well as its duration.

Can't be attractedovertime work:

· Pregnant women (part 5 of article 99 and part 1 of article 259 of the Labor Code of the Russian Federation);

· Workers under the age of 18 (part 5 of article 99 of the Labor Code of the Russian Federation). The exception is minor athletes (part 3 of Art. 348.8 of the Labor Code of the Russian Federation), as well as creative workers of the media, cinematography organizations, television and video filming teams, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or ) performance (exhibiting) 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 No. 252.

WITH written consent and in the absence of a prohibitionto work overtime for health reasons, in accordance with a medical certificate, it is allowed to engage in overtime work:

· Disabled people (part 5 of article 99 of the Labor Code of the Russian Federation);

· Women with children under the age of three (part 5 of article 99 and part 2 of article 259 of the Labor Code of the Russian Federation);

· Mothers and fathers raising children under the age of five without a spouse (spouses 2 and 3, article 259 of the Labor Code of the Russian Federation);

· Workers with disabled children (parts 2 and 3 of article 259 of the Labor Code of the Russian Federation);

· Workers caring for sick family members (parts 2 and 3 of article 259 of the Labor Code of the Russian Federation).

If an employee is delayed on his own initiative, according to Rostrud's letter dated 18.03.2008 No. 6586-0, such work is not considered overtime.

Moreover, irregular working hoursalso does not amount to overtime work.

Irregular working hours are a special mode of work, which gives the employer the right to occasionally involve an employee in performing labor functions outside the established working hours (Article 101 of the Labor Code of the Russian Federation).

The condition on the regime of irregular working hours must be enshrined in the employment contract (part 2 of article 57 of the Labor Code of the Russian Federation). Therefore, by signing an employment contract with the condition of irregular working hours, the employee agrees to work in such a mode.

Work performed on irregular working hours is not subject to additional payment.

Instead, such employees are provided with an additional annual paid leave of at least three calendar days (part 1 of article 119 of the Labor Code of the Russian Federation).

Work on civil contracts(for example, assignments, paid services, contracts, etc.) carried out in their free time, as well as work under an employment contract on part-time(both external and internal) does not apply to overtime.

Consent to work overtime cannot be recorded in an employment contract; a separate consent of the employee must be obtained for each specific case of overtime work.

DURATION AND PAYMENT FOR OVER-TIME WORK

Article 99 of the Labor Code of the Russian Federation provides the maximum number of hours allowed for employeesovertime work per year and for two consecutive days. Overtime work must not exceed 4 hours for each employee on two consecutive days and 120 hours per year.

Industry agreements, collective agreements, regulations on working hours and rest hours for certain categories of workers may also establish a maximum monthly number of hours of overtime work. This applies, for example, to employees of the railway transport, subway, certain categories of drivers, forestry workers, etc. In these cases, the rules of special legal acts apply.

For example, for car drivers, with the summarized accounting of working time, work during the working day (shift) should not exceed 12 hours. The exceptions are cases when it is necessary to finish the trip or the shift driver did not appear (clause 23 of the Regulations on the specifics of the working hours and rest time of drivers cars (approved by order of the Ministry of Transport of Russia dated 20.08.2004 No. 15)). However, a 12-hour day can be set by the driver's schedule, in which case there will be no overtime.

It is the employer's responsibility to keep accurate records of each employee's overtime.

The Labor Code of the Russian Federation provides for a special payment orderovertime work.

By the way, previously overtime was considered to be work in excess of normal working hours. There are a sufficient number of categories of workers who worked for a reduced duration of working hours and for whom the concept of overtime work did not exist, for example, all medical and pedagogical workers. They had no right to be involved in overtime work and, accordingly, to pay for it. According to the current edition of the Labor Code of the Russian Federation, these categories of workers can now work overtime.

In Art. 152 of the Labor Code of the Russian Federation regulates the issue of remuneration of employees involved in overtime work in accordance with the established procedure. Applying the established rules, it should be noted that currently:

1) there are no differences in the remuneration of employees involved in overtime work, depending on whether the employee works piece-work or on the basis of a time-based pay system;

2) specific wages for overtime work can be determined in an employment contract or in a collective agreement, but not lower than those established by Art. 152 of the Labor Code of the Russian Federation, which determines the minimum wage for overtime work. In this case, overtime work must be paid in an increased amount, regardless of whether the employer has followed the procedure for engaging in overtime work.

So, if during the court hearing it is established that the involvement in overtime work was not formalized in writing, but there was an oral order from one of the managers, the work should also be considered overtime. Evidence of the employee performing overtime work, in addition to the explanations of himself and the witnesses, may be, for example, the waybills of a car, in which the employer's officials certified the facts of the employee performing overtime work, and not only by the time the car was returned to the garage, but also by the time departure and return on specific routes after the end of the working day.

According to the conclusion of Rostrud (letter of 23.06.2005 No. 956-6-1), if the employer violates the procedure for engaging in overtime work (for example, exceeding the maximum permissible number of hours of overtime work per year), this should not affect the implementation of the employee's right to pay for overtime work.

In all cases, for the first 2 hours of overtime work (as a general rule - per day, and in the case of summarized accounting - for the accounting period), the employee's work is paid no less than one and a halfsize, and for the next hours - not less than doublesize. In other words, you cannot pay less than the limits established in Art. 152 of the Labor Code of the Russian Federation, but you can pay more.

Working conditions that worsen the employee's position in comparison with the legislation are recognized as invalid. They are considered as such both in those cases when they are established by agreement of the parties to the employment contract or provided for by a collective agreement, and in those cases when they are established by local regulations. At the same time, pay clauses, labor and collective agreements may impose, for example, higher remuneration for overtime work.

The Labor Code of the Russian Federation allows not only increased pay for overtime hours, but also, as an alternative, the provision at the request of the employee rest timefor overtime work - no less than the number of hours that the employee worked overtime.

The employee's desire to receive this type of compensation for overtime work must be expressed by him in writing, while the employer has no right to refuse the employee and is obliged to provide him with additional rest time. The time of use of this type of compensation must be agreed by the parties.

Article 152 of the Labor Code of the Russian Federation does not establish the maximum duration of additional rest time, limiting only its minimum limit: not less than the time worked overtime. The specific duration of the specified time can be established in a collective agreement, in an individual labor agreement or in a local regulatory act of the employer.

Since Art. 99 of the Labor Code of the Russian Federation connects the involvement of an employee to overtime work with his written consent, it is advisable to determine the type of compensation in it, as well as the time for using additional rest time when the employee chooses this type of compensation.

DOCUMENTAL REGISTRATION OF ATTRACTING AN EMPLOYEE TO SUPER-TIME WORK

When involved in overtime work, each such case must be processed separately.

As already noted, it is not allowed to include in a collective agreement, a local normative act, an employment contract provisions containing the employee's consent to perform overtime work, for example: “ By order of the employer, the employee (s) agree to work overtime».

Initially follows fix a fact, which is the basis for bringing in overtime work.

The most common case is the absence of a shift to work, which does not allow for a break. Failure to appear (or any other reason for engaging in overtime work) should be notified to the head of the enterprise or other official who is authorized to make decisions on attracting employees to overtime work. For this, the head of the department compiles memo... It describes the incident and justifies the need to involve workers in overtime work.

The job description or order can secure the right of the immediate supervisor to notify employees about the need to work overtime. In the absence of such powers, the memo is sent to the head of the enterprise.

To notify an employee involved in overtime work and obtain his consent on a memo (before sending it to the supervisor), you should obtain consent visaemployee.

As already noted, in almost all cases, with the exception of those listed in Part 3 of Art. 99 of the Labor Code of the Russian Federation, it is necessary to obtain the consent of the employee to engage him in overtime work. In this case, employees of preferential categories should be notified in writing of their right to refuse to perform overtime work. This information can be included in the text of a memo or an employee notification to work overtime.

If the employee has refused, then he cannot be involved in overtime work. Moreover, for this, a disciplinary penalty cannot be applied to him under Art. 192 of the Labor Code of the Russian Federation. An exception is made in cases where the consent of the employee to engage him in overtime work is not required.

Overtime in timesheetmarked with the letter code "C" or the digital code "04", under which the time spent by the employee on overtime is stamped. For employees who keep a regular (daily) record of working hours, on the days when they did overtime, it is recommended to take into account the normal and overtime working hours in two lines of the timesheet. For employees who have a summarized recording of working hours, overtime hours are recorded in the timesheet at the end of the accounting period.

O. O. Sherstneva,
legal adviser for civil matters

Search Lectures

Overtime work must not exceed 4 hours for each employee on two consecutive days and 120 hours per year.

Labor Code of the Russian Federation, Article 93. Part-time working hours

By agreement between the employee and the employer, part-time (shift) or part-time work week can be established both upon hiring and subsequently. The employer is obliged to establish a part-time (shift) or part-time working week at the request of a pregnant woman, one of the parents (guardian, trustee) with a child under the age of fourteen (a disabled child under the age of eighteen), as well as a person exercising caring for a sick family member in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation.

When working on a part-time basis, the employee is paid in proportion to the time worked by him or depending on the amount of work performed by him.

Work on a part-time basis does not entail any restrictions for employees on the duration of the main annual paid leave, the calculation of seniority and other labor rights.

Labor Code of the Russian Federation, Article 96. Work at night

Night time - time from 22:00 to 6:00.

The duration of work (shift) at night is reduced by one hour without further working off.

The duration of work (shift) at night is not reduced for employees who have a reduced duration of working hours, as well as for employees hired specifically for work at night, unless otherwise provided by the collective agreement.

The duration of work at night is equal to the duration of work in the daytime in those cases when it is necessary for working conditions, as well as in shift work with a six-day working week with one day off. The list of these works can be determined by a collective agreement, local normative act.

The guarantees and benefits provided to women in connection with motherhood apply to fathers raising children without a mother, as well as to guardians (curators) of minors (see Art. 264 of the Labor Code of the Russian Federation).

Not allowed to work at night: pregnant women; employees under the age of eighteen years, with the exception of persons participating in the creation and (or) performance of works of art, and other categories of employees in accordance with this Code and other federal laws. Women with children under the age of three, disabled workers, workers with disabled children, as well as workers caring for sick members of their families in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation , mothers and fathers raising children under the age of five without a spouse, as well as guardians of children of this age, may be involved in night work only with their written consent and provided that such work is not prohibited by them for health reasons in according to the medical report. At the same time, these employees must be informed in writing of their right to refuse to work at night.

Labor Code of the Russian Federation, Article 101. Irregular working hours

Irregular working day is a special mode of work, according to which individual employees can, by order of the employer, if necessary, occasionally be involved in the performance of their labor functions outside the established working hours. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.

Labor Code of the Russian Federation, Article 106. The concept of rest time

Rest time is the time during which the employee is free from work duties and which he can use at his own discretion.

Labor Code of the Russian Federation, Article 107. Types of rest time

The types of rest time are:

Ø breaks during the working day (shift);

Ø daily (inter-shift) rest;

Ø weekends (weekly uninterrupted rest);

Ø non-working holidays;

Ø vacation.

Labor Code of the Russian Federation, Article 114. Annual paid holidays

Employees are granted annual leave with the preservation of their place of work (position) and average earnings.

Labor Code of the Russian Federation, Article 115. Duration of annual basic paid leave

The main annual paid leave is provided to employees for 28 calendar days.

Annual basic paid leave of more than 28 calendar days (extended basic leave) is granted to employees in accordance with this Code and other federal laws.

Labor Code of the Russian Federation, Article 122. The procedure for granting annual paid vacations

Paid leave must be granted to the employee annually.

The right to use leave for the first year of work arises for the employee after six months of his continuous work with the given employer. By agreement of the parties, the employee may be granted a paid leave before the expiration of six months.

Before the expiration of six months of continuous work, paid leave at the request of the employee must be granted:

women - before or immediately after maternity leave;

employees under the age of eighteen;

employees who have adopted a child (children) under the age of three months;

in other cases stipulated by federal laws.

Leave for the second and subsequent years of work may be granted at any time of the working year in accordance with the sequence of granting annual paid leave established by the employer.

Payment and regulation of labor.

Labor Code of the Russian Federation, Article 129.

Basic concepts and definitions

Wages (remuneration of an employee) - remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation payments (additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, work in special climatic conditions and in territories exposed to radioactive contamination, and other compensatory payments) and incentive payments (additional payments and incentive payments, bonuses and other incentive payments).

Tariff rate is a fixed amount of remuneration of an employee for fulfilling a labor standard of a certain complexity (qualification) per unit of time, excluding compensation, incentive and social payments.

Salary (official salary) - a fixed amount of remuneration of an employee for the performance of labor (official) duties of a certain complexity for a calendar month, excluding compensation, incentive and social payments.

Base salary (base official salary), base wage rate - the minimum salary (official salary), the wage rate of an employee of a state or municipal institution carrying out professional activities in the profession of a worker or an employee's position, included in the corresponding professional qualification group, excluding compensation, incentive and social payments.

Labor Code of the Russian Federation, Article 131.

What is the maximum overtime for an employee?

Forms of remuneration

Payment of wages is made in cash in the currency of the Russian Federation (in rubles).

In accordance with the collective agreement or labor agreement, upon a written application from the employee, remuneration may be made in other forms that do not contradict the legislation of the Russian Federation and international treaties of the Russian Federation. The share of wages paid in non-cash form cannot exceed 20 percent of the accrued monthly wages.

Payment of wages in bonds, coupons, in the form of promissory notes, receipts, as well as in the form of alcoholic beverages, narcotic, poisonous, harmful and other toxic substances, weapons, ammunition and other items in respect of which there are bans or restrictions on their free circulation , not allowed.

Overtime work and their limitations

Overtime is considered to be work performed by an employee in excess of the working hours established for him, provided for by the internal labor regulations. In this case, the work is recognized as overtime only in those cases when it is performed at the suggestion, order or with the knowledge of the employer.

The Labor Code provides for three different grounds for overtime work: employee consent; prescription of the law; condition of the collective agreement, agreement.

By virtue of the prescription of the law, overtime work is allowed only in the following cases: when performing work to prevent a public disaster, industrial accident; in the production of socially necessary work on water supply, gas supply, heating, lighting, transport.

Overtime work is not allowed: pregnant women; employees under the age of 18; workers studying on the job in general education institutions; exempted from overtime work in accordance with a medical certificate.

Overtime work should not exceed 4 hours for each employee on two consecutive days and 120 hours per year. This number does not include work performed by virtue of a legal requirement. The main compensation for overtime work is additional pay.

Rules for calculating overtime hours in the summarized recording of working hours

By agreement with the employer, the employee may also be given another day of rest.

Women with children aged 3 to 14 years, as well as disabled people can be involved in overtime work with their consent, while disabled people - only if such work is not prohibited in accordance with a medical certificate.

66. Time relax – the time established by law, during which the employee is free from performing his job duties and has the right to use it at his own discretion. There are two ways to regulate the length of the rest time: indirect and direct. An indirect method consists in the legislative limitation of the duration of working hours, a direct one - in the legislative consolidation of specific types of rest time. Rest time types: 1 Break during the working day (break for rest and meals - at least 20 minutes, not more than 4 hours). 2 Interday (daily) breaks are breaks in work between the end of one working day and the beginning of the next. There must be at least double the duration of work. 3 Weekly rest days - weekend. (can be used to compensate for deficiencies up to the weekly rate) Compensation for work on a day off can be provided in the form of another day of rest or monetary compensation not lower than the 2nd compensation. 4 Public Holidays. They are planned in advance in the work schedule and are included in the monthly working hours.

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From time to time, the question arises before the employer and employees: how to properly pay for the hours worked overtime (so-called overtime).

First of all, take into account the time - to clarify the number of hours worked in excess of the norm.

How many hours should overtime work not exceed?

Time tracking can be summarized: in this case, overtime overtime is paid for hours that exceed the rate for the accounting period. In this case, according to generally accepted practice, only two hours will be paid in one and a half amount, because with this approach, if the accounting period is not over, and the employee continues to work, "processing" automatically begins. Two and only two - in each accounting period in which there was processing.

IMPORTANT! Remember, summarized accounting is introduced just when, according to the conditions of activity, it is impossible to comply with the normal duration of working hours (Art.

104 of the Labor Code of the Russian Federation). However, the summarized accounting does not cancel the shift schedules. And then the question arises: should the hours worked in excess of the schedule on this particular day be considered overtime? According to a number of employees, despite the fact that summarized accounting has been introduced, the established shift schedule also normalizes the employee's working hours, and it is the daily rate. And thus, it is the "day" processing that should be applied. But this is not true! Article 99 of the Labor Code of the Russian Federation directly indicates that, with the summarized accounting of time, processing is work in excess of the normal number of hours for the accounting period.

IMPORTANT! Based on the foregoing regarding the correct accounting of processing: you should not try to cheat and, in order to pay less, calculate the daily processing (if any) for any day in order to determine how many hours to pay in one and a half, and how many in double. This is a violation of labor laws.

If the summarized accounting of time is not established, any duration in excess of the normal duration of the shift will be considered overwork. Accounting should be kept accurately (Article 99 of the Labor Code of the Russian Federation) - but again, it is not disclosed how accurate. Strictly speaking, it will not be a mistake to take into account the minutes of overwork (i.e., an employee who has worked 45 minutes will have in the report card as overworking not a rounded hour, but only exact 0.75 hours).

After you have decided on the number of hours, the moment comes to calculate the "hourly" cost. If you have an hourly rate, then you use it as a basis: one and a half rate rates for the first two hours, two rates for the next (Article 152 of the Labor Code of the Russian Federation).

But! Article 152 of the Labor Code of the Russian Federation does not disclose what exactly is meant by the term "one and a half size" and how exactly it is determined. Average daily earnings divided by daily work hours? Specific daily rate (daily salary) divided by the number of hours worked on a given day?

There is a generally accepted approach, given in Article 153 of the Labor Code of the Russian Federation, which clarifies wages on weekends and non-working holidays for all forms of remuneration. But how correct would it be to apply such a uniform for overtime?

There is a letter from the Ministry of Health of the Russian Federation No. 16-4 / 2059436 dated 02.07.2014, which indicates that you can use the rules of Article 153 of the Labor Code of the Russian Federation - using a tariff or rate without taking into account compensation and incentive payments. True, one should not forget that this means that the tariff or rate already includes “northern”, “regional” and “harmful” markups. Otherwise, they must be charged for "processing".

IMPORTANT! This letter is not a regulation.

Further in the letter, the Ministry of Health indicates that to calculate the hourly wage rate, it is most reasonable to divide the salary by the average monthly number of hours (the annual working time divided by 12). In this case, in different months, the employee will receive the same payment for processing, which, in principle, is reasonable. As for the various allowances and surcharges for "overtime" - we consider the position of the Ministry of Health ("to include in one and a half and double pay all allowances and surcharges established in the organization or some of them") is not entirely correct. Surcharges and allowances should be applied to all working hours, not part of it. Otherwise, there is a deterioration in the position of the employee in terms of ensuring payment for the same work performed during "normal" hours and "overtime".

We also recall that to determine the average daily earnings, they use the methodology given in Article 139 of the Labor Code of the Russian Federation (average wages). Which, strictly speaking, by the letter of the law is not applicable to the calculation of "overtime", but can be used to determine the average daily earnings, and, accordingly, to calculate wages in proportion to the overtime worked (ie, dividing the average earnings by the normal length of the working day) ... However, there is a nuance here - the average daily earnings include previously made processing, payments and compensations, and not a "net" salary (rate, tariff).

Due to the fact that the procedure for determining the hourly rate (payment rate) is not legally established, you can set it yourself, and "legitimize" by adopting an appropriate internal document.

Remember only that you must not worsen the position of workers in comparison with the existing regulations.

Island area

Article 99. Overtime work

(as amended by Federal Law of 30.06.2006 N 90-FZ)

(see text in previous

Overtime work is work performed by an employee on the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of cumulative recording of working hours - in excess of the normal number of working hours for the accounting period.

Engaging an employee to work overtime by the employer is allowed with his written consent in the following cases:

3) to continue work in the absence of a shift worker, if the work does not allow a break.

Processing rate per year according to the RF Labor Code

In these cases, the employer is obliged to immediately take measures to replace the shift with another employee.

The employer may hire an employee to work overtime without his consent in the following cases:

1) during the performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;

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

(as amended by Federal No. 417-FZ dated 07.12.2011)

(see text in previous)

3) in the performance of 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 conditions, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases, endangering the life or normal living conditions of the entire population or part of it.

In other cases, involvement in overtime work is allowed with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.

It is not allowed to involve pregnant women, employees under the age of eighteen years, other categories of employees in overtime work in accordance with this Code and other federal laws. Involvement of disabled people, women with children under the age of three years, in overtime work is allowed only with their written consent and provided that it is not prohibited for them for health reasons in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation. In this case, disabled people, women with children under the age of three years, must be informed against signature of their right to refuse overtime work.

Overtime work must not exceed 4 hours for each employee on two consecutive days and 120 hours per year.

It is the employer's responsibility to ensure that each employee's overtime work is accurately recorded.

Art. 99 of the Labor Code of the Russian Federation. Overtime work

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