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

Article 99 Labor Code Russian Federation overtime work is labor activity, in which the employer engages the employee to perform his duties during the time exceeding the working hours established according to the schedule.

If an employee of the company has unlimited work periods under an employment contract, 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 periods will not apply to overtime work.

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

What is overtime?

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

Article 99 of the Labor Code of the Russian Federation indicates cases when a person should be involved in additional work activities only if his consent is expressed in writing:

if it becomes necessary to complete a work activity that has already begun, which, due to a sudden delay related to technical production conditions, could not be completed on schedule.

Additional hours are given only if the non-completion of 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 a state or municipal organization 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 malfunction of these objects can lead to the completion of work activities for a large number of employees;
in order to continue work in case of non-appearance of the employee in the shift determined for him, if labor activity cannot be interrupted. With such a schedule main responsibility the employer is looking for an employee who can act as a shift.

Some employees, in order to be involved in overtime work, must, in addition to concluding a written contract, obtain a medical certificate that will indicate the employee’s suitability for additional work. job duties.

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

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

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

Also, the norm established for the accounting period should be equal to the norm that is established for a specific category of employees (should not exceed forty hours per week).

Who is not eligible for overtime activities?

Not everyone can work overtime.

To additional labor activity The following categories of employees cannot be involved:

Women in position;
Employees who have not reached the age of eighteen. True, there are exceptions, this applies mainly to media workers involved in creative activities, cinematographic organizational structures, video and television filming groups, 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 fixed by the approval of the 3-sided commission of the Russian Federation responsible for regulating social and labor relations;
Employees of the company during the functioning of 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 where an employee of a firm or enterprise can be recruited 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, emergency in production or eliminate the negative consequences caused by a technical failure or natural disaster;
during the period of implementation of socially important works 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 an emergency or emergency, or the urgency of carrying out work in critical conditions. This applies mainly to catastrophic consequences, which include fires and earthquakes. The rule also applies to other situations that can endanger the lives of citizens.

It must be said that the time for which the performance of additional work activities is allotted 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 necessarily ensure the correct accounting of the duration of overtime work for each individual employee.

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

If employees do not have normal working hours, then they will not be paid for work that was performed overtime. Instead, the additional working period worked out will be compensated by vacation.

How is overtime paid?

The pay is higher than for regular work.

The rules for paying for work performed overtime are prescribed in article one hundred and fifty-two of the Labor Code of the Russian Federation. This article states that payment for additional labor activity should be carried out:

For the first 2 working hours - in the amount of one and a half cost;
For further time - in the double size.

The amount of wages paid for the performance of additional work activities can be established either by collective agreement or by local regulatory law, or employment contract.

Also a worker own initiative may require that overtime work be rewarded not with higher wages, but with extra days off. At the same time, the rest time should not exceed the period for which overtime work was done.

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

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

It states that when overtime work is carried out by employees performing their labor duties in flexible schedule, hourly accounting of this activity is carried out in summary form in full compliance with the fixed accounting period.

This means that overtime is work time, which was worked out in excess of the accepted for this stage norms.

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

For example, if an employee worked overtime for about thirty hours (two weeks of the specified period), then he will be paid in the initial amount for twenty-eight hours, the remaining two hours will be paid in double the amount.

Calculation of wages for overtime work

An example of calculating overtime pay.

To understand how the salary is calculated for an employee who performs overtime work, you can pay attention to an example.

The employee of the institution is assigned a full account of the time during which he performs his labor activity. The reference period is one month, and the shift time is twelve hours.

This employee has an hourly salary, the amount of which is 180 rubles per hour. In the last month of the 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 employee had to perform additional labor 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 we need to calculate the payroll.

Since the employee worked according to the overtime plan for 2 hours per full shift, and the total number of shifts was three times / month, then in the end the time spent on overtime work will be 6 hours (two hours multiplied by three. Thus, the additional payment for overtime activities will total 1620 rubles.

The procedure for calculating the hourly tariff scheme from a fixed 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 (during a twelve-month period on certain days there is an opportunity for underwork or processing from the established norm according to the calendar production sample), as well as whether it is legal that during the calculation of the hourly payment, the average annual price of 1 hour is specifically taken into account.

Thus, the Ministry of Health found that Article 152 of the Labor Code of the Russian Federation does not define the procedure for establishing 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 put into practice.

This article indicates that the minimum payment in double quantity should be double tariff plan, which will not take into account 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 regulatory constituent acts has the right to establish a different amount of wages.

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 salary of an employee of the company, which means that it is also taxed by insurance companies.

This video will show you how to pay for overtime.

Question form, write your

When you read the provisions of the Labor Code regarding overtime work, as well as working on weekends, they seem extremely simple. However, in practice, their application causes many difficulties.

What is written in the Labor Code ...

So, let's first see what is written in the Labor Code.

Overtime work - work performed by an employee at the initiative of the employer outside the established working hours, daily work (shift), as well as work in excess of the normal number of working hours for the accounting period (according to 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 consecutive days and 120 hours per year.

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

According to article 153 of the Labor Code of the Russian Federation, work on a day off and a non-working holiday is paid at least twice the amount:

pieceworkers - at least at double piecework 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 the work on a weekend and non-working holiday was carried out within the monthly norm of working hours, and in the amount of at least a double hourly or daily rate in excess of the salary, if the work produced in excess of the monthly norm.

Let's explain these rules with simple examples.

So, we brought the norms of the Labor Code. Now let's try to simple examples explain 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), as well as
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 at least one and a half times, for subsequent hours at least twice the amount. Well, here, too, everything seems very simple.

Continuation of Example 3

Continuation of Example 4

Continuation of Example 2

Weekend payment

Work on weekends and non-working holidays is paid at least twice:

pieceworkers - at least at double piecework 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 the work on a weekend and non-working holiday was carried out within the monthly norm of working hours, and in the amount of at least a double hourly or daily rate in excess of the salary, if the work was made in excess of the monthly norm (see Example 10).

Using simple examples, we explained how the norms of the law work. And now we will analyze the "tasks" more difficult.

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 the concepts of "overtime work" and "work on weekends" are identical? If we try to answer this question, it will be found that in some cases we equate these concepts with each other, and in others we consider them to be different from each other. Moreover, we are usually guided by common sense, and not by the literal norm of the law. Let's take a concrete example.

Part 5 of Article 99 of the Labor Code of the Russian Federation states that overtime work should not exceed four hours for each employee for two consecutive days and 120 hours per year. Agree, when we read the first half of this sentence, we assume that working weekends and working overtime 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, an 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 employee per year), most of us start from the diametrically opposite premise, according to which overtime work and weekend work are one and the same. And 120 hours includes work on weekends. What are we guided by? common sense! Although, in order to consider ourselves 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 for two days (if we are talking about working days) in a row and 120 hours a year.

An even more difficult situation arises 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 at one and a half times, and the next two at double. If a person is attracted to work on weekends, then wage for all hours will be calculated at a double rate. Reading the rules regarding weekend pay and overtime pay, we are absolutely sure that these are different things and that such work must be paid in different ways. However, usually, if employees are involved in an organization to 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-hour, five-day working week, attracted 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 non-working holiday is paid at least twice, and multiplied the hourly wage rate when paid by 2. The State Labor Inspectorate considered 5 hours that were worked outside 8 hours of normal working hours, overtime. Therefore, in her opinion, processing for the first two hours should be paid according to the formula: double pay for the day off is multiplied by one and a half for overtime work, plus for the next three hours, payment is made according to the formula: pay twice (for the day off) is multiplied by 2 (for overtime). The logic seemed strange to the organization, since at first glance it seems that double the amount for working on a day off and so 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 work performed at the initiative of the employer outside:

Normal working hours.
Daily work (shift).
Work in excess of the normal number of working hours for the accounting period.

On the one hand, the logic of the labor inspectorate seems correct. After all, 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 daily work (shift). That is, it must be regarded (see paragraph 2 of the list) as overtime work and paid according to the rules of Article 152 of the Labor Code of the Russian Federation, which states that overtime work is paid for the first two hours of work at least one and a half times, for subsequent hours - at least than double. On the other hand, work on a holiday is always work outside 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 a day off must be paid first at a double rate, multiplied by one and a half, and the subsequent hours - at a double rate, 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 payment for this day under the rules of Article 152.

Because judicial practice there is no application of this article, just as there is no explanation 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 it was 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 days in a row. Well, on my own behalf, I 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 a summarized accounting of working hours?

Document Fragment

Article 104 of the Labor Code of the Russian Federation "Summary accounting of working hours"

In organizations or when performing certain types work, where, due 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 time for the accounting period (month, quarter, etc.) does not exceed normal working hours. The accounting period cannot exceed one year.

The procedure for introducing the summarized accounting of working hours is established by the rules of the internal work schedule organizations.

With the payment of overtime work and work on weekends, with the summarized accounting of working hours, problems often arise. So, let's try on simple examples to understand how the payment is made.

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

When drawing up a work schedule, two norms of the Labor Code should be taken into account. Firstly, the norm according to which work for two shifts in a row is not allowed, and secondly, the norm according to which uninterrupted rest must be at least 42 hours a week.

Sometimes, according to the schedule, the working day of an employee working in shifts falls on a generally recognized weekend 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, he should be paid at double rates (even if the number of hours in the accounting period does not exceed the normal number of hours).

As for the days off, the corresponding norm of the Labor Code of the Russian Federation refers to the days off of specific employees, and not about the 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 should rest according to the schedule, then this work must be paid at double the rate (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 leave on his day off, which is due to him according to the schedule, and if the number of hours in the accounting period does not go beyond the normal, pay such work in single size. This approach is absolutely wrong. And if on a generally recognized day off the work of a "shifter" is paid in a single amount, then on his own - with compensation for such injustice - in a double one.

Let's try to understand the situation described by the author of the letter. If we look at the production calendar, we will 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 hours of holidays. As we can see, the employee, according to the schedule, must work much more than the normal working hours in January. But since the accounting period is a year, in the following months, in theory, such processing should be compensated (that is, the scheduler 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 double the 32 holiday hours, single the remaining hours (156 - 32 = 124 hours). And at the end of the year, we would see 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 a double amount). However, the employee worked instead of 156 hours scheduled, 184 hours, that is, 28 hours more! Of all the hours worked, 48 are holidays. In this case, a number of questions arise: why did it happen that the employee did not work according to the schedule? With such a number of hours, was it possible to comply with the requirements of the law, according to which an uninterrupted weekly rest must be at least 42 hours and work for 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, both 48 hours on holidays and 28 hours on weekends in this case must be paid at a double rate. The remaining hours of work are paid in single. Whether there is processing, which must be paid at an increased rate, you will determine at the end of the year.

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

or overtime;
or work on irregular working hours.

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

Processing under the Labor Code

Overtime hours are 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 duration of daily work (shift) established for the employee, and with the 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. Say, if an employee performs some 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 / B-149). In addition, for such work, the employer is not obliged to provide the employee with additional days of rest (Letter of Rostrud dated 03/18/2008 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 processing in the work schedule.

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

The duration of overtime work should not exceed 4 hours for each employee for 2 consecutive days. There is another restriction: 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 accounting 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 hours for the accounting period must be equal to the norm established for the corresponding category of employees, but not exceed 40 hours per week. And only at the end of the accounting period it will be clear whether any work was overtime for the employee and whether it should be paid additionally.

For example, for an employee, the accounting period is a quarter. The norm of working hours with a 40-hour working week in the first quarter of 2020 is 456 hours. Suppose a person worked 458 hours during this period. So 2 hours should be paid as overtime. We talked about overtime pay with a 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 by the Labor Code, the employer must still pay for such processing in full (Determination of the Constitutional Court of December 19, 2019 N 3363-O).

Overtime work under harmful working conditions

Employees who work with harmful conditions labor, a reduced 36-hour work week was established. Can they work overtime? According to the general rules, it is possible, if following conditions(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 consent of the employee is not required;
overtime work must 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 involve the employee in work outside the duration of his working hours for overtime work.

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

THE CONCEPT OF OVERTIME

Overtime is work performed at the initiative of the employer in excess of the norm of working time established for the employee during the working day (shift) or for 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 employees with reduced working hours, work outside of it is also recognized as overtime.

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

These include:

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

workers who are disabled people of group I or II (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 dated October 25, 1974 No. 298 / P-22 “On approval of the List of industries, workshops, professions and positions with harmful working conditions, work in which gives the right to additional leave and shortened working hours");

women working in the regions of 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 will be considered work that exceeds the reduced working time (daily work, shift) established for them (Article 94 of the Labor Code of the Russian Federation).

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

1) if necessary, perform (finish) the work begun, which, due to an unforeseen delay due to specifications production could not be performed (completed) during the working hours established for the employee, if the failure to perform (non-completion) of this work may entail damage or destruction of the property of 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) in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause the termination of work for a significant number of employees;

3) to continue work in the absence of a replacement employee, 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.

worker, by general rule, have the right to refuse from performing overtime work, of which he 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 consent of the employee to work overtime not required. Such cases include:

1) performance of works 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;

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

The labor legislation establishes restrictions for engaging in overtime work for certain categories employees, as well as its duration.

Can't attract for overtime:

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 underage 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, theater 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 No. 252.

WITH written consent and in the absence of a prohibition work overtime for health reasons in accordance with a medical report, it is allowed to involve in overtime work:

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

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

mothers and fathers raising children under the age of five without a spouse (parts 2 and 3 of article 259 of the Labor Code of the Russian Federation);

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

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

If an employee is delayed on his own initiative, according to the letter of Rostrud dated March 18, 2008 No. 6586-0, such work is not considered overtime.

Moreover, irregular working hours also does not equate to overtime work.

Irregular working hours - a special mode of work that gives the employer the right to occasionally involve the employee in the performance labor functions outside the duration of working hours established for him (Article 101 of the Labor Code of the Russian Federation).

The condition on the regime of an irregular working day must be fixed 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 an irregular working day, the employee agrees to work in such a regime.

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

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

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

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

DURATION AND PAYMENT OF OVERTIME

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

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

For example, for car drivers, with a summarized accounting of working hours, work during a working day (shift) should not exceed 12 hours. The exception is cases when it is necessary to complete the trip or the shifter did not appear (clause 23 of the Regulations on the peculiarities of the mode of working hours and rest time for drivers cars (approved by order of the Ministry of Transport of Russia dated August 20, 2004 No. 15)). However, a 12-hour working day can be set by the driver's schedule, in which case there will be no overtime work.

It is the responsibility of the employer to keep an accurate record of the amount of overtime worked by each employee.

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

By the way, earlier overtime was considered work in excess of the normal working hours. There are a sufficient number of categories of workers who worked on reduced working hours and for whom the concept of overtime did not exist, for example, all medical, teaching staff. They were not entitled to be involved in overtime work and, accordingly, to pay for it. According to the current version 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 workers involved in the established manner for overtime work. Applying the established rules, it should be noted that at present:

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

2) the specific wages for overtime work may be determined in the employment contract or in the collective agreement, but not lower than those established by Art. 152 of the Labor Code of the Russian Federation, which determines the minimum amount of overtime pay. At the same time, overtime work must be paid at an increased rate, regardless of whether the employer has observed the procedure for engaging in overtime work.

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

According to the conclusion of Rostrud (letter dated June 23, 2005 No. 956-6-1), in case of violation by the employer of the procedure for engaging in overtime work (for example, exceeding the maximum allowable number of hours of overtime work per year), this should not affect the realization of the employee's right to wages 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 work of the employee is paid at least one and a half size, and for subsequent hours - not less than double size. 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 position of an employee in comparison with the law are recognized as invalid. They are considered as such in those cases when they are established by agreement of the parties to the employment contract or are provided for by the collective agreement, and in those cases when they are established by local regulations. At the same time, pay regulations, labor agreements and collective agreements may establish, for example, higher overtime pay.

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 time for overtime work - for a duration not less than the number of hours that the employee worked overtime.

The desire of the employee to receive this type of compensation for overtime work must be expressed by him in writing, while the employer does not have the 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 upon 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 the collective agreement, in the individual labor contract or in the local regulatory act of the employer.

Because Art. 99 of the Labor Code of the Russian Federation connects the involvement of an employee in 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 particular type of compensation.

DOCUMENTATION OF INVOLVING AN EMPLOYEE TO OVERTIME WORK

When engaging in overtime work, each such case must be drawn up separately.

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

Initially follows record a fact, which is the basis for attraction to overtime work.

The most common case is the non-attendance of a shift for work that does not allow a break. Absence (or other grounds for engaging in overtime work) should be notified to the head of the enterprise or otherwise executive which is authorized to make decisions on involving employees in overtime work. To do this, the head of the department is memo. It describes the incident and justifies the need to involve workers in overtime work.

A job description or order can secure the right of the immediate supervisor to notify employees of the need for overtime work. In the absence of such authority, a 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 manager), you should obtain consent visa worker.

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 involve him in overtime work. At the same time, employees of privileged categories should be notified in writing of their right to refuse to perform overtime work. This information can be included in the text memo or notifying an employee of the need to work overtime.

If the employee refuses, then it is impossible to involve him in overtime work. Moreover, for this it cannot be applied to him disciplinary action under Art. 192 of the Labor Code of the Russian Federation. The exception is cases where the consent of the employee is not required to involve him in overtime work.

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

O. O. Sherstneva,
legal adviser on civil law issues

Lecture Search

The duration of overtime work should not exceed for each employee 4 hours for two consecutive days and 120 hours per year.

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

By agreement between the employee and the employer, part-time work (shift) or part-time work week can be established both at the time of employment and subsequently. The employer is obliged to establish a part-time working day (shift) or part-time working week at the request of a pregnant woman, one of the parents (guardian, custodian) who has 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 accordance with the procedure established 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 annual basic paid leave, the calculation of seniority and other labor rights.

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

Night time is from 22:00 to 06:00.

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

The duration of work (shift) at night is not reduced for employees who have a reduced working time, 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 equalized with the duration of work in the daytime in cases where it is necessary for working conditions, as well as in shift work with a six-day working week with one day off. List specified works may be determined by a collective agreement, local normative act.

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

The following are not allowed to work at night: pregnant women; employees under the age of eighteen, with the exception of persons involved 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 people, employees with disabled children, as well as employees 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 to them for health reasons in accordance with medical advice. 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 hours - a special mode of work, in accordance with which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. 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 the performance of labor 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 periods are:

Ø breaks during the working day (shifts);

Ø daily (inter-shift) rest;

Ø weekends (weekly uninterrupted rest);

Ø non-working holidays;

vacation Ø.

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

Employees are granted annual leave while maintaining their place of work (position) and average earnings.

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

Annual basic paid leave is granted to employees for a duration of 28 calendar days.

Annual basic paid leave lasting 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. Procedure for granting annual paid holidays

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 from this employer. By agreement of the parties, an employee may be granted 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 maternity leave or immediately after it;

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 order of granting annual paid leaves established by the employer.

Pay and regulation of labor.

Labor Code of the Russian Federation, Article 129.

Basic concepts and definitions

Salary (employee's remuneration) - 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(surcharges and allowances of a compensatory nature, including for work in conditions that deviate from normal, work in special climatic conditions and in territories exposed to radioactive contamination, and other payments of a compensatory nature) and incentive payments (additional payments and allowances of a stimulating nature, bonuses and other incentive payments).

The tariff rate is a fixed amount of remuneration of an employee for fulfilling a labor norm of a certain complexity (qualification) per unit of time without taking into account compensatory, 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 compensatory, incentive and social payments.

Base salary (base official salary), basic wage rate - minimum salary (official salary), wage rate of a state or municipal institution carrying out professional activity by profession of a worker or position of an employee, included in the relevant professional skill group, excluding compensatory, incentive and social payments.

Labor Code of the Russian Federation, Article 131.

What is the maximum overtime for an employee?

Forms of remuneration

Wages are paid in cash in the currency of the Russian Federation (in rubles).

In accordance with a collective agreement or an employment contract, upon a written application of an employee, remuneration may also 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-monetary form may not exceed 20 percent of the accrued monthly wage.

Payment of wages in bonds, coupons, in the form of debt obligations, 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 prohibitions or restrictions on their free circulation are established , not allowed.

Overtime work and its limitations

Overtime is considered to be work performed by an employee in excess of the length of working time established for him, provided for by the internal labor regulations. At the same time, 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 various grounds application of overtime work: consent of the employee; the prescription of the law; condition collective agreement, agreements.

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

Overtime work is not allowed: pregnant women; workers under 18; workers studying on the job in general education educational institutions; exempted from overtime work in accordance with the medical report.

Overtime work must not exceed 4 hours for each employee for two consecutive days and 120 hours per year. This number does not include work performed by virtue of the prescription of the law. The main compensation for working overtime is additional pay.

Rules for calculating overtime hours in case of summarized accounting of working hours

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

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

66. Time relax – the time established by law, during which the employee is free from the performance of his labor duties and has the right to use it at his own discretion. There are two ways to regulate the length of rest time: indirect and direct. The indirect way is to legally limit the length of working hours, the direct way is to legislative consolidation specific types of rest. Types of rest time: 1 Break during the working day (break for rest and meals - at least 20 minutes, no more than 4 hours). 2 Interday (everyday) breaks are breaks in work between the end of one working day and the beginning of the next. There must be at least twice the duration of work. 3 Weekly rest days are days off. (may be used to compensate for shortfalls up to a weekly allowance) Compensation for work on a day off may 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 norm of working time.

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

First of all, decide on the time - to clarify the number of hours worked in excess of the norm.

How many hours should overtime work be?

Time accounting can be summarized: in this case, overtime processing is paid for hours in excess of the norm for the accounting period. In this case, according to the generally accepted practice, only two hours will be paid at the rate of one and a half; 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 the activity, it is impossible to observe the normal working hours (Art.

104 of the Labor Code of the Russian Federation). However, summarized accounting does not cancel shift schedules. And here the question arises: should hours worked overtime be considered overtime on this particular day? In the opinion of a number of employees, despite the fact that summary accounting has been introduced, the established shift schedule also normalizes the employee's working hours, and it is precisely the daily norm. And thus, it is the “daytime” processing that should be used. But this is not true! Article 99 of the Labor Code of the Russian Federation directly indicates that, with a 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 for processing: you should not try to cheat and, for the purpose of lower payment, calculate the daily processing (if any) for any day in order to determine how many hours to pay in one and a half size, and how many in double. This is a violation of labor laws.

If no totalized time tracking is set, overtime will be considered any duration in excess of the normal duration of the shift. Accounting should be kept accurately (Article 99 of the Labor Code of the Russian Federation) - but again, it is not disclosed how accurately. Strictly speaking, it will not be a mistake to take into account the minutes of processing (i.e., an employee who has worked 45 minutes will have not a rounded hour in the timesheet as processing, but only the exact 0.75 hours).

After you have decided on the number of hours, it is time to calculate the "hourly" cost. If you have an hourly rate, then you use it as a basis: one and a half 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 defined. Average daily earnings divided by the number of daily hours worked? A specific daily rate (daily part of the 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 wages. But how correct would it be to apply such a form for overtime?

There is a letter from the Ministry of Health of the Russian Federation No. 16-4 / 2059436 of 07/02/2014, 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 compensatory and incentive payments. True, we should not forget that it means that the “northern”, “regional” and “harmful” surcharges are already taken into account in the tariff or rate. Otherwise, they must be credited for “processing”.

IMPORTANT! This letter is not a normative act.

Further in the letter, the Ministry of Health indicates that in order to calculate the hourly tariff rate it is most reasonable to divide the salary by the average monthly number of hours (the annual norm of working hours 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 various allowances and additional payments for "overtime" - we consider the position of the Ministry of Health ("to include in one and a half and double payment all allowances and additional payments established in the organization or part of them") is not entirely correct. Surcharges and allowances should be applied to the payment of all working time, and 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 wage, the methodology given in Article 139 of the Labor Code of the Russian Federation (average wage) is used. 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, the calculation of payment in proportion to the hours worked overtime (i.e. 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 compensation, and not a “net” salary (rate, tariff).

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

Remember only that you should not worsen the situation of workers in comparison with the norms already in force.

Region on the islands

Article 99. Overtime work

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

(see text in previous

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 summarized accounting of working time - in excess of the normal number of working hours for the accounting period.

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

1) if necessary, perform (finish) the work that has been started, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if failure to perform (non-completion) of this work may lead to 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) in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause the termination of work for a significant number of employees;

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

Recycling rate per year according to the Labor Code of the Russian Federation

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

Engaging an employer of an employee to work overtime without his consent is allowed in the following cases:

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

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

(as amended by Federal Law 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 situations, 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, workers under the age of eighteen, other categories of workers in overtime work in accordance with this Code and other federal laws. Involvement in overtime work of disabled people, women with children under the age of three years is allowed only with their written consent and provided that this is not prohibited by them for health reasons 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. At the same time, disabled people, women with children under the age of three, must be familiarized with their right to refuse overtime work against signature.

The duration of overtime work should not exceed for each employee 4 hours for two consecutive days and 120 hours per year.

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

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

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