Duration 7 calendar days. Five questions about vacation. In the work experience are included

Each employee has the right to receive annual paid leave, and certain categories of workers also to additional paid leave. The procedure for granting holidays is regulated by the Labor Code of the Russian Federation, which means that it must be strictly observed. Consider how to send an employee on annual leave correctly.

STEP 1: SEND A NOTIFICATION OF THE BEGINNING OF A VACATION OR RECEIVE A STATEMENT BY THE EMPLOYEE

Until now, many HR personnel doubt whether the employee needs to write a vacation application. Let's figure it out.

As you know, the priority of vacation is determined by the vacation schedule (part one of article 123 of the Labor Code of the Russian Federation). The employer approves the schedule no later than two weeks before the start of the year for which it is drawn up. The schedule is approved taking into account the opinion of the trade union (if any) (part one of article 123 of the Labor Code of the Russian Federation). After the vacation schedule is approved, it becomes mandatory for the employee and the employer (part two of article 123 of the Labor Code of the Russian Federation).

This rule does not apply to those categories of workers for which the employer is obliged to provide annual leave at a time convenient for them. These include:

husbands while their wives are on maternity leave (part four of Article 123 of the Labor Code of the Russian Federation);
war veterans (Federal Law of 12.01.1995 No. 5-FZ “On Veterans”, as amended on 12.19.2016);
“Chernobyl victims” (Clause 5, Article 14 of the Law of the Russian Federation of 05.15.1991 No. 1244-1 “On the social protection of citizens exposed to radiation as a result of the Chernobyl disaster”, as amended on 12.28.2016);
employees whose spouses are military personnel (Clause 11, Article 11 of the Federal Law of May 27, 1998 No. 76-FZ “On the Status of Military Men”, as amended on April 3, 2017);
external part-time workers who are granted leave at the same time as leave from their main job (part 1 of article 286 of the Labor Code of the Russian Federation);
Heroes of the Soviet Union, Heroes of the Russian Federation, full holders of the Order of Glory (Clause 3, Article 8 of the Law of the Russian Federation of 01.15.1993 No. 4301-1 “On the Status of Heroes of the Soviet Union, Heroes of the Russian Federation and Full Knights of the Order of Glory” as amended on 02.07 .2013, as amended on 12.19.2016).

Vacation notice

There is no approved form of notification of the start time of the vacation, therefore the employer should develop it independently. However, please note that the following information should be in the document:

name of company;
outgoing number and date of registration of the document;
position, surname and initials of the employee;
name of the structural unit;
deadlines for annual leave granted;
employer signature.

Note! A notice of the start time of the vacation (Example 1) must be received by the employee against signature no later than two weeks before the start of the vacation (part one of Article 123 of the Labor Code of the Russian Federation).

According to the approved vacation schedule, Secretary Ilyina NB should go on vacation from 06/17/2017 to 06/30/2017. To familiarize yourself with the notice of the start time of the vacation in this case, Ilyina NB due no later than 06/02/2017.

If several employees go on vacation, you can notify them with one document (Example 2). Please note that two weeks before the holidays is the minimum period, you can notify earlier.

According to the schedule, employees go on vacation on various days of July - from July 1, 2017 to July 31. 2017. This means that all employees on vacation in July can be notified on June 12. For those who go on vacation 07/01/2017, the warning period will be minimal, for all others - more than the minimum.

Vacation Application

The application form for granting leave is also not provided by law, therefore, upon receipt of the employee’s application, it is necessary to check whether all the necessary details are present in the document, namely:

name of the employing organization;
position, surname and initials of the head;
position of the employee and the name of the structural unit;
surname and initials of the employee.

In the text of the application, the employee indicates which vacation he asks for (main or additional), the date the vacation began and the number of vacation days.

The employee personally signs the application and puts the date. Next, the head puts on the application visa approval.

To simplify the process and reduce the number of errors, the organization can develop an application form - employees will only have to fill it out. However, the employee’s handwritten signature must also be on the completed application form (Example 5).

An application for annual leave must be submitted in advance. This will allow the manager to find a replacement for the employee during the vacation, and the accounting department to calculate the vacation pay, which should be paid no later than three days before the start of the vacation (part nine of article 136 of the Labor Code of the Russian Federation).

If the employer violates this requirement of the law, he pays the employee monetary compensation (Article 236 of the Labor Code of the Russian Federation). In order to avoid disputes, it is better to fix the deadlines for the submission of such applications in a local regulatory act, for example, in the Internal Labor Regulations:

We recommend registering notices of the start of vacation and applications for its granting in a special journal (Example 6). This will avoid disputes about the date of submission of the application.

STEP 2. WE CHECK WHICH VACATION IS POSITIVE TO THE EMPLOYEE

As a general rule, employees are granted annual paid leave of 28 calendar days (Article 115 of the Labor Code of the Russian Federation).

So, eligible for additional paid leave:

workers whose working conditions are harmful and dangerous - at least 7 calendar days (Article 117 of the Labor Code of the Russian Federation);
workers with irregular working hours - at least 3 calendar days per year (Article 119 of the Labor Code of the Russian Federation);
persons working in the Far North and equivalent areas - from 8 to 24 calendar days (Article 321 of the Labor Code of the Russian Federation, Article 14 of the Law of the Russian Federation of February 19, 1993 No. 4520-1 “On state guarantees and compensations for persons working and living in areas of the Far North and equivalent areas ", as amended on 12/31/2014);
general practitioners and their nurses for continuous work in these positions for more than three years - 3 days (Decree of the Government of the Russian Federation of December 30, 1998 No. 1588 “On the establishment of annual general practitioners (family doctors) and general medical nurses (family doctors) additional paid 3-day leave for continuous work in these positions ");

The following are entitled to annual extended paid holidays:

employees with an assigned disability group - 30 calendar days (Article 23 of the Federal Law of November 24, 1995 No. 181-ФЗ On Social Protection of Persons with Disabilities in the Russian Federation, as amended on March 7, 2017);
employees of educational institutions - with a duration of 56 or 42 calendar days, depending on the type of institution and position (Decree of the Government of the Russian Federation dated May 14, 2015 No. 466 “On annual basic extended paid holidays”, as amended on April 7, 2017);
full-time scientific workers of universities: doctors of sciences - 48 working days, candidates of sciences - 36 working days (Decree of the Government of the Russian Federation of 12.08.1994 No. 949 "On annual leave of scientists with a scientific degree");
workers engaged in work with chemical weapons — 56 or 49 calendar days (Article 5 of the Federal Law of 07.11.2000 No. 136-FZ “On the Social Protection of Citizens Employed in Work with Chemical Weapons”, as amended on October 14, 2014 );
workers of healthcare organizations diagnosing and treating HIV-infected patients - 36 working days (Decree of the Government of the Russian Federation of 04.03.1996 No. 391 “On the procedure for providing benefits to workers at risk of contracting the human immunodeficiency virus in the performance of their duties”).

employees under the age of 18 (part 3 of article 122, article 267 of the Labor Code of the Russian Federation);
employees who have adopted a child (or children) under the age of three months (part 3 of article 122 of the Labor Code of the Russian Federation);
women before maternity leave or immediately after it (part 3 of article 122 of the Labor Code of the Russian Federation).

STEP 3: CALCULATING VACATION ON VACATION

After the personnel officer has decided on the duration of the main and additional leave, it is necessary to calculate how many days of leave the employee earned.

To do this, you should calculate the experience that gives the right to vacation. After all, if an employee has not yet earned leave, then providing the leave in advance, the employer risks it. Upon dismissal, an employee is not always paid a salary sufficient to withhold payment of vacation days used in advance.

The length of service, which gives the right to receive the annual next paid leave, shall be calculated from the first day of work with the employer. The working year is calculated from the day the employee is hired and ends after the working year. The working year does not coincide with the calendar, therefore, each employee has his own period of the working year.

Arinin M.A. accepted into the organization on May 16, 2016. The first working year of the employee begins May 16, 2016 and ends after 12 months of continuous work, that is, it lasts until May 15, 2017. The second working year - from 05/16/2017 to 05/16/2018, etc.

Please note that not all periods when an employee was registered with the organization can be included in the length of service, which gives the right to grant annual regular paid leave (article 121 of the Labor Code of the Russian Federation).

The work experience includes:

working hours in the organization;
the time when the employee did not work, but he retained his place of work (the time of annual paid leave, non-working holidays, days of temporary disability, days off and other days of rest);
time of forced absenteeism in case of illegal dismissal or suspension from work and subsequent reinstatement;
the period of removal from work of an employee who has not undergone a mandatory medical examination through no fault of his own;
vacation time without pay, not exceeding 14 calendar days during the working year.

The following are not included in the experience for an annual vacation:

time of absence from work without good reason;
parental leave time;
vacation time without pay, in excess of 14 calendar days during the working year.

Calculation of seniority for annual leave, if an employee in the working year used less than 14 calendar days of leave without pay.

Here is an example of calculating seniority on vacation.

Arinin M.A. adopted on 05.16.2016. The employee applied for annual leave from 06/05/2017 for 14 calendar days. At the same time, from 11/14/2016 to 11/20/2016 the employee was provided with annual paid leave in the amount of 7 calendar days, and on 12/30/2016 he used 1 day of vacation without pay. Also Arinin M.A. was on sick leave from 02/20/2017 to 02/24/2017.

● For the working year from 05.16.2016 to 05.15.2017 Arinin M.A. as a general rule, 28 calendar days of vacation are allowed. Since the time of annual leave and temporary disability is included in the length of service for the provision of annual leave, we take into account these periods in the length of service.

● Marinin M.A. also in the working year used 1 day of vacation without pay. However, since the total number of days does not exceed 14 calendar days, this day is also included in the experience.

● From the total number of days relying on a working period, subtract the days of holidays already used. Thus, M. Arinin for the period from 05/16/2016 to 05/15/2017 it is supposed:

28 cd annual vacation - 7 c.d. used vacation \u003d 21 cd

The employee has accumulated the required number of vacation days, and vacation in the amount of 14 calendar days can be granted to him.

Calculation of seniority for annual leave, if the employee in the working year used more than 14 calendar days of leave without pay.

If an employee used vacation without pay for a period of more than 14 calendar days, this period is also not included in the calculation of length of service in accordance with Art. 121 of the Labor Code of the Russian Federation (see also letters from Rostrud dated 14.06.2012 No. 854-6-1; dated 18.12.2012 No. 1519-6-1).

The employee was accepted on September 11, 2015. From December 5, 2016 to December 30, 2016, the employee was given 26 days of vacation without pay.

During the period of service, which gives the right to grant annual leave, only the period of leave without salary in the amount of 14 calendar days is included. The remaining days are not included in the vacation period and “shift” the border of the working year by 12 calendar days (26 - 14 \u003d 12) Thus, the last day of the current working year will not be on September 11, 2017, but on September 23, 2017 (September 11, 2017 + 12 days).

Calculation of length of service for additional leave for “harmful” work.

An additional vacation is planned (as well as annual) in the vacation schedule. However, the work experience, which gives the right to annual additional paid leave for work with harmful or dangerous working conditions, includes only the time actually worked under these conditions (part three of Article 121 of the Labor Code of the Russian Federation).

According to clauses 8 and 9 of the Instruction on the procedure for applying the List of production of workshops, professions and positions with harmful working conditions, work in which gives the right to additional leave and a shorter working day (approved by the Decree of the USSR State Committee for Labor, the All-Union Central Council of Trade Unions of November 21, 1975 No. 273 / P- 20, as amended on January 26, 2017), full additional leave is granted if the employee actually worked in the production year, workshops, professions and positions with harmful working conditions for at least 11 months. If an employee in a working year has worked in harmful conditions for less than 11 months, then additional leave is granted to him in proportion to the time worked.

To calculate the length of service giving the right to a specified vacation, it is necessary to calculate the number of days that the employee actually worked in harmful working conditions (at least half the length of the working day). Next, determine the number of full months of work in harmful or hazardous working conditions. To calculate the number of full months of work in hazardous working conditions, the total number of days of such work during the year must be divided by the average monthly number of working days. If the balance is less than half the average monthly number of working days, it is excluded from the calculation, if half or more, it is rounded off to the full month (Rostrud letter dated 18.03.2008 No. 657-6-0).

The employee was hired as a gas cutter 07/27/2016. The employee applied for annual leave from 06/12/2017 for 14 calendar days and annual additional leave from 06/26/2017 for 12 calendar days (according to the collective agreement). From November 21, 2016 to November 27, 2016, the employee was granted annual paid leave in the amount of 7 calendar days.

For a working year from 07/27/2016 to 07/26/2017, an employee is generally entitled to 28 calendar days of vacation, as well as 12 days of additional vacation. We calculate the number of days of vacation for work in hazardous working conditions.

At the time of the proposed start of an additional vacation, the employee will work in harmful conditions from 07/27/2016 to 06/26/2017, which is 11 months. Since the employee worked for at least 11 months, the employee is granted a full additional vacation in the amount of 12 calendar days.

From the total number of days due to the employee for a given period, you need to subtract the period of vacation already used.

Thus, an employee for the period from 07/27/2016 to 07/26/2017 is supposed to:

28 cd annual leave + 12 cd additional vacation - 7 c.d. used vacation \u003d 33 cd

The employee was accepted to the post of driver on 10.24.2016. He applied for annual leave from 06/19/2017 for 14 calendar days and annual additional leave from 07/03/2017 for 8 calendar days (according to the collective agreement). The employee has not yet used his vacation.

At the time of the proposed start of an additional vacation, the employee will work in harmful conditions from 10.24.2016 to 02.07.2017, which is 8 months. Since the employee worked for less than 11 months, it is necessary to calculate the number of days of additional leave. To do this, you need to determine the number of days on which the employee actually worked in harmful working conditions for at least half the length of the working day.

For example, an employee worked full time. Then for the calculation we apply the formula:

124 days of work in adverse conditions / 29.4 (average monthly number of working days) \u003d 4.22 cd

Thus, on 07/03/2017, an employee is entitled to 4 calendar days of additional leave.

For the working year from October 24, 2016 to October 23, 2017, the employee is entitled to 21 calendar days of the main annual leave (9 hours worked × 2.33 days). Also, the employee is entitled to 4 calendar days of additional leave.

The employee has accumulated the required number of days of the main annual vacation. The employer also provides the employee with additional leave in the amount of 4 calendar days.

STEP 4: WE ORDER THE GRANT OF VACATION

If there are no obstacles for an employee to take a vacation, an order can be issued. Most often it is compiled in a unified form No. T-6 (Examples 7, 8) (approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 11), but the employer has the right to develop its own form. The worker gets acquainted with the order for signature.

STEP 5: MAKE A NOTE-CALCULATION

To calculate other payments due to the employee when providing him with annual paid or other leave, you need to issue a note-calculation (Example 9). It is compiled in a unified form No. T-60 or in a form approved by the organization.

Note-calculation must be transferred to the accounting department to calculate vacation pay and pay them to the employee.

STEP 6: ENTERING THE EMPLOYEE'S PERSONAL CARD

After placing the order, the personnel department needs to enter the vacation data into the employee’s personal card (form No. T-2 or in the form of organization) (Example 10).

STEP 7: WE ACCOUNT THE VACATION DAYS IN THE TABLE OF ACCOUNTING OF WORKING HOURS

The employer maintains a time sheet in the form No. T-13 or in the form approved by the organization. In the timesheet, the days of annual paid leave are mandatory. The days when the employee is on vacation must be indicated by OT or 09 (Example 11).

STEP 8: MAKE INFORMATION SCHEDULE

The organization must approve the vacation schedule no later than two weeks before the start of the new calendar year. When making a vacation schedule, you can use the unified form No. T-7, but the employer has the right to develop his own form.

As employees use the holidays, the schedule includes information on the actual use of the holidays.

Sometimes the schedule is amended. For example, if an employee requests to postpone his annual paid leave to another time (and the employer agrees), extend the employee's leave (for example, due to incapacity for work during the holiday), or withdraw the employee from the leave.

After applying, you need to make changes to the vacation schedule. Sometimes changes to the schedule are made by order, but the Labor Code of the Russian Federation does not provide for such a duty. In our opinion, in this case it is enough to refer to the employee’s statement in column 8 (Example 12).

SUMMARY

1. When issuing a vacation to an employee on a schedule, it is necessary to send the latter a notice of the start of the vacation in two weeks
before it starts.

2. If an employee wishes to go on vacation outside the schedule, he must apply
to the employer with a statement. The employer has the right to agree to the provision of leave outside the schedule or to refuse the employee.

4. By agreement of the employee and the employer, the vacation can be postponed according to the schedule.

5. When calculating seniority for vacation, it is necessary to take into account periods that are not included in the seniority, which gives the right to provide an annual regular paid
vacation time.

6. Following the procedure, the personnel department must issue an order for the provision of the main annual paid leave, draw up a note-calculation, make notes in the employee’s personal card, reflect the leave in the time sheet and enter the information in the schedule
vacations.

Vacation is one of the types of rest time provided for by labor law. The right to rest for every person is guaranteed by the Constitution of the Russian Federation. However, a rare organization will allow its employee to rest all 28 days at once. Therefore, workers often divide vacation into parts of less than 7 calendar days. This leads to the fact that the employee can not use the vacation for a good rest and recovery. In addition, when granting leave for a period of 1 to 5 days, the concepts of “calendar day” and “working day” are replaced.

Of course, the employee has the right to take leave at least one day for 28 consecutive weeks, but such a “rest” will not produce any result. According to the author, the employer should try to convince the employee that the latter should take at least 7 calendar days. The author’s argument is based on the concept of a calendar day in which annual leave is granted.

Remember about the calendar days

Article 125 of the Labor Code of the Russian Federation says that annual paid leave can be divided into parts by agreement between the employee and the employer. Moreover, at least one part of this vacation must be at least 14 calendar days. In addition, articles 115 and 120 of the Labor Code of the Russian Federation indicate that leave is granted to an employee in calendar days.

The biggest mistake of the employer is the calculation of calendar days by continuous calculation according to the calendar, since the everyday concept of a calendar day does not coincide with the concept of a calendar day in labor legislation. According to Article 14 of the Labor Code of the Russian Federation: "Non-working days are included in the time period calculated in calendar weeks or days."

In addition, the employee during labor activity is set a certain mode of working time. The concept of working time is disclosed in article 91 of the Labor Code of the Russian Federation: “Working time is the time during which the employee, in accordance with the organization’s internal labor regulations and the terms of the labor contract, must perform labor duties ...”. The working hours can be different - a five-day week with two days off, a six-day week with one days off and a working week with days off according to a rolling schedule. That is, workdays and weekends should alternate.

An indirect argument in this matter may be the decree of the Government of the Russian Federation of April 11, 2003 No. 213 “On the specifics of the procedure for calculating average wages”, which sets out the procedure for converting working days into calendar days for some of the most popular working hours. In particular, Article 9 states: “The number of calendar days ... is calculated by multiplying the working days according to the calendar of the 5-day working week per working hours by a factor of 1.4.” This means that the cost of the working day is not equal to the value of the calendar.

Harm to health

The provision of part of the leave to an employee for less than 7 calendar days is impractical from the point of view of the employee's rest regimes and compliance with labor protection legislation. This is what the International Labor Organization says about holidays.

Document fragment

(...) The Conference, having adopted the Convention providing workers with annual paid leave, taking into account that the purpose of such leave is to provide workers with opportunities for relaxation, entertainment and development of their abilities, given that the conditions laid down in the Convention are the minimum norm that any the paid vacation system, considering that it is desirable to clarify the methods of applying this system, recommends that each member of the Organization take into account the following proposals: (...)

2. Although in special cases it may seem desirable to provide for the breakdown of vacations into parts, it should be avoided that such special measures run counter to the purpose of leave, which is intended so that the worker can restore his physical and mental strength spent during the year. In other cases, with the exception of completely extraordinary circumstances, the breakdown of leave should be limited to its distribution into no more than two parts, one of which cannot be less than the established minimum.

Billing Issues

The Labor Code of the Russian Federation does not prohibit sharing vacation by less than 7 days. However, for the correct calculation of arrears on the next vacation and vacation, it is necessary to translate the employee's working days into calendar days when the next vacation is provided in small parts.

When granting leave to an employee in the amount of 28 calendar days, 20 working days and 8 days off fall for a given period at a time (for a five-day working week). In the event that you will provide vacation for 1 or 2 days, you will actually extend the vacation period. This is due to the fact that the 14 business days provided in this case are artificially increased by the corresponding number of days off - the vacation period will increase to at least 32 days.

Picture 1

Getting ready for vacation

In order to provide an employee with leave regardless of their duration - 28 calendar days or any smaller amount - the following documents must be drawn up in the organization (if the employee goes on vacation not on schedule, but on request):

Employee statement.

Order on vacation (unified form T-6).

Note-calculation for the calculation of vacation pay (drawn up by the accounting department).

Mark in the personal card T-2 (section 8).

Mark in the timesheet (unified form T-12 or T-13).

Mark in the vacation schedule (unified form T-7 in the column "actual date" and, if necessary, in the column "transfer of holidays" - the basis and date).

Table 1

What procedures take place with “vacation” documents and what officials in the organization participate in them

№ n \\ n	Document	Paperwork (giving it legal force)	The official in the organization responsible for following this procedure.
1	Statement	Spelling	Employee
2		registration
3		Matching	Head of Unit
4		Approval (resolution)
5	Vacation Order	Transfer of the employee's application to the personnel service	The employee or secretary himself
6		Development of the draft order	HR Officer
7		Order registration	Secretary (or other responsible person)
8		Signing an order	Head of organization or other authorized person
9		Acquaintance with the order	Employee
10	Note calculation for vacation pay	Transfer of a copy of the order to the accounting department of the organization and / or execution of the first part of the note-calculation	HR Officer
11		Calculation and development	Accountant
12		Issue of vacation pay (no later than three days before the start of the vacation). If the money is transferred to the employee on a card, the employee should be able to use the money no later than three days before the start of the vacation	Accountant
13		Getting vacation pay	Employee
14	Personal card T-2	Vacation Mark	HR Officer
15	Time sheet	Vacation Mark	Responsible officer
16	Vacation schedule	A note on the actual date of vacation and, if necessary, on the transfer of vacation	HR Officer

In order to better understand what temporary and material resources of the organization are spent on carrying out the whole procedure, it is recommended to calculate how much time these actions will take for each official, and taking into account their official salaries, calculate in monetary terms the amount that the organization spends to so that one employee goes on vacation for 1-2 days, as is common in many commercial companies. Moreover, if the employee went on vacation once a year, these time and material costs for making this vacation would also be once. But when the organization breaks the vacation into two or more parts, then these costs, respectively, double or increase several times.

In practice, the organization, seeking to minimize its costs, solves the issue much easier. The employer shortens the procedure itself, not realizing the possible consequences.

table 2

What documents and procedures does the employer “sacrifice” when issuing “small” parts of vacation

Procedure and documents	Effects
Do not give vacation pay	Excluded from the procedure for the provision of leave accounting. This leads to the fact that the organization violates the requirements of Article 136 of the Labor Code of the Russian Federation, falling under the scope of Article 142 of the Labor Code of the Russian Federation “Responsibility of the employer for violation of the terms for payment of wages and other amounts due to the employee” and must pay the employee interest according to Article 236 of the Labor Code of the Russian Federation
Do not enter current information in the vacation schedule	This entails the misuse of a document such as a vacation schedule, and during a labor inspection may result in liability for the particular official whose duties it includes
Do not make notes in your personal T-2 card	It leads to the misuse of such a document as a T-2 personal card, and when inspected, the Federal Labor Inspectorate may punish the responsible official. This violation often leads to incorrect calculation of compensation for unused vacation upon dismissal.
Often on the leave order there is no employee’s signature attesting that he is familiar with the order	Until the employee signs the leave order, the leave cannot formally begin with him. Signing a worker’s application does not give legal effect to the vacation procedure. Formally, if an employee went on vacation without reading the order, this can be interpreted as truancy
Vacation applications are not recorded	Violation of the principles of giving documents legal force and organization of workflow in a company
There is no resolution on the vacation application	Again violation of the principles of giving documents legal force. In addition, if, on the basis of such a statement (without a resolution), the personnel department issues an order, then there is a violation of the principles of working with documents, since in this case the personnel department formally fulfills the request of the employee without an appropriate order from the employer. A logical question arises: for whom does the human resources department work?
There are no marks in the time sheet (as a rule, in those organizations where the time sheet is simply not kept)	Violation of the requirements of Article 91 of the Labor Code of the Russian Federation. For this, the labor inspector can punish the official responsible for organizing the “accounting of the time actually worked by each employee”

All these violations during inspections can lead to administrative penalties for specific officials provided for in the Code of Administrative Offenses.

In addition to the liability stipulated by the Labor Code of the Russian Federation for violations of labor and labor protection legislation, the legislation also establishes another responsibility stipulated by the Code of the Russian Federation on Administrative Offenses and the Criminal Code of the Russian Federation.

So, when deciding on the provision of leave in installments to the employer, we recommend that you consider the following:

1. Vacation can be divided into parts only if the employer agrees to such a separation. When deciding on the provision of leave, the employer must take into account that he is obliged to pay the employee leave not later than three days before the start of this part of the leave (article 136 of the Labor Code of the Russian Federation). And in case of non-payment to the employee of vacation pay 3 days before the start of the vacation, the employer is obliged to compensate the employee for this delay for each day in accordance with the requirements of this article. That is, at a rate of at least one three-hundredth of the Central Bank of the Russian Federation refinancing rate effective at that time from unpaid amounts on time for each day of delay, starting from the next day after the due date for payment up to and including the day of actual settlement. The amount of this compensation may be increased by collective or labor contracts. The obligation to pay the specified monetary compensation arises regardless of the fault of the employer.

March 19, 2007 Sidorova L.D. appealed to the head with a request for annual paid leave for 3 days from March 20 to 22. Dates of payment of wages - 15 and the last day of the current month.

When considering the example, we will proceed from the frequently encountered practice of paying vacation pay on the day payroll is issued.

According to the Labor Code of the Russian Federation, the employer is obliged to pay vacation pay no later than three days before the start of the vacation, therefore, according to our example, no later than the evening of March 16, Sidorova L.D. should be able to manage their money. But in reality, the employee will receive vacation pay only on the 30th (i.e., on the day the salary is paid).

So, in accordance with article 236 of the Labor Code of the Russian Federation, the employer must pay Sidorova L.D. compensation for the delay in vacation pay from March 17 to March 30.

Count:

Compensation \u003d Holidays × 1/300 × Refinancing rate × 14 (delay period)

2. An employer, in accordance with Article 212 of the Labor Code of the Russian Federation, is obliged to ensure the work and rest of workers in accordance with the legislation of the Russian Federation and the legislation of the constituent entities of the Russian Federation.

3. For violation of the requirements for vacation pay and labor protection requirements, both administrative and criminal liability are provided (Articles 5.27, 3.11, 3.12 of the Administrative Code, Articles 143 and 145 of the Criminal Code of the Russian Federation).

1 Convention No. 52 of the International Labor Organization “Concerning Annual Paid Leave” (adopted in Geneva on June 24, 1936 at the 20th session of the ILO General Conference). In this Convention, Russia is a contracting party.

Summer is a season of universal zeal for the sea and the sun. At the same time, the accountant begins a hot time in the workplace. The reason is controversial issues, which arise almost more than employees seeking rest. Consider the most important ones.

Answers questions gives Victoria Bespalova, Leading Consultant, Head of Labor Law, NS Consulting.

1. What is the minimum number of vacation days an employee can take? If an employee leaves on Monday after vacation, does he have the right not to include the previous weekend in the vacation period?

The purpose of annual paid leave is to restore the physical and moral strength of the employee and, in general, it should be at least 28 calendar days per year of work. It is possible to split the leave into parts, provided that at least one of them is at least 14 calendar days (Article 125 of the Customs Code). It is not known how many parts the remaining 14 days can be divided into - there are no corresponding instructions from the legislation.

Article 128 of the Labor Code states: "for family reasons and other good reasons, an employee may be granted leave without pay, upon written request, the duration of which is determined by agreement." Moreover, the Code does not stipulate that such leave should be taken into account in calendar days. Thus, the situation of obtaining leave without pay during the days from Monday to Friday is quite acceptable, which cannot be said about the next annual paid vacation. Articles 115 and 120 of the Labor Code clearly establish the procedure for granting the next annual paid vacation in calendar days.

When dividing the vacation into small parts, the employer directly violates the requirements of these articles by providing vacation not on calendar days, but on working days.

It is worth remembering that the concept of "calendar days" is not tied to the days when the employee works and when he rests in fact. Working days clearly relate to the days when the employee was supposed to work (Article 14 of the Labor Code).

As for the size of accrued vacation pay, if the last two days off are not included in the vacation period, then, of course, based on the foregoing, the amount of vacation pay will be reduced by two calendar days.

The answer to this question depends on whether the employee has already been accrued increased salary for the period of the last 12 calendar months preceding the calculation of vacation pay, or not. If yes, then according to clause 16 of Decree No. 922, when calculating average earnings, a calculation factor should be applied to calculate vacation pay. It is determined simply: the new salary must be divided by the value of the salary before increasing. Recalculate the salary from the beginning of the billing period to the month of increase.

Let’s take a concrete example: the employee goes on vacation from July 21, 2010. The calculation period for calculating average earnings - from July 1, 2009 to June 30, 2010 - has been fully worked out. Until May 31, 2010, the employee's salary was 20,000 rubles, and from June 1, 25,000 rubles. The coefficient is taken 1.25 (25,000 rubles: 20,000 rubles). In the amount of payments to calculate the average salary for each month from July 2009 to May 2010, instead of the actually paid amount (20,000 rubles), you need to take the estimated, that is, 25,000 rubles. (20,000 rubles. X 1.25). Thus, the total amount for determining the average earnings will be 300,000 rubles. (20,000 rubles. X 11 months. X 1.25 + 25,000 rubles. X 1 months.).

When an employee is granted leave with subsequent dismissal, the day of dismissal shall be considered the last day of leave.

When the billing period is not fully worked out, the number of calendar days in incomplete months and fully worked out is separately determined. The total amount of payments is divided by the sum of the found values. To find the number of calendar days in an incomplete month, it is necessary to divide 29.4 (the average monthly number of calendar days in accordance with Article 139 of the Labor Code of the Russian Federation) by the number of calendar days of that month and multiply by the number of calendar days, worked out this month.

Suppose, from May 17 to May 23, 2010 (7 calendar days) the employee was ill. In May, he was paid a salary of 9,000 rubles. and paid disability certificate in the amount of 2000 rubles. The salary of an employee is 12,000 rubles. The employee is granted leave in the amount of 28 calendar days.

The number of calendar days in May will be 22.76 days (29.4: 31 days x 24 days). The amount of actually accrued wages for the billing period from March 2009 to April 2010 will amount to 141,000 rubles. (12 000 rub. X 11 months + 9000 rub.). Thus, the average daily earnings of an employee will be equal to 407.33 rubles. (141,000 rubles: (29.4 x 11 + 22.76), which means that the amount of vacation pay will amount to 11,405.24 rubles (407.33 rubles x 28 days).

4. What period should be taken for calculating vacation pay if an employee goes on vacation in the middle of the month?

In accordance with article 139 of the Labor Code and paragraph 4 of Decree No. 922, the period for calculating vacation pay depends on the actual accrued wages.

We give an example. The terms for the payment of wages in accordance with the labor contract and the internal labor regulations are as follows: the first half of the wage is paid on the 20th of the reporting month, and the second on the 5th of the next following the reporting month. Suppose that leave is granted to an employee from August 15, 2010. To calculate the average earnings, we will take the period for which wages have already been calculated. Thus, August will not enter this period, since the second part of the salary for August will only be paid to the employee on September 5, 2010, and the employee should be paid vacation three days before the start of the vacation. Therefore, the estimated period will be from June 1, 2009 to July 31, 2010.

5. How is a vacation arranged with subsequent dismissal? Does the employee have the right, instead of working out for two weeks, to go on paid leave? What day will be considered the last working day?

In accordance with the opinion of Rostrud (letter of December 24, 2007 No. 5277-6-1), the provision of leave with subsequent dismissal is the right of the employer, and not his duty. If the employee expresses a desire, instead of two-week processing, to go on annual leave, he needs to write a statement. Next, the employer decides whether to grant such leave to the employee or not. If the employer agrees with the situation, the relevant resolution appears on the application. Next, an order is issued on the provision of leave, a corresponding mark is put in the personal card of T-2 and vacation pay is issued.

In accordance with the same letter of Rostrud No. 5277-6-1 when giving an employee leave with subsequent dismissal in the afternoon

dismissal is considered the last day of vacation. However, all calculations are made before the employee goes on vacation, since at the end of the party the parties will no longer be bound by obligations. The same should be done with the work book and other documents that the employer must provide the employee. They must be issued before going on vacation. This point of view is also confirmed by the definition of the Constitutional Court of January 25, 2007 No. 131-O-O.

The duration of the annual main paid vacation is 28 calendar days (Article 115 of the Labor Code of the Russian Federation). According to the first part of Art. 125 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, annual paid leave can be divided into parts. At the same time, at least one of the parts of this vacation must be at least 14 calendar days.
As can be seen from the above norm, labor legislation establishes a requirement regarding the minimum duration of only one part of the vacation when it is divided into parts. The Labor Code of the Russian Federation does not say anything about the duration of another part of the annual paid leave. Consequently, the other part of the leave can be divided by agreement of the parties into parts, which may be of any duration.
According to Art. 120 of the Labor Code of the Russian Federation vacation duration is calculated in calendar days. The law does not establish how many calendar days of vacation should fall on weekends, and how many on workers. Therefore, vacation days in excess of 14 can be provided to the employee in parts in such a way that they will occur only on working days, or only on weekends, or on both, in any ratio.
Consequently, the employee and the employer can agree on how many days off and how many working days will be for part of the vacation exceeding 14 calendar days. If the employee and the employer have agreed to provide the employee with leave, the last day of which will be Friday, the next two days off (Saturday and Sunday) should not be included in the number of vacation days and should not be paid.
At the same time, we note that the employer always retains the right to disagree with the option proposed by the employee to break the vacation.
Please note that in accordance with Art. 8 of ILO Convention No. 132 on paid leave (hereinafter - the Convention), when dividing the leave into parts, one of the parts of the leave should be at least two continuous working weeks. In other words, article 8 of the Convention, like article 125 of the Labor Code of the Russian Federation, establishes the minimum duration of only one part of the leave. The Convention also does not stipulate that weekends (Saturday and Sunday) must be included in the number of vacation days.
We also recommend that you familiarize yourself with the letter of the Federal Service for Labor and Employment of July 17, 2009 N 2143-6-1.

Note:
As a general rule, an employer is an individual or legal entity (organization) that has entered into an employment relationship with an employee (part four of article 20 of the Labor Code of the Russian Federation). If an organization has entered into labor relations, the rights and obligations of the employer in labor relations are exercised by its governing bodies or persons authorized by them in the manner established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of constituent entities of the Russian Federation, regulatory legal acts of local governments, constituent documents of a legal entity (organization) and local regulations (part six of article 20 of the Labor Code of the Russian Federation). So, the General Director is the sole executive body of a limited liability company (hereinafter - LLC) (Article 40 of the Federal Law of February 8, 1998 N 14-ФЗ "On Limited Liability Companies"). Thus, the rights and obligations of LLC in labor relations are exercised by the General Director (the sole executive management body) or persons authorized by him.

Answer prepared by:
Expert of Legal Consulting Service GARANT
Troshina Tatyana

The answer passed quality control by GARANT Legal Consulting Service

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

Quite often readers come to our editorial office with a request to clarify whether it is possible to take a vacation of 5 calendar days, from Monday to Friday, thereby saving yourself two days of vacation, because Saturday and Sunday are so legal holidays? Or should a vacation be taken for 7 calendar days? We will deal with this issue.

How many days are allowed to go on vacation: for 1, 2, 5 days?

To divide the vacation into parts allows article 125 of the Labor Code of the Russian Federation. It states that when dividing the vacation into parts, at least one of the parts of this vacation must be at least 14 calendar days. Regarding the duration of the other part of the leave, the Labor Code of the Russian Federation does not say anything. That is, labor legislation allows you to take leave, for example, for one day, for two days, for five days, for ten days, etc.

Also, the Labor Code of the Russian Federation does not say anything about how many calendar days should be on weekends, and how many on workers. Therefore, when using vacation in parts, vacation days can occur both on working days and on weekends.

Are there restrictions on dividing the leave into parts?

But, in addition to the ability to divide the vacation into parts, article 125 of the Labor Code of the Russian Federation also establishes restrictions - the separation of the vacation is possible only by agreement between the employee and the employer.

Thus, if an employee wants to take leave in parts, he will have to agree with the boss about its duration, because the employer retains the right to disagree with this option of vacation breakdown.

Indeed, from the point of view of the employer, such a breakdown of leave into parts is not rational. If the employee wants to use the vacation in such a way as to exclude the weekend, he automatically increases the total number of vacation days.

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