Duration 7 calendar days. Five questions about vacation. The length of service includes

Every employee has the right to receive annual paid leave, and separate categories employees also on additional paid holidays. The procedure for granting vacations is regulated by the Labor Code of the Russian Federation, which means that it must be strictly observed. Let's consider how to send an employee on annual leave correctly.

STEP 1: SENDING NOTICE OF THE START OF VACATION OR RECEIVING AN EMPLOYEE APPLICATION

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

As you know, the order of granting vacations 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 beginning 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 to whom the employer is obliged to provide annual leave at a convenient time 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);
combat veterans (Federal Law of 12.01.1995 No. 5-FZ "On Veterans", as amended on 19.12.2016);
"Chernobyl victims" (clause 5 of article 14 of the Law of the Russian Federation of 15.05.1991 No. 1244-1 "On social protection citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant ", as revised by. from 28.12.2016);
employees whose spouses are military personnel (paragraph 11 of article 11 Federal law from 27.05.1998 № 76-FZ "On the status of military personnel", as amended by from 04/03/2017);
external part-time workers who are granted leave at the same time as the main job (part 1 of article 286 of the Labor Code of the Russian Federation);
Heroes Soviet Union, Heroes Russian Federation, full holders of the Order of Glory (clause 3 of article 8 of the Law of the Russian Federation of 15.01.1993 No. 4301-1 "On the status of Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory" as amended on 02.07.2013, as amended from 12/19/2016).

Vacation start notification

There is no approved form of notice of the start time of the vacation, so the employer should develop it independently. However, it should be noted that the document should contain the following information:

name of company;
outgoing number and date of registration of the document;
position, surname and initials of the employee;
Name structural unit;
the deadline for the annual leave to be granted;
employer's signature.

Note! The employee must receive a notice of the start time of the vacation (Example 1) 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 N.B. must go on vacation from 06/17/2017 to 06/30/2017. To get acquainted with the notice of the start time of the vacation in this case, Ilyina N.B. due no later than 02.06.2017.

If several employees go on vacation, they can be notified with one document (Example 2). It should be noted that two weeks before the vacation is the minimum period, you can notify earlier.

According to the schedule, employees go on vacation on various days of July - from 07/01/2017 to 07/31. 2017. This means that all employees going on vacation in July can be notified on June 12th. For those who go on vacation on 01.07.2017, the warning period will be the minimum, for everyone else - more than the minimum.

Vacation application

The law also does not provide for an application form for granting leave, therefore, having received an employee's application, it is necessary to check whether all the necessary details are present in the document, namely:

the name of the employing organization;
position, surname and initials of the head;
the 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 what kind of vacation he asks for (main or additional), the date of the start of the vacation and the number of days of vacation.

The employee signs and dates the application with his own hand. Next, the head puts on the application a visa for 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).

Annual leave applications 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 must 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 legal requirement, he pays the employee monetary compensation (Article 236 of the Labor Code of the Russian Federation). To avoid disputes, it is better to fix the deadlines for the provision of such statements in a local regulatory act, for example, in the Rules of internal work schedule:

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

STEP 2. WE CHECK WHAT VACATION IS FOR THE WORKER

By general rule employees are provided with annual paid leave of 28 calendar days (Article 115 of the Labor Code of the Russian Federation).

So, have the right to 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);
employees with irregular working hours - at least 3 calendar days a year (Article 119 of the Labor Code of the Russian Federation);
persons working in the regions of the Far North and equated localities - from 8 to 24 calendar days (Art. 321 of the Labor Code of the Russian Federation, Art. 14 of the Law of the Russian Federation of 19.02.1993 No. living in the regions of the Far North and equivalent areas ", as amended on December 31, 2014);
general practitioners and their nurses for continuous work in these positions over three years - 3 days (Decree of the Government of the Russian Federation of December 30, 1998 No. 1588 "On the establishment of general practitioners (family doctors) and nurses of general practitioners (family doctors) of an annual additional paid 3-day leave for continuous work in these positions ");

The following persons are entitled to annual extended paid leave:

employees with an assigned disability group - 30 calendar days (Article 23 of the Federal Law of November 24, 1995 No. 181-FZ "On social protection of disabled people in the Russian Federation", as amended on March 7, 2017);
workers educational institutions- 56 or 42 calendar days, depending on the type of institution and position (Resolution of the Government of the Russian Federation of May 14, 2015 No. 466 "On annual basic extended paid vacations", as amended on April 7, 2017);
full-time researchers 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 scientific workers 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 social protection of citizens employed in work with chemical weapons", as amended on 14.10.2014 );
healthcare workers diagnosing and treating HIV-infected patients - 36 working days (Decree of the Government of the Russian Federation of 03.04.1996 No. 391 "On the procedure for granting benefits to employees at risk of contracting the human immunodeficiency virus in the line of duty").

employees under 18 years of age (part 3 of Art. 122, Art. 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: CALCULATE VACATION EXPERIENCE

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

To do this, you should calculate the length of service that gives you the right to receive a vacation. After all, if the employee has not yet earned the vacation, then by providing the vacation in advance, the employer is at risk. Not always, upon dismissal, the employee is paid a salary sufficient to withhold the payment of the vacation days used in advance.

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

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

Please note that not all periods when the employee was listed in the organization can be included in the length of service, which gives the right to the provision of an annual next paid vacation (Article 121 of the Labor Code of the Russian Federation).

The length of service includes:

time of work in the organization;
the time when the employee did not work, but the place of work remained for him (time of annual paid leave, non-working holidays, days of temporary disability, weekends and other days of rest);
time of forced absenteeism illegal dismissal or suspension from work and subsequent reinstatement at work;
the period of suspension from work of an employee who has not passed the mandatory medical checkup through no fault of their own;
vacation time without saving wages not exceeding 14 calendar days during the working year.

The length of service for annual leave does not include:

time away from work without good reason;
time of parental leave;
unpaid leave time exceeding 14 calendar days during the working year.

Calculation of seniority for annual leave if the employee used less than 14 calendar days of unpaid leave during the working year.

Let's give an example of calculating the length of time for vacation.

Arinin M.A. adopted on May 16, 2016. The employee applied for an annual leave from 05.06.2017 for 14 calendar days. At the same time, the employee was provided with an annual paid vacation in the amount of 7 calendar days from 11/14/2016 to 11/20/2016, and on 12/30/2016 he used 1 day of leave without pay. Also Arinin M.A. was on sick leave from 20.02.2017 to 24.02.2017.

● For the working year from 05/16/2016 to 05/15/2017 Arinina 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 leaves, we take into account these periods in the length of service.

● Marinin M.A. also used 1 day of unpaid leave in the working year. However, since the total number of days does not exceed 14 calendar days, this day is also included in the length of service.

● Subtract the days of vacation already used from the total number of days eligible for the work period. Thus, Arinin M.A. for the period from 05/16/2016 to 05/15/2017 it is assumed:

28 k.d. annual leave - 7 k.d. used vacation = 21 c.d.

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

Calculation of the length of service for annual leave if the employee used more than 14 calendar days of unpaid leave during the working year.

If the employee used unpaid leave for a period of more than 14 calendar days, this period is also not included in the calculation of the length of service in accordance with Art. 121 of the Labor Code of the Russian Federation (see also Rostrud letters dated June 14, 2012 No. 854-6-1; dated December 18, 2012 No. 1519-6-1).

The employee was accepted on 11.09.2015. The employee from 05.12.2016 to 30.12.2016 was provided with 26 days of leave without pay.

The period of service, which gives the right to the provision of annual leave, includes only the period of unpaid leave in the amount of 14 calendar days. The rest of the days are not included in the vacation period and "shift" the border of the working year by 12 calendar days (26 - 14 = 12) Thus, the last day of the current working year will not be on 09/11/2017, but on 09/23/2017 (09/11/2017 + 12 days).

Calculation of seniority for additional leave for "harmful" work.

Additional vacation is planned (as well as annual) in the vacation schedule. However, the length of service, which gives the right to additional annual paid leave for work with harmful or hazardous 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 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 State Committee for Labor of the USSR, the All-Union Central Council of Trade Unions of 11/21/1975 No. 273 / P-20, as amended on January 26, 2017), a full additional leave is granted if the employee actually worked in industries, workshops, professions and positions with harmful working conditions for at least 11 months. If the employee has worked during the working year during harmful conditions less than 11 months, then additional leave is provided to him in proportion to the time worked.

To calculate the length of service, which gives the right to the specified leave, 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). The next step is to 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, it is necessary to divide the total number of days of such work during the year by the average monthly number of working days. If the balance is less than half of the average monthly number of working days, it is excluded from the calculation, if half or more, it is rounded up to a full month (Rostrud letter dated 18.03.2008 No. 657-6-0).

The employee was hired as a gas cutter on 07/27/2016. The employee applied for an annual leave from 12.06.2017 for 14 calendar days and an additional annual leave from 26.06.2017 for 12 calendar days (according to collective agreement). The employee was provided with an annual paid vacation in the amount of 7 calendar days from 11/21/2016 to 11/27/2016.

For the working year from 07/27/2016 to 07/26/2017, the employee, as a general rule, is entitled to 28 calendar days of vacation, as well as 12 days of additional vacation. Let's calculate the number of vacation days for work in harmful working conditions.

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

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

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

28 k.d. annual leave + 12 k.d. additional vacation - 7 k.d. used vacation = 33 cd

The employee was hired as a machinist on 10/24/2016. He applied for an annual leave from 19.06.2017 for 14 calendar days and an additional annual leave from 03.07.2017 for 8 calendar days (according to the collective agreement). The employee has not yet used his vacation.

At the time of the expected start of the additional vacation, the employee will work in harmful conditions from 24.10.2016 to 02.07.2017, which is 8 months. Since the employee has worked for less than 11 months, it is necessary to calculate the number of additional vacation days. To do this, you need to determine the number of days in which the employee actually worked in harmful working conditions for at least half of the working day.

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

124 days of work in hazardous conditions / 29.4 ( average monthly number of working days) = 4.22 c.d.

Thus, as of 03.07.2017, the 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 months 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 basic annual leave. Also, the employer provides the employee with additional leave in the amount of 4 calendar days.

STEP 4: DRAWING OUT THE LEAVE ORDER

If there are no obstacles for the employee to go on vacation, you can issue an order. Most often, it is drawn up according to the 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 his own form. The employee reads the order against signature.

STEP 5: MAKE A NOTE-CALCULATION

To calculate the other payments due to the employee when granting him an annual paid or other leave, you need to draw up a calculation note (Example 9). It is drawn up according to the unified form No. T-60 or according to the form approved by the organization.

The calculation note must be transferred to the accounting department to calculate vacation pay and pay them to the employee.

STEP 6: ADDING INFORMATION TO THE EMPLOYEE'S PERSONAL CARD

After issuing the order, the personnel service must enter the data on the leave in the employee's personal card (form No. T-2 or in the form of organization) (Example 10).

STEP 7: CONSIDER VACATION DAYS IN THE TIME TABLE

The employer keeps a timesheet in accordance with the form No. T-13 or in the form approved by the organization. In the time sheet, the days of annual paid leave are also taken into account. The days when the employee is on vacation must be designated with the OT code or 09 (Example 11).

STEP 8: ADD TO YOUR HOLIDAY SCHEDULE

The organization must approve the vacation schedule no later than two weeks before the start of the new calendar year. When drawing up 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 their vacations, information about the actual use of vacations is entered into the schedule.

Sometimes changes are made to the schedule. For example, if an employee asks to postpone his annual paid leave to another time (and the employer agrees), extend the employee's vacation (for example, in connection with incapacity for work during the vacation) or recall the employee from vacation.

After completing the application, it is necessary 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 an obligation. In our opinion, in this case, it is sufficient to refer to the employee's statement in column 8 (Example 12).

SUMMARY

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

2. If the employee wants 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 an off-schedule vacation or to refuse the employee.

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

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

6. Following the procedure, personnel service must issue an order on the provision of the main annual paid leave, draw up a calculation note, make entries in the employee's personal card, reflect the vacation in the time sheet and enter information into the schedule
vacations.

Vacation is one of the types of rest time provided 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 the vacation into parts of less than 7 calendar days. This leads to the fact that the employee cannot use the vacation for good rest and restoration of working capacity. In addition, when granting leave for a period of 1 to 5 days, the concepts of "calendar day" and "working day" are substituted.

Of course, an employee has the right to take leave for at least one day for 28 weeks in a row, but such a "rest" will not give any result. According to the author, the employer should try to convince the employee to take at least 7 calendar days. The author's argumentation is based on the concept of a calendar day on which annual leave is granted.

Let's remember about 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 of the parts of this leave 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 counting 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 also included in the period calculated in calendar weeks or days."

In addition, the employee during labor activity a certain working time regime is established. The concept of working time is disclosed in article 91 of the Labor Code of the Russian Federation: “ Work time- the time during which the employee, in accordance with the internal labor regulations of the organization and the terms of the employment 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 day off and a working week with the provision of days off on a sliding schedule. That is, working days and days off should alternate.

An indirect argument in this matter can be the decree of the Government of the Russian Federation of April 11, 2003 No. 213 "On the specifics of the procedure for calculating the average wage", which spells out the procedure for converting working days to 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 a 5-day working week falling on the hours worked by a factor of 1.4." This means that the cost of a working day is not equal to the cost of a calendar day.

Harm to health

Providing part of the leave to an employee for less than 7 calendar days is impractical from the point of view of employee rest regimes and compliance with the requirements of labor protection legislation. This is what the International Labor Organization has to say about vacations.

Fragment of the document

(...) the Conference, having adopted the Convention granting workers annual leave with pay, whereas the purpose of such leave is to provide workers with opportunities for recreation, entertainment and the development of their abilities, bearing in mind that the conditions set out in the Convention constitute the minimum standard to which any the system of paid leave, considering that it would be desirable to clarify the methods of application of this system, recommends that each Member of the Organization take into account the following proposals: (...)

2. While it may be desirable in special cases to provide for a breakdown of leave, it should be avoided that such special measures run counter to the purpose of leave, which is intended to enable the worker to recover his physical and mental strength expended 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.

Calculation problems

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

When granting leave to an employee in the amount of 28 calendar days at a time, 20 working days and 8 days off fall for this period (with a five-day working week). In the event that you provide vacation for 1 or 2 days, you will actually lengthen the vacation period. This is due to the fact that the 14 working 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 a vacation, regardless of its duration - 28 calendar days or any less, the following documents must be drawn up in the organization (if the employee goes on vacation not on schedule, but on request):

Employee statement.

Leave order (unified form T-6).

Calculation note for calculating vacation pay (drawn up by the accounting department).

Mark on personal card T-2 (section 8).

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

A mark in the vacation schedule (unified form T-7 in the "actual date" column and, if necessary, in the "vacation transfer" column - 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	Document execution (making it legal)	The official in the organization responsible for adhering to this procedure
1	Statement	Writing	Employee
2		registration
3		Harmonization	Head of department
4		Approval (resolution)
5	Leave order	Transfer of the employee's application to the personnel service	The employee himself or the secretary
6		Development of a draft order	Human Resources Officer
7		Registration of an order	Secretary (or other responsible person)
8		Signing an order	The head of the organization or other authorized person
9		Familiarization with the order	Employee
10	Calculation note for calculating 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 calculation note	Human Resources Officer
11		Calculation and development	Accountant
12		Issuance of vacation pay (no later than three days before the start of the vacation). If the money is transferred to the employee on the card, the employee must 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 stamp	Human Resources Officer
15	Time sheet	Vacation stamp	Responsible official
16	Vacation schedule	Stamp on the actual date of the vacation and, if necessary, on the postponement of the vacation	Human Resources Officer

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

In practice, the organization, striving 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 "donate" when registering "small" parts of the leave

Procedure and documents	Effects
Do not issue vacation pay	The accounting department is excluded from the procedure for granting leave. This leads to the fact that the organization violates the requirements of article 136 of the Labor Code of the Russian Federation, falling under article 142 of the Labor Code of the Russian Federation "The employer's liability for violation of the terms of payment of wages and other amounts due to the employee" and must pay the employee interest in accordance with article 236 of the Labor Code of the Russian Federation
Do not add current information to the vacation schedule	This entails the misuse of such a document as a vacation schedule, and during labor inspection may lead to the responsibility of a specific official whose duties include
Do not make marks in the personal T-2 card	Leads to misuse of a document such as a personal T-2 card, and when checked, the Federal Labor Inspectorate can 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 indicating that he is familiar with the order	Until the employee signs the vacation order, the vacation formally cannot begin for him. The signing of the employee's application does not give legal effect to the vacation granting procedure. Formally, if an employee went on vacation without reading the order, this can be interpreted as absenteeism
Vacation applications are not registered	Violation of the principles of giving legal force to documents and organization of document flow in the company
There is no resolution of the head of the organization on the vacation application	Again, violation of the principles of giving legal force to documents. 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 employee's request without a corresponding order from the employer. A logical question arises: for whom does the HR department work?
There are no marks in the timesheet (as a rule, in those organizations where the timesheet 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 "recording of the time actually worked by each employee"

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

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

So, when deciding on granting leave in parts, we recommend that the employer take into account the following:

1. Leave can be divided into parts only if the employer agrees to such a division. When deciding on the granting of vacation, the employer must take into account that he is obliged to pay the employee vacation pay no later than three days before the start of this part of the vacation (Article 136 of the Labor Code of the Russian Federation). And in case of non-payment of vacation pay to the employee 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, in the amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time from the amounts unpaid on time for each day of delay, starting from the next day after the due date of payment to the day of actual settlement, inclusive. The amount of this compensation can be increased by collective or labor agreements. Obligation to pay the specified monetary compensation arises regardless of whether the employer is at fault.

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

When considering an example, we will proceed from the common practice of paying vacation pay on the day wages are 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 dispose of their in cash... But in reality, the employee will receive vacation pay only on the 30th (that is, on the day the wages are paid).

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

Count:

Compensation = Vacation × 1/300 × Refinancing rate × 14 (delay period)

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

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

1 Convention No. 52 of the International Labor Organization "Concerning annual holidays with pay" (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 the season of universal zeal for the sea and the sun. At the same time, a hot time begins for the accountant at the workplace. The reason is controversial issues, which arise almost more than employees striving to relax. Let's consider the most important of them.

Answers questions are given Victoria Bespalova, Lead Consultant, Head of Department labor law by NS Consulting.

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

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

Article 128 of the Labor Code states: "for family reasons and other valid reasons, an employee, upon his written application, may be granted unpaid leave, the duration of which is determined by agreement." At the same time, the Code does not stipulate that such leave should be taken into account in calendar days. Thus, it is quite acceptable to obtain an unpaid leave for the days from Monday to Friday, which cannot be said about the next annual paid leave. Articles 115 and 120 of the Labor Code clearly establish the procedure for granting the next annual paid leave exactly in calendar days.

When dividing the vacation into small parts, the employer directly violates the requirements of these articles, granting vacation not in calendar days, but in 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 actually rests. Working days clearly refer to the days when the employee was supposed to work (Art. 14 of the Labor Code).

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

Answer to this question depends on whether the employee has already received an increased salary for a period of the last 12 calendar months preceding the calculation of vacation pay or not. If yes, then according to clause 16 of Resolution No. 922, when calculating average earnings for calculating vacation pay, a multiplying coefficient should be applied. It is defined simply: the new salary must be divided by the amount of the salary before the increase. The salary should be recalculated from the beginning of the billing period to the month of the increase.

Let's look at a specific example. An employee goes on vacation from July 21, 2010. The estimated 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, from June 1 - 25,000 rubles. The coefficient is taken as 1.25 (25,000 rubles: 20,000 rubles). In the amount of payments for the calculation 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 one, 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 month).

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

When the settlement period is not fully worked out, the number of calendar days in incomplete months and fully worked is determined separately. 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, you need 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 a given month and multiply by the number of calendar days, worked this month.

Let's say that from May 17 to May 23, 2010 (7 calendar days) an employee was sick. For May, he was paid a salary in the amount of 9,000 rubles. and the payment of the certificate of incapacity for work was made in the amount of 2000 rubles. The employee's salary 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 rubles x 11 months + 9,000 rubles). Thus, the average daily earnings of an employee will be 407.33 rubles. (141,000 rubles: (29.4 x 11 + 22.76), which means that the amount of vacation pay will be 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 Resolution No. 922, the period for calculating vacation pay depends on the actual accrued wages.

Let's give an example. The timing of the issuance of wages in accordance with labor contract and the internal labor regulations are as follows: the first half of wages is paid on the 20th day of the reporting month, and the second - on the 5th day in the next month after the reporting month. Suppose that the employee is granted leave from August 15, 2010. To calculate the average earnings, we will take the period for which the wages have already been accrued. Thus, August will not be included in this period, since the second part of the wages for August will be accrued to the employee only on September 5, 2010, and the employee's vacation pay should be paid 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 leave with subsequent dismissal formalized? Does the employee have the right instead of two weeks working off go on paid vacation? What day will be considered the last working day?

In accordance with the opinion of Rostrud (letter dated December 24, 2007 No. 5277-6-1), the granting of leave with subsequent dismissal is the employer's right, and not his obligation. If an employee expresses a desire to go on annual leave instead of two weeks of processing, 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 state of affairs, a corresponding resolution appears on the application. Next, an order for granting leave is drawn up, a corresponding mark is made in the personal T-2 card and vacation pay is issued.

In accordance with the same letter from Rostrud No. 5277-6-1, when the employee is granted leave with subsequent dismissal in the afternoon

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

The duration of the main annual paid leave 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. Moreover, at least one of the parts of this leave must be at least 14 calendar days.
As can be seen from the above norm, labor legislation establishes a requirement for the minimum duration of only one part of the leave when it is divided into parts. The Labor Code of the Russian Federation does not say anything about the duration of the other part of the annual paid leave. Consequently, the other part of the vacation can be divided by agreement of the parties into parts that can be of any duration.
According to Art. 120 of the Labor Code of the Russian Federation, the duration of the vacation is calculated in calendar days. The law does not establish how many calendar days of vacation should fall on weekends, and how many - on working days. Therefore, vacation days exceeding 14 can be provided to the employee in parts in such a way that they will fall on working days only, or only on weekends, or on both of them in any ratio.
Consequently, the employee and the employer can agree on how many days off and how many working days will fall on the part of the leave 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 employee's proposed vacation breakdown option.
Please note that in accordance with Art. 8 of the ILO Convention No. 132 on paid leave (hereinafter referred to as the Convention), when the leave is divided into parts, one of the parts of the leave must 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 vacation. The Convention also does not provide that weekends (Saturday and Sunday) must necessarily be included in the number of vacation days.
We also recommend that you read the letter Federal Service on labor and employment of July 17, 2009 N 2143-6-1.

For your information:
As a general rule, an employer is recognized as individual or a 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 an employment relationship, the rights and obligations of the employer in labor relations are carried out by its management bodies or their authorized persons 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 the constituent entities of the Russian Federation, regulatory legal acts of bodies local government, constituent documents legal entity(organizations) and local regulations(part six of article 20 of the Labor Code of the Russian Federation). So, the CEO is the sole executive body societies with limited liability(hereinafter - LLC) (Article 40 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies"). Thus, the rights and obligations of an LLC in labor relations are carried out director general(the sole executive management body) or persons authorized by him.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Troshina Tatiana

The answer passed quality control by the Legal Consulting Service GARANT

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

Our editorial office quite often receives questions from readers asking 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 legal days off? Or should you take vacation 7 calendar days in advance? Let's understand this issue.

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

The division of leave into parts is allowed by Article 125 of the Labor Code of the Russian Federation. It says that when the vacation is divided into parts, at least one of the parts of this vacation must be at least 14 calendar days. The Labor Code of the Russian Federation does not say anything about the duration of the other part of the leave. That is, the labor legislation allows taking 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 fall on weekends, and how many on working days. Therefore, when using vacation in parts, vacation days can fall on both weekdays and weekends.

Are there any restrictions on the division of leave into parts?

But, in addition to the possibility of dividing the vacation into parts, Article 125 of the Labor Code of the Russian Federation also establishes restrictions - the division of vacation is possible only by agreement between the employee and the employer.

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

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

It might be useful to read: