Overtime work: features of registration and payment. When it is allowed to involve an employee in overtime work Overtime work article of the Labor Code of the Russian Federation

At a certain stage in the formation of society, such a thing as "overtime work" arose. Its appearance is determined by two other social phenomena - hired activity and the normal duration of working hours. Next, we will analyze what constitutes overtime work and their payment.

General information

Overtime work, which is paid in a special way, is primarily associated with the actual emergence of hired activity. Accordingly, hired people appeared. Along with this, such a thing as "normal working hours" arose. The latter phenomenon is always associated with a complex struggle between hired people and employers for their interests.

For the worker, the norm of the working day, on the one hand, should provide an opportunity to develop and maintain his professional abilities, to prevent premature deterioration of the body. On the other hand, it should allow him to receive enough money to meet the social needs, both his own and the family in which he lives. For the employer, the norm of labor time should ensure such an organization of production activities that would allow the release on the market of a volume of products sufficient to compensate for the costs of its manufacture and receive income on invested capital.

Main problems

According to Art. 91 of the Labor Code, the length of working time cannot be more than 40 hours per week. In its activities, the employer can not always comply with the norms. For example, an unforeseen accident, a process failure, a power outage, and other circumstances may occur at a plant. All this leads to a loss of labor time, a decrease in production volume and product quality, and other negative phenomena.

In addition, there may be a need to fulfill a profitable or urgent order. In order to partially or fully compensate for the losses, the employer is forced to resort to an increase in the amount of labor time. In some cases, the production process is of such a nature that it simply cannot occur within the normal duration. In this regard, it requires the use of specific forms of organization of activities.

Legal aspect

As international practice shows, overtime work takes place in society under certain circumstances. Payment for it is carried out according to the standards adopted in the country. In Russia, this procedure is regulated by law. In particular, art. 97 of the Labor Code states that the employer has the right to involve the employee in activities outside the normal length of the working day in the prescribed manner.

Duration standards are determined by the Code itself, other laws of federal significance and other regulations, collective agreements, contracts, local documents. The norm of the length of the day is fixed in the labor contract. An employee may be involved in additional activities if he has an irregular day or overtime work. Payment in these cases is different.

Definition

Art. 99, part 1 of the Labor Code states that overtime work is an activity performed by an employee at the initiative of the employer outside the daily shift. When summing time, this is activity in excess of the normal number of hours during a particular period. One of the important characteristics follows from the context. It is, in particular, that overtime work acts as a forced measure. It is caused by violations of the normal course of the production process.

Types of staff engagement

They are classified on the basis of the reasons for which there was a need for overtime work. There are 3 types of employee engagement:

Written agreement

The law establishes the following cases in which the involvement of this type is allowed:

In the event that it is necessary to complete (perform) the work that has been started, which, due to an unforeseen delay due to the technical conditions of production, could not be completed (performed) during the normal duration of the shift established for the employee, if its incompleteness may lead to damage to the property of the employer (including owned by third parties, but located in production, if the employer is responsible for its safety), municipal, state property or pose a threat to the health and life of people.
When carrying out activities related to the repair and restoration of mechanisms or structures when malfunctions can cause a stop in production.
To continue work in case of non-appearance of the shift, if it does not allow a break. In such cases, the employer must find a replacement employee.

Engagement without consent

The law defines the following conditions under which this is possible:

To prevent a production accident or catastrophe and / or eliminate their consequences.
When carrying out socially important activities to combat unforeseen circumstances that disrupt the stable functioning of communication, transport, sewerage, heating, gas and water supply systems.
When performing work that is necessary during the introduction of martial law or a state of emergency, as well as urgent actions in emergency situations. In this case, we are talking about disasters - fires, famine, floods, epidemics, earthquakes, or their threat.

Written consent, taking into account the opinion of the competent authority

This type of attraction is possible in other cases not listed in parts 2 and 3 of Art. 99. The Code does not provide a specific list of these situations. As world practice shows, overtime work is resorted to due to adverse weather and various force majeure circumstances.

In particular, we mean the factors that provoked serious disruptions in the production process and the loss of time due to its suspension. The situation is not considered a violation of the law when the employer, with the written consent of the employees, taking into account the opinion of the elected body of the trade union, organizes, for example, the execution of a very profitable and urgent order overtime.

Duration limits

In Art. 99 it is established that the duration of overtime work should be no more than 120 hours / year and 4 hours for 2 consecutive days for each employee. This restrictive practice exists in many countries. This limit can be yearly, monthly, weekly or daily. In Russia, in some cases, a combination of these maximums is used. In a number of states, the duration of overtime work is not limited by law. For example, this is typical for the USA and Denmark. And in Japan, the duration has no restrictions for adult men.

Special categories

According to Art. 264, 259 and 99 it is allowed to involve the following persons in overtime work:

disabled people;
fathers and mothers who are single-handedly raising children under the age of five;
women with dependents under the age of three;
guardians of children under the age of five;
employees caring for sick relatives;
workers who have dependent children with disabilities.

At the same time, their written consent, as well as the absence of medical contraindications in accordance with the conclusion issued in accordance with the procedure determined by the Federal Law or other regulatory acts, are mandatory conditions. Employees of these categories should be familiar with the right to refuse to work outside the shift.

Overtime: pay (general information)

From the above features - compulsion, emergency, not in all cases of voluntary reduction of free time of employees - comes a specific approach to determining the amount due to personnel for activities outside the shift. How is payment made? Overtime work (the Labor Code of the Russian Federation contains fairly clear instructions on this issue) is compensated to employees in an increased amount. The sum consists of two parts. One pay is for regular work and the other is for overtime work. The Labor Code of the Russian Federation establishes mandatory compensation for the reduction of a person's free time. Accounting is done by the hour.

Overtime: Labor Code. Payment

How does a person receive their compensation? The accounting process is regulated by article 152. Payment for overtime work is carried out depending on the number of hours. So, for the first 2 hours, payment is 1.5 times more than usual. Subsequent hours are charged double overtime pay. The specific amount of the amount may be determined in the contract between employees and the employer, a local act or collective agreements. At the request of a specialist, payment for overtime and night work can be compensated by providing additional rest. His time should not be less than the number of hours spent on off-shift activities.

Thus, the legislator has provided two options for compensation, how payment is made (overtime, the Labor Code of the Russian Federation is the legal basis for these forms). They are in line with world practice. The first is increased overtime pay, the second is additional rest. In this case, the employee has the right to choose any of the forms. If he does not wish to take additional rest, then he will be charged overtime pay. The amounts established by law are considered the minimum (basic) guarantees of the state. A contract or a collective agreement, as well as a local act, may establish a different procedure for paying for overtime work. However, it must not be contrary to law. In practice, many employers set a double rate from the first hour of overtime work.

Important point

The labor code contains provisions prohibiting certain types of overtime work. The same restrictions are contained in other regulations. Thus, it is forbidden to carry out overtime work with vibration hazardous, pneumatic tools, chainsaws and other complex technical equipment.

Accrual system

When determining in an employment contract, collective agreement or local act the amount for overtime work, it should be clearly and precisely formulated what will be included in it. So, there are, for example, "harmful" industries. If off-shift activities are carried out under such conditions, despite the fact that during normal hours the employee receives more than other employees in a "harmless" enterprise, overtime pay is also based on these conditions.
Often it is necessary to involve not one person, but a team in activities outside the shift. If the superintendent is given a supervising bonus at normal times, these conditions apply to overtime. That is, he must receive the amount increased by the established amount. If an off-shift employee ceases to perform some of the tasks assigned to him during normal hours, then they should not be paid.

Examples

The employee in the main time combines positions. Accordingly, he receives a surcharge for this. If the combination of positions is not required to carry out activities outside the shift, the conditions for receiving increased compensation do not apply to the combination. When determining the amount of compensation in the documentation, it is necessary to establish how the overtime pay will be calculated if the employee is already receiving more during regular time. For example, there is a multi-shift regime. The employee must finish the activity at 20 o'clock. But his replacement did not come out. The employee confirms his consent to overtime work until a shift is found, but not longer than 4 hours. What can he claim in this case? Overtime pay can be paid as follows:

Increased size for 4 hours off shift. At the same time, from 20 to 22 hours - the rate is 1.5, and from 22 to 24 - 2.
At least 40% for activities at night for 2 hours of work.
For the first 2 hours - 20% for the performance of duties in the evening outside the shift (if this condition is provided by the employer).

World practice

Acts of the International Labor Organization provide that overtime work is paid in an amount greater than in regular time by 25%. As mentioned above, compensation may be additional rest. Thus, the system of time off is used in Luxembourg, Switzerland, Denmark, the Netherlands, Belgium, Italy, Germany, France. In these states, it is provided for by law or on the basis of a collective agreement. In some countries, overtime pay is at the regular rate. This refers to states with specific systems that imply the obligation to conduct activities outside the shift to compensate for the loss of regular time provoked by force majeure, natural disasters, strikes and other circumstances. In a number of countries, overtime work at night is generally prohibited. Exceptions are special, duly justified cases with the consent of the Ministry of Labor. Spain, for example, is such a country.

Holidays and weekends

In Art. 153 it is established that payment during these periods is carried out at a double rate. But activities can be carried out both within and outside the shift. The procedure for payment on weekends and holidays is established by the current resolution of the Presidium of the All-Union Central Council of Trade Unions and the USSR State Labor Committee of 1966. It also approved an explanation on compensation issues. Thus, paragraph 4 states that when calculating hours on weekends and holidays, overtime work should not be taken into account, because it is already paid at a double rate. By decision of the Supreme Court, this provision is considered not contrary to the law.

Tariff-free system

In this case, a certain procedure for payment of overtime work should be established. You can consider the case when the calculation takes into account the actual time. In such a situation, two options are possible. The first is that overtime activities are translated into conventional hours of the main work. Thus, they increase the total fund of time. It is taken into account in the process of distributing wages to employees. The first 2 hours of activity outside the shift are converted into conditional with a coefficient of at least 1.5, the next - at least 2. For example, an employee worked 11 hours with the main day length of 7 hours. With a tariff-free system, he is credited with at least 14 hours: 7+(2x1.5)+(2x2). According to the second option, the average hourly earnings are calculated. For activities outside the shift, the tariff established by the employer is charged. It should not be less than 50% of earnings per hour for the first 2 hours and 100% for the next time.

Source of compensation

It can be a special wage fund formed by the employer. Among other things, it is intended for the implementation of guarantee charges, which are provided for by law or other regulations, a collective agreement, a contract between an employer and an employee. A local act of the enterprise, for example, an order to pay overtime, can also serve as a basis. Some employers use a bonus system as compensation. However, this practice is generally considered not very successful. It is more expedient to use bonuses when calculating salaries during the main working hours.

What kind of work is considered overtime? Who can't be attracted to it? How long can it last? When is written permission from an employee necessary, and in what cases can it be dispensed with? What is the procedure for overtime pay? And how to pay for it with the summarized accounting of working hours? Violation of the procedure for involving an employee in overtime work is punishable by a heavy fine.

There are many situations when an employee has to stay late at work: you need to finish unfinished business, replace an absent colleague, or submit an annual report on time. What is it: overtime, expansion of service areas, increase in work volume or irregular working hours? These concepts are often confused. However, it is not surprising, because, for example, both overtime work and irregular working hours refer to work outside the working hours established for the employee. Let's consider what is meant by overtime work, what guarantees and compensations are due to employees, how to draw up an attraction to it, and, most importantly, how to correctly calculate and pay for such work.

What kind of work is considered overtime?

Overtime is recognized as work that meets the following conditions (part 1 of article 99 of the Labor Code of the Russian Federation):

performed at the initiative of the employer;
goes beyond the limits of the working time established for the employee - daily work (shift).

Pay attention to such an important fact: if an employee is late at work on his own initiative (there can be any reasons for this: low labor productivity, the need to complete personal affairs, etc.), such work is not taken into account and is not paid as overtime. A similar opinion was voiced in the letter of Rostrud dated March 18, 2008 No. 658-6-0. Also, the performance of labor duties within the framework of an irregular working day is not recognized as overtime work.

If the organization has adopted a summarized accounting of working time, then overtime is considered to be work established in excess of the normal number of working hours for the accounting period. Therefore, it is very important for the employer to determine the accounting period (month, quarter or other period up to a year) in the internal labor regulations. This is necessary for the correct calculation of hours worked by the employee overtime (Article 104 of the Labor Code of the Russian Federation).

Keep in mind that involvement in overtime work should not be systematic, it can occur sporadically in certain cases (Rostrud letter dated 06/07/2008 No. 1316-6-1).

Length of overtime

The normal working time is 40 hours per week (Article 91 of the Labor Code of the Russian Federation). In turn, the duration of overtime work should not exceed for each employee four hours for two consecutive days and 120 hours a year (part 6 of article 99 of the Labor Code of the Russian Federation). For this, the employer must ensure that the overtime worked by each employee is accurately recorded. The time worked by an employee overtime should be reflected in the time sheet (for example, in the form No. T-12 (No. T-13), approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1). Overtime hours in the timesheet should be marked with the letter code "C" or the digital "04", under which the number of hours of processing is indicated.

At the same time, for some categories of workers, a reduced working time is established, which is normal for them (Article 92 of the Labor Code of the Russian Federation). These include, in particular:

minor workers - from 24 to 35 hours per week, depending on age;
disabled people of group I or II - no more than 35 hours a week;
employees whose working conditions at their workplaces, according to the results of a special assessment of working conditions, are classified as harmful working conditions of the 3rd or 4th degree or dangerous working conditions - no more than 36 hours a week;
women working in the regions of the Far North (Article 320 of the Labor Code of the Russian Federation);
teachers (Article 333 of the Labor Code of the Russian Federation);
health workers (Article 350 of the Labor Code of the Russian Federation).

In addition, the rules regarding overtime work apply both to employees at the main place of work and to part-time workers.

Who is not allowed to work overtime?

Pay attention to this rather important point. Not allowed to work overtime the following categories of workers:

pregnant women (part 5 of article 99 of the Labor Code of the Russian Federation);
persons under the age of 18, with the exception of:

certain categories of creative workers (Article 268 of the Labor Code of the Russian Federation). Their list was approved by Decree of the Government of the Russian Federation of April 28, 2007 No. 252 “On approval of the list of professions and positions of creative workers in the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) the performance (exhibition) of works, the features of the labor activity of which are established by the Labor Code of the Russian Federation”,
athletes, if the collective or labor contract, agreements, local regulations establish cases and procedures for engaging in overtime work (part 3 of article 348.8 of the Labor Code of the Russian Federation);

3. employees during the period of validity of the student agreement (part 3 of article 203 of the Labor Code of the Russian Federation);

4. other employees (as a rule, restrictions are established in connection with medical contraindications, for example, in relation to persons with an active form of tuberculosis - Decree of the Council of People's Commissars of the USSR of 01/05/1943 No. 15; drivers admitted to driving a vehicle as an exception due to a special state of health, - Sanitary rules for occupational health of car drivers, approved by the Ministry of Health of the USSR on 05.05.1988 No. 4616-88).

In addition, for certain categories of employees, special procedure for engaging in overtime work. The employer is obliged:

obtain the written consent of the employee;
make sure there are no medical contraindications;
notify employees under a personal signature of the right to refuse to perform overtime work.

Such employees include (part 5 of article 99, article 259, 264 of the Labor Code of the Russian Federation):

disabled people;
women with children under the age of three;
mothers and fathers raising children under the age of five without a spouse;
workers with disabled children;
employees caring for sick members of their families in accordance with a medical report;
guardians (custodians) of minors.

Question from practice.

The employee, when drawing up an employment contract, did not notify the employer that she was a disabled person of group II, and did not submit documents confirming her disability. After the expiration of the probationary period, she brought a certificate of medical and social examination and an individual rehabilitation program (IPR) for a disabled person. In accordance with these documents, she is recommended to sit in the office for no more than 35 hours a week. The employment contract stipulates a working week of 40 hours. The employee believes that she has been working overtime all this time and demands additional payment for these hours. Are the employee's demands correct?

Documents confirming disability are not contained in the list of documents established by Part 1 of Art. 65 of the Labor Code of the Russian Federation, which the employee is obliged to present to the employer when concluding an employment contract. An employer concluding an employment contract with an employee on a general basis (not against the quota) is not only not obliged, but also not entitled to demand documents confirming disability from him (part 3 of article 65 of the Labor Code of the Russian Federation). The submission of such documents is the right of the employee.

Therefore, the obligation of the employer to create recommended working conditions for a disabled employee will arise only after the submission of documents confirming disability.

In order to avoid claims from regulatory authorities and further disputes with the employee, the employer must record the date of receipt of documents confirming disability from the employee.

Involvement in overtime work with the consent of the employee and without

By order of the employer, an employee without his consent can be involved in overtime work (part 3 of article 99 of the Labor Code of the Russian Federation):

to prevent a catastrophe, industrial accident, eliminate their consequences;
to eliminate the circumstances due to which the centralized systems of water, heat and gas supply, transport and communications do not function;
in the event of a state of emergency or martial law and in other emergency cases that threaten the population (fires, floods, etc.).

The consent of the trade union organization is not required to engage in work on the indicated grounds, since these circumstances are extraordinary. In case of refusal to perform such work, an appropriate act is drawn up, and the employee is subject to disciplinary liability.

With the written consent of an employee, an employee can be involved in overtime work in the following cases (part 2 of article 99 of the Labor Code of the Russian Federation):

if necessary, perform (finish) the work that has been started, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if failure to perform this work may result in damage or destruction of the employer’s property or endanger life and health of people;
during temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction can cause a stoppage of work for many employees;
to continue work if the replacement employee does not appear, if the work does not allow a break.

In other cases, involvement in overtime work is allowed only with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization (part 4 of article 99 of the Labor Code of the Russian Federation, ruling of the Supreme Court of the Russian Federation of November 14, 2006 in case No. 4-B06-31).

It is important for the employer to remember that he is obliged notify certain categories of employees of the right to refuse such work against signature.

It is important to understand that all verbal agreements with employees can lead to disputes. To avoid this, it is necessary to adhere to the position that all employee-employer agreements are documented. The employer issues an order to engage in overtime work and must familiarize the employee with it. The unified form of such an order is not approved, so the employer draws it up in free form. The order must indicate the reason for involving the employee in overtime work, the date of commencement of work, the surname, name, patronymic of the employee, his position and the details of the document in which the employee expressed his consent to be involved in such work.

If the collective agreement or local regulatory act establishes the amount of the surcharge, then it is possible to indicate this amount in the order. The amount may also be determined by agreement of the parties. Overtime work can be compensated by an increased wage or additional rest time at the request of the employee (Article 152 of the Labor Code of the Russian Federation). If the employee has decided on the form of compensation, this item is also included in the order. With the order of the employee must be familiarized under the signature.

Overtime pay

Overtime work is compensated by the employee with increased pay:

the first two hours of processing are paid at least one and a half times,
subsequent hours - at least twice the amount (Article 152 of the Labor Code of the Russian Federation).

Specific amounts of payment may be established by local regulations, as well as by a collective or labor agreement.

Despite the fact that the Labor Code of the Russian Federation specifies how to pay for overtime work, questions and disputes still arise. This is because the procedure for determining one and a half and double overtime pay is not clearly spelled out in the legislation. The employer naturally raises the question: in relation to what amount should the calculation be made?

In practice, the question often arises: how to pay for overtime work on a non-working holiday?

According to the general rule, work on a weekend or non-working holiday is paid at least twice the amount (Article 153 of the Labor Code of the Russian Federation). However, in paragraph 4 of Explanations No. 13 / p-21 “On compensation for work on holidays” (approved by the Decree of the USSR State Committee for Labor, the Presidium of the All-Union Central Council of Trade Unions of 08.08. 423 of the Labor Code of the Russian Federation)), it is indicated that when calculating overtime hours, work on non-working holidays, performed in excess of the norm of working hours, should not be taken into account, since it has already been paid in double the amount.

How to pay for overtime with summarized accounting of working hours

To understand this issue, one should adhere to paragraph 5.5 of the Recommendations on the use of flexible working hours at enterprises, institutions and organizations of the national economy sectors, approved by the USSR State Labor Committee Resolution No. 162, All-Union Central Council of Trade Unions No. 12-55 of 05/30/1985. These Recommendations are valid to the extent that they do not contradict the Labor Code of the Russian Federation (Article 423 of the Labor Code of the Russian Federation, decision of the Supreme Court of the Russian Federation of October 15, 2012 No. AKPI12-1068).

In accordance with the document, it is necessary to determine the number of working days in the accounting period and pay for the first two hours that fall on average on each working day of the accounting period, at least one and a half times, and for the next hours - at least twice the amount.

With the summarized accounting of working time, overtime hours are calculated at the end of the selected accounting period (month, quarter, half year, year). At the same time, on some days an employee can work more, on others - less, the main thing is that during the accounting period he worked out the established norm of hours. Exceeding this limit is considered overtime work.

Note: the time when the employee was absent from work for a good reason (for example, was ill or was on vacation) is excluded from his norm of working time.

At the request of the employee, payment for involvement in overtime work can be replaced by the provision of additional rest time.

So, let's pay attention to the main points related to overtime work:

ask for the written consent of the workers and the opinion of the elected body of the primary trade union organization;
check whether, according to the medical report, the employees involved are not contraindicated to work overtime;
compensate for work in excess of the established working hours for employees;
reflect in the collective agreement or local regulation the procedure for attracting employees to work overtime, providing additional days of rest and the mechanism for calculating the monetary compensation for overtime (for example, whether increased overtime pay will include bonus payments);
keep a separate overtime log and use it to track that employees do not work more than 120 hours a year.

In case of violation of the procedure for attracting an employee to overtime work, the employer is liable in accordance with Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation - a fine from 30,000 to 50,000 rubles, and the official who committed the violation - from 1,000 to 5,000 rubles. In case of committing a similar violation repeatedly - under Part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation - the fine increases significantly.

When is overtime possible?

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

- if necessary, perform (finish) the work begun, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if failure to perform (non-completion) of this work may lead to damage or destruction of the employer's property (in including the property of third parties held by the employer, if he is responsible for the safety of this property), state or municipal property, or endanger the life and health of people;

- when carrying out temporary work to repair and restore mechanisms or structures in cases where their malfunction may cause a significant number of employees to stop working;

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

In such situations, the employer will have to obtain the written consent of the employees. How to do this, we will tell a little later.

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

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

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

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

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

Overtime compensation

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

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

- collective agreement;

- local regulations;

- an employment contract.

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

Note that most questions arise in the case of payment for overtime work with a summarized accounting of working time. To solve them, we advise you to refer to the Recommendations on the use of flexible working hours at enterprises, institutions and organizations of the sectors of the national economy, approved by the Decree of the USSR State Labor Committee N 162, All-Union Central Council of Trade Unions N 12-55 of 05/30/1985.

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

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

The procedure for calculating overtime pay, set out in clause 5.5 of the said Recommendations, was recognized by the Supreme Court of the Russian Federation in Decision N AKPI12-1068 of October 15, 2012 as correct, although the Ministry of Health and Social Development gave other explanations. Recall that the department in Letter No. 22-2-3363 dated 31.08.2009 recommended that overtime work be paid at the end of the accounting period: the first two hours of work - at least one and a half times, all other hours - at least double the amount. That is, if an employee had 19 hours of processing at the end of the accounting period, then two hours should be paid at one and a half times, and 17 hours at double the rate.

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

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

2. Additional rest. Instead of increased payment Art. 152 of the Labor Code of the Russian Federation allows an employee to receive additional rest time for overtime work. How long should this rest be? Certainly not less than the time worked overtime. That is, if an employee has worked three hours in excess of the normal working time, then the additional rest provided as compensation should be no less.

Note! Overtime work of employees of FIFA, FIFA subsidiaries, FIFA counterparties, confederations, national football associations, the Russian Football Union, the Russia-2018 Organizing Committee, its subsidiaries, whose labor activity is related to the implementation of events, is compensated by the provision of additional rest time, but not less than time worked overtime, taking into account the plans of the relevant organizations for the implementation of activities, unless otherwise provided by agreement of the parties to the employment contract. At the same time, the requirements of Art. 152 of the Labor Code of the Russian Federation (Article 11 of the Federal Law of 07.06.2013 N 108-FZ “On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup and amending certain legislative acts of the Russian Federation”).

Overtime procedure

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

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

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

— workers with disabled children;

- workers caring for sick family members.

2. Obtain employee consent. Some employers include in the employment contract a condition that, if necessary, according to the order, the employee can be involved both in overtime work and in work on weekends and at night. They believe that since the employee has signed an employment contract with such a condition, he has already agreed to perform overtime work and his written consent is not required. However, this is not the case: it is impossible to fix in the employment contract the consent to perform overtime work, the written consent of the employee must be obtained every time it becomes necessary to involve him in such work. This position is supported by court decisions. For example, the Chelyabinsk Regional Court, in its Ruling dated April 22, 2014 in case No. 11-4403/2014, indicated that the inclusion in the employment contract of conditions providing for the obligation of the employee to perform work outside the working hours established for the employee, as well as on weekends and non-working holidays is contrary to labor law.

So, in order to receive a response from the employee about his consent or disagreement to perform overtime work, he needs to send a notification indicating the reasons that made it necessary to involve the employee in such work. Let's give one more nuance: when notifying disabled people, women with children under the age of three, as well as mothers, fathers raising children under the age of five without a spouse (wife), employees with disabled children or caring for sick members families, fathers raising children without a mother, and guardians (custodians) of minors in the document must inform them of the right to refuse to perform overtime work.

So, if the employee does not agree to work overtime, he will have to offer to work overtime to another employee, while disciplinary measures cannot be applied to the one who refuses, since they will be declared illegal (see, for example, the Appeal ruling of the Chelyabinsk Regional Court dated April 22, 2014 in the case No. 11-4380/2014). The exception is the cases referred to in Art. 99 of the Labor Code of the Russian Federation, when it is not necessary to obtain the consent of the employee.

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

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

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

4. We issue an order. If the employee agrees to work overtime and he has no medical contraindications, an appropriate order is issued. There is no unified form of such an order, therefore it is drawn up in an arbitrary form.

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

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

Finally

- ask for the written consent of the workers and the opinion of the elected body of the primary trade union organization;

- check whether, according to the medical report, the employees involved are not contraindicated in working overtime;

Compensate for work in excess of normal working hours.

Subject to the requirements of Art. Art. 99 and 152 of the Labor Code of the Russian Federation, any court and GIT will be on your side.

In the article, we will consider what is meant by overtime work, what guarantees and compensations are due to employees, how to apply for involvement in it, and, most importantly, how to correctly calculate and pay for such work.

What kind of work is considered overtime?

Overtime work complies with the conditions: (part 1 of article 99 of the Labor Code of the Russian Federation):

performed at the initiative of the employer;
it goes beyond the limits of the length of working time established for the employee - daily work (shift).

If an employee is delayed at work on his own initiative, such work is not considered and is not paid as overtime (Letter of Rostrud dated 18.03.2008 No. 658-6-0).

Also, the performance of labor duties within the framework of an irregular working day is not recognized as overtime work.

If the organization has adopted a summarized accounting of working time, then in this case, overtime is considered to be work established in excess of the normal number of working hours for the accounting period. The employer needs to determine the accounting period (month, quarter or other period up to a year) in the internal labor regulations. This is necessary for the correct calculation of hours worked by the employee overtime (Article 104 of the Labor Code of the Russian Federation).

Involvement in overtime work should not be systematic, it can occur sporadically in certain cases (Rostrud letter dated 07.06.2008 No. 1316-6-1).

Length of overtime

The normal working time is 40 hours per week (Article 91 of the Labor Code of the Russian Federation). The duration of overtime work should not exceed four hours for each employee for two consecutive days and 120 hours per year (part 6 of article 99 of the Labor Code of the Russian Federation).

Tip one: in reflect the time worked by the employee overtime in the time sheet (for example, in the form N T-12 or N T-13, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1). The obligation of the employer Ensure accurate records of overtime for each worker. Overtime hours in the timesheet, mark the letter code "C" or the number "04", under which the number of hours of processing is indicated.

True, for some categories of workers, a reduced working time is established, which is normal for them (Article 92 of the Labor Code of the Russian Federation). These include, in particular:

minor workers - from 24 to 35 hours a week, depending on age;
disabled people of group I or II - no more than 35 hours a week;
employees whose working conditions at their workplaces, according to the results of a special assessment of working conditions, are classified as harmful working conditions of the 3rd or 4th degree or dangerous working conditions - no more than 36 hours a week;
women working in the regions of the Far North (Article 320 of the Labor Code of the Russian Federation);
teachers (Article 333 of the Labor Code of the Russian Federation);
health workers (Article 350 of the Labor Code of the Russian Federation).

The rules regarding overtime work apply both to employees at the main place of work and to part-time workers.

Example 1 . The accountant has a five-day working week and an eight-hour working day from 9.00 to 18.00 (with a lunch break from 13.00 to 14.00). The manager asked the accountant to stay until 20.00 to prepare a report for him. The time interval from 18.00 to 20.00 in this case is overtime work.

Example 2 The locksmith works 5 days a week - from Monday to Friday from 9.00 to 18.00. To eliminate the accident, he was called to work on Saturday from 10.00 to 20.00. Does this count as overtime work?

No, this is considered work on a day off and is regulated by Art. 153 of the Labor Code of the Russian Federation. Thus, if a locksmith receives a salary and has worked out a monthly norm of working time, then his work on a day off must be paid in the amount of at least double the hourly rate in excess of the salary (part 1 of article 153 of the Labor Code of the Russian Federation). Work performed on non-working holidays is also not considered overtime.

Who should not be required to work overtime

The following employees are prohibited from working overtime:

pregnant women (part 5 of article 99 of the Labor Code of the Russian Federation);
persons under the age of 18,

The exception is:

certain categories of creative workers (Article 268 of the Labor Code of the Russian Federation). Their List was approved by Decree of the Government of the Russian Federation of April 28, 2007 N 252;
athletes, if the collective or labor contract, agreements, local regulations establish cases and procedures for engaging in overtime work (part 3 of article 348.8 of the Labor Code of the Russian Federation);
employees during the period of validity of the student agreement (part 3 of article 203 of the Labor Code of the Russian Federation);
other workers (as a rule, restrictions are established for medical contraindications, for example, for persons with an active form of tuberculosis - Decree of the Council of People's Commissars of the USSR of 01/05/1943 N 15; drivers admitted to driving a vehicle as an exception due to a special state of health - Sanitary rules on occupational health of car drivers, approved by the Ministry of Health of the USSR on 05.05.1988 N 4616-88).

In addition, for some categories of employees there is a special procedure for engaging in overtime work. The employer is obliged:

obtain the written consent of the employee;
make sure there are no medical contraindications;
familiarize employees against signature with the right to refuse to perform overtime work.

Such employees include (part 5 of article 99, article 259, article 264 of the Labor Code of the Russian Federation):

disabled people;
women with children under the age of three;
mothers and fathers raising children under the age of five without a spouse;
workers with disabled children;
employees caring for sick members of their families in accordance with a medical report;
guardians (custodians) of minors.

Involvement in overtime work with the consent of the employee and without his consent

By order of the employer, an employee without his consent can be involved in overtime work: (part 3 of article 99 of the Labor Code of the Russian Federation):

to prevent a catastrophe, industrial accident, eliminate their consequences;
industrial accident or liquidation of their consequences;
to eliminate the circumstances due to which the centralized systems of water, heat and gas supply, transport and communications do not function;
in the event of a state of emergency or martial law and in other emergency cases that threaten the population (fires, floods, etc.).

To bring to work on the specified grounds the consent of the trade union organization, since these circumstances are extraordinary. For refusal to perform such work, an appropriate act is drawn up, and the employee is subject to disciplinary liability.

With the written consent of an employee, an employee can be involved in overtime work in the following cases (part 2 of article 99 of the Labor Code of the Russian Federation):

if necessary, perform (finish) the work that has been started, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if failure to perform this work may result in damage or destruction of the employer’s property or endanger life and health of people;
during temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction can cause a stoppage of work for many employees;
to continue work if the replacement employee does not appear, if the work does not allow a break.

The employer is obliged to familiarize certain categories of employees with the right to refuse such work against signature. In the Ruling of November 14, 2006 in case N 4-B06-31, the Supreme Court of the Russian Federation indicated that Art. 371 of the Labor Code of the Russian Federation provides for the obligation of the employer to make decisions taking into account the opinion of the relevant trade union body, even if he is not a member of the trade union.

Tip two: verbal agreements can lead to unnecessary disputes. To avoid this, take the position that all employee-employer agreements are documented. Issue an order for involvement in overtime work and familiarize the employee with it. A unified form of such an order has not been approved, so the employer has the right to develop it independently. In the order, indicate the reason for involving the employee in overtime work, the date the work began, the last name, first name, patronymic of the employee, his position and the details of the document in which the employee expressed his consent to be involved in such work.

Tip three: if the collective agreement or other local regulatory act establishes the amount of the additional surcharge, then indicate this amount in the order. The amount may also be determined by agreement of the parties. Overtime work can be compensated by an increased wage or additional rest time at the request of the employee (Article 152 of the Labor Code of the Russian Federation). If the employee has decided on the form of compensation, include this item in the order as well. Familiarize yourself with the order of the employee under the signature. By the way, the legislation does not oblige the employer to provide additional rest at a time convenient for the employee. However, the parties can always agree.

Additional rest time

At the request of the employee, payment for involvement in overtime work can be replaced by the provision of additional rest time. How long should this rest be?

Rest time cannot be less in duration than the time worked overtime (152 of the Labor Code of the Russian Federation). Thus, if an employee has worked overtime for four hours, then the additional rest time provided to him as compensation must be at least four hours. Overtime work in this case is paid in a single amount.

Additional rest time is not paid in any way and is provided on the basis of an order (instruction) of the employer, with which the employee must be familiarized against signature. By the way, it may not necessarily be a day or a shift. As practice shows, depending on the volume of processing, it can be an hour or several hours.

If the employee is given a whole day of rest, then in the time sheet it should be reflected in the letter code "NV" or the digital code "28" - as an additional day off without pay (Resolution of the State Statistics Committee of Russia dated 05.01.2004 N 1). But the situation when the provided rest time is measured not in days, but in hours or minutes, is not provided for by the Resolution and there is no corresponding code. You can indicate in the time sheet only the time actually worked per day, or independently develop a designation for such a case and fix it in a local regulatory act.

Key points related to overtime work:

ask for the written consent of the workers and the opinion of the elected body of the primary trade union organization;
check whether, according to the medical report, the employees involved are not contraindicated to work overtime;
compensate for work in excess of normal working hours;
Reflect in the collective agreement or other local regulation the procedure for involving employees in overtime work, providing additional days of rest and the mechanism for calculating the monetary compensation for overtime (for example, whether increased overtime pay will include bonus payments);
keep an overtime log and use it to keep track of employees not working more than 120 hours a year.

In case of violation of the procedure for attracting an employee to overtime work, the employer is liable in accordance with Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation is a fine from 30,000 to 50,000 rubles, and an official who committed a violation - in the amount of 1,000 to 5,000 rubles. In case of committing a similar violation repeatedly - under Part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Everything - learn how to competently formalize labor relations from hiring to dismissal.

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Regulation of overtime work by the labor legislation of the Russian Federation

Features of overtime pay

Distinctive features of payment for overtime work, irregular work schedule and work on weekends and non-working holidays

Document flow when engaging an employee to work overtime

The employer has the right to involve the employee to work outside the working hours established for this employee in accordance with the legislation of the Russian Federation and the internal regulations of the enterprise that establish labor regulations.

According to Art. 99 of the Labor Legislation of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), overtime is recognized as work performed by an employee at the initiative of the employer outside the working hours established for the employee (daily work (shift)), and in the case of summarized accounting of working time - in excess of the normal number of working hours for the accounting period .

Features of attracting company employees to work overtime

The employer may involve the employee in overtime work with his written consent in the following cases:

if necessary, perform (finish) the work begun, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if failure to perform this work may entail damage or destruction of the employer’s property (including property of third parties held by the employer, if the employer is responsible for the safety of this property), state or municipal property, or endanger the life and health of people;
in the performance of temporary work on the repair and restoration of mechanisms or structures in cases where their failure may cause a significant number of employees to stop working;
to continue work if the replacement employee does not appear, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift with another employee.

The employer may involve the employee in overtime work without his consent:

in the performance of work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
when performing socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) sanitation systems, gas supply, heat supply, lighting, transport, communications systems;
in the performance of work, the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency situations, i.e. in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics), and in other cases endangering the life or normal living conditions of the entire population or part of it.

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

Note!

It is not allowed to involve pregnant women and employees under the age of 18 in overtime work. Involvement in overtime work of disabled people, women with children under the age of three years, is allowed only with their written consent and provided that this is not prohibited to them for health reasons in accordance with a medical report. At the same time, disabled people, women with children under the age of three, must be familiarized with their right to refuse overtime work against signature.

The duration of overtime work should not exceed for each employee 4 hours for two consecutive days and 120 hours per year. It is the employer's responsibility to ensure that each employee's overtime hours are accurately recorded.

Features of overtime pay

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

For your information

Specific amounts of payment for overtime work may be determined by a collective agreement, a local regulation or an employment contract.

At the request of the employee, overtime work, instead of increased pay, may be compensated by providing additional rest time, but not less than the time worked overtime. In some cases, critical situations arise between the employer and the employee, especially when it comes to increased pay and time off. So, for example, knowing their rights, an employee may stay late at work, and then require the employer to pay for all his “overtime” work or provide additional rest time.

However, this is fundamentally wrong - according to the letter of the Federal Service for Labor and Employment dated March 18, 2008 No. 658-6-0, overtime work is allowed with the written consent of the employee, with the exception of cases listed in Art. 99 of the Labor Code of the Russian Federation, when the employer has the right to do this without his written consent. Overtime work is paid at an increased rate, but at the request of the employee, instead of increased pay, it can be compensated by providing additional rest time, but not less than the time worked overtime. If the employee remains at work on his own initiative, the employer is not obliged to provide him with additional time off.

Features of documenting overtime work

Overtime work is not the norm for the functioning of an enterprise, and in most cases, in order to involve an employee in overtime work, it is necessary to obtain his written consent (with the exception of work necessary to prevent or eliminate the consequences of a disaster, work to provide water, gas supply, lighting, etc.). , work in emergency and military situations). In this regard, the inclusion in local regulations or labor contracts of a condition on the consent of the employee to work overtime is a gross violation of labor laws.

Each case of involving an employee in overtime work must be documented.

Be sure to indicate the specific reason, avoid general phrases like “due to business necessity”, as the concept of “business necessity” does not reveal the true reason for engaging in overtime work.

As a rule, registration begins with the writing of a service (or memorandum) note by the initiator of overtime work, which may be the head of the structural unit of the enterprise. The memo (see example below) must contain the following information:

the reason for attracting employees of the enterprise to work overtime;
a list of employees of the enterprise involved in overtime work;
the period of involvement of employees of the enterprise in overtime work, as well as the time of overtime work;
recipient of information (director of the enterprise or other authorized person who has the right to make appropriate decisions);
date and signature of the initiator of involving employees in overtime work.

On the basis of a memo, the head of the enterprise decides on the advisability of involving employees in overtime work. At the same time, he can call the initiator of overtime work and demand more detailed explanations.

As a rule, the manager puts his resolution on the note, for example, “In order” or other content addressed to the head of the personnel department (for generating notifications and collecting the necessary documents for processing the order) and the chief accountant for correctly calculating the due payments to employees involved in overtime work.

After approval by the head of the enterprise or other authorized person, as a rule, the head of the personnel department generates notifications for each employee involved in overtime work, according to a memo.

The notice of overtime work is drawn up in any form, but must contain the following information:

Full name and position of the employee (employees) involved in overtime work;
reasons for overtime work;
period and time of overtime work;
features of payment for overtime work;
signature of the head of personnel service and date.

Additionally, in this document (or on the reverse side), it is possible to provide a section on the consent / disagreement of the employee to work overtime in the case when the employee has the right to refuse.

A. N. Dubonosov,
Deputy Managing Director for Economics and Finance

The material is published in part. You can read it in full in the magazine.

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